• Globalization refers to the growing integration of economies and societies around the world (as per

the world bank). It is the process of interaction and integration among people, govt. and companies
worldwide.

• Global pertains to or involves the whole world.

• Globalize means emergence of international network of mostly economic systems.

• Globalization involves technological, economic, political, and cultural exchanges made possible
largely by advances in communication, transportation, and infrastructure.

• Globalization leads to growing interdependence of countries resulting from the increasing integration
of trade, finance, people, and ideas in one global marketplace. It is about interdependence of world’s
economies, cultures and populations which is the result of cross-border trade in goods and services,
technology, and flows of investment, people and information.

• Globalization is primarily an economic process of interaction and integration. Economically it involves

goods, services, capital, technology and data.

• As per the UN, “Globalisation is a widely-used term that can be defined in a number of different ways.
When used in an economic context, it refers to the reduction and removal of barriers between national
borders in order to facilitate flow of goods, capital, services and labour… although considerable barriers
remain to the flow of labour.”

• According to the WTO Director-General, Pascal Lamy, “Globalization can be defined as a historical
stage of accelerated expansion of market capitalism, like the one experienced in the 19th century
with the industrial revolution. It is a fundamental transformation in societies because of the recent
technological revolution which has led to a recombining of the economic and social forces on a new
territorial dimension.”

• According to the WHO - “Globalization, or the increased interconnectedness and interdependence

of people and countries, is generally understood to include two interrelated elements: the opening of
borders to fast flow of goods, services, finance, people and ideas across international borders; and the
changes in institutional and policy regimes at the international and national levels that facilitate or
promote such flows. It is recognized that globalization has both positive and negative impacts on
development”.

Globalization is usually understood as a process in which barriers (physical, political, economic, cultural)
separating different regions of the world are reduced or removed, thereby stimulating exchanges in
knowledge and goods. It allows freedom of movement (liberalization) and it promotes mutual reliance

• Thomas Larsen (Swedish Journalist) defined globalization as a process of world shrinkage, of

distances getting shorter, things moving closer. It pertains to the increasing case with which
somebody on one side of world can interact to mutual benefit with somebody on the other side of the
world.

IMF identified 4 basic aspects of globalization

• Trade and Transactions

• Capital and Investment movements

• Migration and Movement of People

• Dissemination of knowledge

Challenges of Globalization are primarily the environmental challenges

• Global Warming

• Cross boundary water and air pollution

• Over-fishing of ocean

Causes of Globalization

• Transportation Steam Locomotive, Steamship, Jet engine, Container ships- enables vast quantities
of goods & commodities to be shipped across the world at low cost
 • Communication Technology telegram, telephone social media (producers are using new forms of
communication to target international consumers), internet (Rise of new e-payment system including e-
wallets, pre-pay and mobile pay), mobil (smart phones enables global shoppers to have easy access to
virtual global markets)

HISTORICAL EVOLUTION OF GLOBALIZATION

• Human societies and civilizations have been interacting.

• Trade links between Sumer and Indus Valley civilization (3000 BC)

IMPERIALISM: (countries conquering other countries- source of polity, economy by conquering)

• Macedonians under Alexander, the Great expanded trade in far and middle East (356-323 BC)

• Roman Empire for 500 years traded throughout Europe and North Africa

• Silk Route 1st century from Western China (Han Dynasty) to Parthian Empire, Babylonia, Egypt and
towards Rome

• Maritime European Empires: Portuguese, Spanish, British, Dutch expanded

• European Trade in 16th and 17th century; where Portuguese and Spanish empires colonized Americas
followed by France and England

• 17th century brought- British East India Company (1600), Dutch East India Company (1602), Portuguese
East India Company (1628) to India

• To conclude, there was Imperial Rome (across Europe, minor Asia, Egypt, middle East, North Africa,
Syria upto Persian borders which expanded from Europe), Imperial India (Mughal Empire), Imperial
Persia (West Asia, middle East), Imperial China (Chinese Imperial dynasty). Spanish Empire in western
Europe upto North Americas, French Imperial in Austria, British Empire- rise of the UK

COLONIALISM: 17th and 18th century in Asia & Africa

• Eastern Imperial states like Mughals, Ottomans faced challenges from rising western power

• Europeans came as traders and established colonies. They took advantages of growing weaknesses of
Mughals.

• British expelled French and Portuguese from India. Expanded in India in 18th and 19th century. Took over
India in 1857

• Pre-world war 1 period (1870- 1914): there was rapid integration of economies in terms of trade flows,
movement of capital and migration of people.

• British changed mode of instructions, language, education system and introduced western culture and
their education system

• Period of De-acceleration of Globalization started between 1st and 2nd world war

• After 2nd world war colonialism was brought to an end.

ANOTHER MILESTONE IN GLOBALIZATION: INDUSTRIAL REVOLUTION/ INDUSTRIALIZATION: shaped

globalization

• Means of production became mechanized/ industrialized (from land to machines); Invention of steam
engine in England

• Factories extracted coal from mines, it became energy fuel

• Economic power increased many times through development of new machines, new techniques.
Invention of telephone, telegraph, internet

• Finished goods were exported from Europe to Japan and other parts of the world. Japan in 1960s
started producing clothes, cars, TV, telephones, modern gadgets, technology

• Protectionist stage

• POST-INDUSTRIAL/ POST-MODERN
• End of Cold war with fall of Soviet Union in Oct. 1988 (from bipolar to unipolar world)

• Victory of liberal democracy

• US became the champion of liberal democracy

• Internet and mobile technologies played an important role: Internet and mobile telephony helped in
global opening up of markets. Outsourcing and shifting of production processes took place.

• US was successful in exporting their political ideologies/ ideas, economic practices, technology and
industrial achievements and developments

• After collapse of USSR, liberalized economy made way for WTO and free market economy

• GLOBALIZATION UNDER WTO:

• Led to unequal access to trading opportunities, economic opportunities, business opportunities

• Western world are the core states including America. Increasing and complex movement of free
markets through information systems.

History in Brief

• 1800- 1899: Technology breakthroughs & industrialization- steamships (1807), rail roads and telegraph
accelerated global commerce, alongwith industrialization and mass production. Rapid population
growth, increase in demand for goods and services. Gold standard adopted (currencies convertible to
specific amount of gold)

• 1900- 1950: Rise of automobiles and airplanes. In 1938 first trans-atlantic flight from Berlin to New York

• 1914- 1918: World war 1 (ignited by nationalist conflict) Havoc on global economies and trade

• 1920- 1929: Gold standard adopted with Protectionist policies.

• 1929- 1939: Great Depression and Protectionism. Countries left gold standard. Rise of Nazism.
Regional trade blocks formed. Britain and France declared war against Germany

• 1939- 1945: World war 2, Allies waged war against Nazism and Fascism

• 1944: Bretton Woods Conference seeks some order. Liberalize trade and revive economic growth.
USSR didnot ratify the agreement; Cold war starts (1945-1991) and this deepens Russian isolation from
western trade order.

• 1948: GATT- 1ST Multilateral Trade Agreement

• 1950- 1969: Computers pave way for new commercial breakthrough. Trade liberalization accelerates
1970- 1979: End of fixed exchange rates

• 1980- 1989: Debt crisis. UK- US embrace free market economy. Rise of Financial globalization.

• 1989- 1991: End of Cold war. Collapse of USSR produces greater cooperation in international
institutions, increasing trade and financial integration

• 1990-1999: Internet connects world. Powerful MNCs dominate global economy.

• 1993: EU links continent. Formation of EU solidifies single market that began in 1950s leading to
creation of Euro currency in 1999

• 1994: NAFTA, the first trade agreement between rich and poor country (US/ Canada and Mexico)

• 1995: WTO establishes replacing GATT

• 1997: East Asian Financial crisis (currency devaluations started in Thailand and effects felt all over)

• 2000: China joins WTO and becomes world’s largest developing economy

• 2008: Global financial crisis. Ignites backlash (International banking crash and European debt crisis)

• 2016: BREXIT, UK votes to leave EU, complicates cross-border movement of trade

 • 2017- 2018: President Trump repudiates trading system, withdraws from Trans-Pacific Partnership
(TPP) and abandons NAFTA (now USMCA ratified in 2020)

FORMS OF GLOBALIZATION

1. Embodied Globalization: Movement of People (oldest form of Globalization)

2. Agency-extended Globalization: circulation of agents of different institutions, organizations and polities,

including imperial agents.

3. Object-extended Globalization: movement of commodities and other objects of exchange

4. Disembodied Globalization: transmission of ideas, images, knowledge and information across world
space

Theories of globalization

Theories can broadly be divided into three categories:

1. Globalization is ongoing process since the dawn of history 5000- 10,000 year time frame.

2. It is co-terminus with development of capitalism and modernity and hence 500 year time frame.

3. It is a recent phenomenon associated with processes of post-industrialization, post-modernization or re-

structuring of capitalism, hence 20-30 year time frame.

Broadly, there are three theories of development (through globalization):

1. World- Systems Theory: World is considered as a unit and is divided into three group of countries: Core
countries- rich and developed countries (Western Europe & USA), Periphery countries- poor and
dependent states (Latin America and Africa) and Semi-periphery countries- semi-industrialized (India
and Brazil). Viewed as synonymous with birth and spread of world capitalism. Inequality between states.
Talks about capitalist world economy. Criticized for being a fluid model

2. Modernization Theory: All countries follow a similar path of development, i.e. from traditional to modern
society. Traditional countries with some help become modern. Reflects Liberalism- natural human
desire for economic welfare and political liberty.

3. Dependency Theory: was reaction to modernization theory. It looks at inequalities between countries-
core and periphery countries. Poor countries are in an unequal economic position and they don’t even
have opportunity to improve and develop. They will remain poor and dependent on wealthier nations.

4. PERSPECTIVES/ THEORIES OF GLOBALIZATION:

5. Hyper-globalist: Globalization defines a new era in which people everywhere are increasingly subject to
disciplines of global marketplace. MNEs and IGOs are key political actors. Promoters of borderless
world. Nation-state is in decline according to them.

6. Sceptics: Globalization is a myth which conceals reality of international economy segmented into major
regional blocs in which national govts. remain very powerful. Opposed to the hyper-globalist view.
Globalization concentrated only in North America, Europe and Japan.

7. Trans-formationalist: Globalization occurs as states and societies across globe are experiencing
process of profound change as they try to adapt to more interconnected but highly uncertain world.

Other theories are:

- Theory of Liberalism

- Theory of political realism

- Theory of Marxism

- Theory of Constructivism
Theory of Post-modernism
Theory of Feminism
 - Theory of Transformationalism
Theory of Eclecticism

- Theory of Liberalism: Globalization is market led extension of modernism. Result of natural human
desires for economic welfare and political liberty. It functions in the form of: Technological advances and
suitable legal and institutional arrangement to enable markets and liberal democracy to spread.

- Theory of Political Realism: Globalization has been explained as strategy in contest for power
between several major players in contemporary world politics (competition of power). The hegemon
state defines international rules and institutions that advance its own interests and contain conflicts
between other states. Its about power, power struggles and role of states in generating global relations.
All states are not equal in globalization. Importance to sovereignty of states. Uneven nature of
globalization.

- Theory of Marxism: Marxism theory is concerned with modes of production, social exploitation through
unjust distribution. According to this, globalization happens because trans-world connectivity enhances
opportunities for profit making and surplus accumulation. Marxism rejects liberalism and political realist
explanation of globalization. Neo-Marxists in Dependency and World systems theories examine
capitalist accumulation on a global scale on lines of core and periphery countries. Globalization happens
for profit making.

Its criticism is that US hegemony, west-centered cultural dominations, masculinism, racism etc. are not
reducible to class dynamics within capitalism

• Theory of Constructivism: Constructivists concentrate on ways that social actors construct their world-
both within their own minds and through inter-subjective communication with others. People have
constructed their own world with images, symbols of exchanges, language, etc. Conversation and
symbolic exchanges construct ideas of the world, rules for interaction and ways of being and belonging
in that world. They conceive of themselves as inhabitants of a particular global world.

• Theory of Post-Modernism: Power structures shape knowledge, certain knowledge structures support
certain power hierarchies. It is supported by rationalism, subordination of nature to human control.
Modern rationalism produces society with economic growth, technological control, bureaucratic
organization and disciplining desires. This is kind of cultural imperialism. Relativity, subjectivity and
individuality is reflective of post-modernist theory. It is a late 20th-century movement characterized
by broad skepticism, subjectivism, or relativism; a general suspicion of reason; and an acute sensitivity
to the role of ideology in asserting and maintaining political and economic power.

• Theory of Feminism: Biological sex is held to mould the overall social order and shape the course of
history, presently globality. The concern is- status of women, particularly their structural subordination to
men. Women have tended to be marginalized, silenced and violated in global communication. According
to study (Rio 2015), women are poorer than men in every state regardless of education or geographic
location.

• Theory of Trans-formationalism: Globalization reflects increased inter-connectedness in political,

economic and cultural matters across the world creating a shared social space. It may be defined as a
process which embodies transformation in spatial organization of social relations and transactions,
expressed in trans-continental or inter-regional flows and networks of activity, interaction and power.

• Theory of Eclecticism: Each of these theories of globalization highlights certain forces that contributes
to its growth. Draws upon multiple theories

PLAYERS IN GLOBALIZING WORLD

1. Multi-national Corporations (MNCs/ TNCs): They act as suppliers. Production is done in countries where
wages are low, costs are low and taxes are low in order to make profit- basically in developing
countries. Products tend to be sold in developed countries to people who have disposable income.

2. International Banking: Act as facilitators. They are world’s local banks, sell financial services. They
benefit banks, corporations, economy, financial elites. There are negative consequences- income can
become concentrated in the hands of the wealthy (financial elites). Income Inequality
3. International Govt. Organizations/ International Institutions: Regulators/ Promoters. WTO (reduces
restrictions on international trade), World Bank (gives loans to developing countries), IMF (maintain
stable exchange rates to increase world trade)

4. Governments: As suppliers of financial assets, it caters to the needs of institutional investors. States in
emerging market economies are becoming exporters of capital rather than its importers. States are into
intersecting national law with foreign actors by competitive de-regulation, re-regulation linked to
preferences of foreign capital (For instance- India’s policy on FDI). States have given way for
international treaties with constitutional effect. State mediates adherence to international capitalist
competition. They are proactive in development of financial globalization, economic liberalization
accompanied by domestic welfare policies. They endure internal changes as a result of their renewed
engagement with global capital.

5. Transnational Networks of activities: Through flow of information and interconnectedness of global

society, it alters national and global politics. For example by pursuing environmental and Human Rights
agendas. (Power of social movements led to end of cold war, rise of capitalism). Opportunities have
been provided by Information Technology networks- research networks- alumni networks. Technology is
an integral part of these networks. IT led to decentralization and denationalization of corporations and
the state led to globalization of western style liberal market economy and decline of nation state.

6. Powerful individuals forming transnational Elites: They take fate of global societies in their hands- away
from ordinary politics to Brussels, New York, Davos, etc. They are in a privileged position to influence
global politics or law. Those who control means of production govern society. Economic dominance
instrumentalize political power to further its own ends. Connectedness of global elites is transnational in
scope.

7. Communities of Experts: providing technocratic solutions.

ROLE OF MARKETS IN GLOBALIZING WORLD

 Globalization: refers to integration of markets in global economy, leading to increased

interconnectedness of national economies.

 Markets (where globalization is significant) includes:

 Financial markets: i.e. capital markets, money and credit markets, insurance markets

 Commodity markets: i.e. markets for oil, coffee, tin, gold

 Product markets: i.e. markets for motor vehicles and consumer electronics (new and emerging
markets for products are required)

 Sports & entertainment: Globalization of sports and entertainment is a feature of 20th and early
21st century

Globalization and Markets

 Economies can control market through their comparative advantage as part of competition. Comparative
advantage: incentive for countries to benefit from what each country specialize to produce the best by
using the least amount of resources. It makes production more efficient, promotes economic growth,
and lowers prices of goods and services, making them more affordable especially for lower-income
households

 Access to larger markets: further leads to higher demand for their products and benefit from economies
of scale and this reduces average production costs.

 Worldwide access to cheap raw material and therefore firms become cost competitive in own markets
and international markets.

 Generate increased profit for share-holders.

 Sharing of knowledge and technology between countries through markets.

 Increased flow of inward investments.

Concerns of Market in globalizing world

 Maintaining consistency in brand image: and therefore also the brand value

 Ability to leverage ideas quickly and efficiently

 E-marketing and its strategies

 Standardization of products: an important requirement in globalizing world

Operation/ Role of Markets

 Markets are important because they bring together willing buyers and sellers

 Free market occurs only when no single buyer or seller can determine price

 Markets do not exist in institutional vacuums but are embedded in social structures

 Markets are social arenas where firms, their suppliers, customers, workers and govt. interact.

 Social structures in markets play an important role in- reducing information costs, giving access to
knowledge about competition, allow market actors to trust one another and reduce resource
dependencies.

 Local cultures have their impact on particular markets.

 Creation of markets require the intervention of states (Polyani, 1957). Govts. would have to intervene in
markets to stabilize them and to provide social protection to workers.

 Many firms who do not get the resources they need to survive, leads to high rates of failure at beginning
of market opening projects.

 Markets largely depend on govts., laws and larger cultural understandings.Market rules have big effects
on economic development.

 The trend towards external liberalization (opening up of free markets) has accelerated the pace of
globalization.

 Market forces are controlled by business entities. They have power to influence policies- national and
international. Their sole motive is profit, they are sole-less entities.

 Market forces are powerful and they can even yield socially damaging outcomes.

 Institutions, customs, laws and traditions influence the functioning of markets.

 States prods domestic firms to compete in global economy and to constantly upgrade their
organizational and technical capabilities.

 Markets need to be conscious of the intellectual property regime.

 Globalization boosted urbanization and female labour participation.

 Globalization also boosts Competitiveness.

 Offshoring and allocating production in multiple locations increases productivity, lower prices, increases
quality and product diversification which is good for consumers but not for smaller firms and their
employees.

 Well managed companies have moved from customizing items to offering globally standardized
products that are advanced, functional, reliable and low priced.

 Global companies concentrate on what everyone wants.

 Technology has made isolated places and impoverished people eager for modernity’s allurements.
Almost everyone everywhere wants all things they have heard about, seen or experienced via new
technologies. This results in emergence of global markets for standardized consumer products
on unimagined scale of magnitude.
  The company cannot sell last year’s models, or lesser versions of advanced products in less-developed
countries. The situation is no more where prices, margins and profits abroad were generally higher than
at home.

 There is no more national or regional preference The difference between MNCs and global corporations
is that MNCs operate in number of countries and adjust its products and practices in each- at high
relative costs. Whereas the global corporation operates with resolute constancy (which is same
everywhere)- at low relative costs as if entire world were a single entity; it sells the same things in the
same way everywhere.

 Companies (MNCs) customize products for particular market segments, they know that success in a
world with homogenized demand require a search for sales opportunities in similar segments across
globe in order to achieve economies of scale necessary to compete. Whereas the global competitor will
seek to standardize its offerings everywhere. It will digress from this standardization only after
exhausting all possibilities to retain it and will push for reinstatement of standardization whenever
digression and divergence have occurred.

 MNCs know a lot about a great many countries and adapts to supposed differences. It accepts national
differences. By contrast, global corporations know everything about one great thing. It knows about the
absolute need to be competitive on worldwide basis as well as nationally and seeks to drive down prices
by standardizing what it sells and how it operates. It treats the globalizing world as composed of few
standardized markets rather than many customized markets. It seeks and works towards global
convergence.

 Global competition spells the end of domestic territoriality, no matter how small the territory may be.

 In the process of world homogenization, modern markets expand to reach cost-reducing global
proportions. With better and cheaper communication and transport, even small local market segments
protected from distant competitors now feel the pressure of their presence.

 Basically market interest has become a mindset because the sole motive of the multinational
companies, who are the main players in globalization, is profit.

 Common interest is the reason why WTO was formed. The developing countries were brought on board
by making them believe that it is in their best interest to open up their markets in exchange for
technology transfer and investment. However, market interest is the reality of today wherein everything
is tailor made to suit the financial interests of the MNCs and TNCs.

SITES OF GLOBALIZATION

 Sites of globalization can be analysed through routes, cities and market places.

 To start with, globalization can be dated back to human civilization and the site of globalization would
therefore be the route to discoveries. And that would be the oceans which were considered as the main
vehicle for the exchange of cultures and the progress of civilizations.

 Thereafter came the opening up of the commercial routes between the extreme south of Portugal and
the west coast of Africa and the colonisation of the Atlantic islands.

 New products appeared, especially the cultivation of sugarcane in Madeira, starting in 1452, which
opened up a new segment of international business, archaeological evidence of which has also been
discovered in Silves.

 The first real global international trade started in Lagos (Nigeria), continued in Lisbon (Portugal), and
was then sustained by Castile and by the Spanish Monarchy in Seville and the Low Countries (Bruges,
Antwerp); the process was concluded by the hegemony of the Dutch (Amsterdam) and the English
(London), who renewed it with a new economic geopolitics, and from which they profited from the 17th
century onwards.

 The phenomenon of globalization is omnipresent, well-documented, mapped, and quantified in

economic exchanges between states, large MNCs, flow of passengers, freight traffic, airport hubs,
maritime corridors, and ‘global cities’ that concentrate business and capital (Sassen 1991).

 More inconspicuous is the globalization of peripheral areas and small players also termed as
“globalization from below”, that is, globalization driven by transnational movements of people and often
 characterized by informal relations. The peripheral areas which have now become fully part of
globalization are strategic for understanding globalization and its new global and significant impacts on
the margins of the world.

 These places are distant from heavily trafficked roads, far from global cities and main marketplaces, and
not visited by major companies and investors. In such places, a large number of transnational
exchanges takes place that are usually very informal and often poorly quantified.

 The traditional divisions between North/South, developed/developing countries, rich/Third World

countries are no longer effective for understanding the complexity of the contemporary world- the
globalizing world

 During the 2000s, the globalization of supply routes and market places, in which transnational migrants
from multiple geographical horizons meet, increased. Around the Mediterranean Sea, there was an
expansion of transnational space in the east where Istanbul (Turkey) and Dubai (United Arab Emirates)
had become globalized market places. Dubai is particularly emblematic of this process (Marchal 2001)
in which the trade routes of the Mediterranean, Middle East, East Africa, and Eastern Europe converge
and intersect.

 The collapse of the USSR, the generalization of free trade, and the importance of counterfeiting, in
addition to political events like September 11, 2001 attack had a strong impact, resulting in China and
India becoming the usual destinations for goods for Muslim traders who had increasing problems
travelling legally to Europe, where they had traditionally traded.

 The economic crisis in 2008, the slowdown in economic outlets for products in the North, the role of
trade movements, and the growing search for new consumer markets have amplified South/South
movements among the Global South countries.

 More recently, the Arab Spring (2010) and border issues in China, Europe, and the United States, which
open occasionally and more often close or reorient the trade routes of migrant-entrepreneurs, are all
factors that influence the terms of trade structurally.

 On this global map of transnational exchanges, China occupied an increasingly important place.

 Actors and observers of globalization today talk of the revival of the Silk Road, the growing power of
Chinafrica, and the increasing influence of BRICS within the global economy.

 The changing geopolitics can be understood in the context of post-September 11 whereby a growing
Arab world is turning away from the West to rediscover China.

 International institutions like the World Bank see a new economic frontier in the Silk Road between
Africa, China and India. Every day, intercontinental trade between Africa, Latin America and Asia
becomes increasingly evident. 

 The economic decline of the West gave rise to a new center, China, from where global trade routes
depart, mostly overseas but sometimes overland, headed for markets with influence worldwide. China’s
rise, and the densification of the global transnational trade network, is a turning point. One must see
these dynamics to understand how these inconspicuous globalizations lead us towards understanding
the global scale. Such an approach enables us to sketch out an economic world that challenges
the traditional “world-system” theory and creates a new map of centers and peripheries.

 Markets that have moved from Local to Global– the markets in Yiwu, China, a spare parts workshop in
Pune, India, weekly markets in the East African countryside, the clothing industry districts in Istanbul
represent the markets in inconspicuous places moving from local to global world.-

 Moving away from New York, Tokyo and London, this inconspicuous globalization, with its routes, actors
and trade, is based on a whole string of cities of varying sizes, such as Shanghai, Dubai, Mumbai, in
what we have termed the “-ai-ending Megacities club,” and these have become important sites of
globalization.

 These cities connect various transit routes and the small and large actors of globalization pass through
them.

 The international hubs, warehouses, business areas and trading centers that Shanghai, Dubai and
Mumbai have become, should not overshadow all the other secondary cities, but on which transnational
 networks and routes are based. It should be noted that this shift has been restricted to only a few
megacities, ‘globalizing’ sites. A new group of sites have appeared such as Singapore, Hong Kong,
Dubai, Sao Paulo (Brazil), Mexico City, Johannesburg and Lagos and other, mostly secondary and
small cities. These sites have become anchoring points of routes, places of production, sales and
product consumption, and therefore are gaining importance in globalizing world.

 The marketplaces where this kind of globalization unfolds often combine several functions:
consumption, transactions, transit, and warehousing. Whatever their size, these marketplaces are
usually oriented towards wholesale or retail. These marketplaces, usually created by local inhabitants,
today tend to occupy a growing place in urban areas.

HISTORY OF INTERNATIONAL LAW

Early Origins of International Law

 The early Roman law- Jus Civile was applied only to Roman citizens. It was formalistic, hard and
reflected the status of a small, unsophisticated society. This could not provide a relevant background for
an expanding, developing nation.

 Jus gentium overrode the narrow Jus Civile

 Simplified rules to govern the relations between foreigners, and between foreigners and citizens was
provided by the creation of- Jus gentium

 Jus gentium became the common law of the Roman Empire and was deemed to be of universal
application. It also remained a national law for the Roman Empire.

 One of the most influential of Greek concepts taken up by the Romans was the idea of natural law.

 Certain Roman philosophers incorporated those Greek ideas of natural law into their own legal theories.
The law of nature was held to have an existence over and above that of the jus gentium.

Middle Ages and the Renaissance

 This era was characterized by the authority of the organized Church.

 There was the authority of the Holy Roman Empire and the supranational character of canon law.
English law established the Law Merchant, a code of rules covering foreign traders, and this was
declared to be of universal application.

 Throughout Europe, mercantile courts were set up to settle disputes between tradesmen at various
fairs. This constituted an embryonic international trade law.

 Thereafter Europe was marked by a period of renaissance which emerged in the modern era of
scientific, humanistic and individualistic thought.

 With the introduction of printing during the 15th century, it provided the means to disseminate knowledge,
and there was undermining of feudalism in the wake of economic growth and the rise of merchant
classes provided background to the new enquiring attitudes taking shape.

 The rise of nation states of England, France and Spain, in particular, characterized the process of
creation of territorially consolidated independent units, in theory, in doctrine and also in fact. This led to
a higher degree of interaction between sovereign entities and thus the need to regulate such activities in
acceptable manner.

 The city states of Italy struggled for supremacy. The theory of international law was influenced by
rediscovery of Greco-Roman ideas.

 The law of Nations was heralded as part of the universal law of nature.

 While the sovereign powers within the state became all important, the sovereign could not be bound by
the laws he himself made. He was subject to the laws of God and of nature. The state was regarded as
being above the law.

 The early theories of international law were deeply involved with the ideas of natural law. There was
merging of Christian and natural law ideas.
 By this period international law began to emerge as a separate topic to be studied within itself, although
derived from the principles of natural law.

History of Modern International Law

 History of Modern IL can be studied as part of materialist and idealist history of international law.

 Materialist history of International: how IL evolves its rules, doctrines and institutions.

 Idealist history of International Law: development at the level of ideas; ideas in turn influences
materialist history.

 This new approach to modern International Law can be traced back to the Spanish philosopher-
Francisco de Vitoria (1480 - 1546), who was the professor of theology. His lectures were preserved by
his students and published posthumously.

 According to him, international law was founded on the universal law of nature and this means that non-
Europeans must be included within its ambit. He maintained that American Indians should be regarded
as nations within their own legitimate interests and he also talked about the grounds of just cause to
wage a war. Though, Vitoria did not advocate the recognition of Indian nations as equal to the Christian
states of Europe. And he considered opposing the work of missionaries in the territories as a just reason
for waging a war.

 In 15th century, merchants in Europe were trying to unify, small municipalities were there.
There was the belief in divine law. Papal Bull (1493) divided the world in two parts- Spain and Portugal.
Spain and Portugal started to travel the world and so did trade and mercantile. Portugal reached Brazil
and Spain had its presence in Mexico and Peru.

 16th century marked the first phase of capitalism, mercantile capitalism.

 Vitoria’s work “Of Indians and the laws of war” (1532) gives the justification for Spain’s presence in
Americas. Vitoria argued that indigenous people possess reasons hence are bound by Jus gentium.
They have a right to commerce and travel. He also reflected upon justification for war. This reflects the
dynamics of cultural difference as only Christians could wage just war.

 Hence, international law was created through the colonial encounter.

 Then came- Francisco Suárez (1548 - 1617) who was also a professor of theology and who supported
that international law was based upon natural law.

 Fragmented spaces were seen in Europe in the 16th century.

 As capitalism was emerging in Europe and merchant capital extending terrain- they faced critical
problems. Every 50 miles currency would change, laws of dispute settlement would change, measures
of weight would change- all this affected capitalism.

 Capitalism was looking for larger spaces rather than fragmented system- eg: European Union: goods
flow, capital flows and labour flows freely in EU; also Schengen Agreement was on similar lines

 Emerging capitalism and among other things was creation of larger nation states- culmination of
unification of Germany and Italy.

 Impulse of capitalism is to universalize- hence it uses the form of imperialism.

 Capitalism emerging in Europe during the 16th century; and period was identified by Age of slave trade.

 In Spain, intellectuals were trying to justify colonial power.

 Tracing colonial project: why colonialization and how IL evolved to meet those interests Another equally
influential theorist of the time was Alberico Gentili (1552- 1608) who was born in Northern Italy but fled
to England to avoid prosecution for having converted to Protestantism. In 1598, he published De Jure
Belli, which was a discussion on law of war and also contains a section on law of treaties. Gentili who
became professor at Oxford is also called the originator of the secular school of thought in international
law and he minimized the theological thesis.

 17th century was marked by the work of Hugo Grotius, also considered as father of international law.
 Hugo Grotius (1583 – 1645), a Dutch scholar, is a pioneer. He mastered history, theology,
mathematics and the law. His primary work was the De Jure belli ac Pacis which was written during
1623 and 1625. His work refers both to Vitoria and Gentili.

 His work was greatly influenced by Gentili, and he excised theology from international law and
emphasized irrelevance of any conception of a divine law. He remarked that the law of nature would be
valid even if there were no God, a statement which was extremely daring.

 The law of nature now reverted to being founded on reason. Justice was part of man’s social make up
therefore is useful and essential.

 Grotius believed that the natural law came from an essential universal reason, common to all men.

 This rationalist  perspective (because of the basis of reason) enabled Grotius to posit several rational
principles underlying law. Law was not imposed from above, but rather derived from principles.

 Foundation principles included the axioms that promises must be kept, and that harming another
requires restitution. These two principles have served as the basis for much of subsequent international
law.

 Apart from natural-law principles, Grotius also dealt with international custom, or voluntary law. Grotius
emphasized the importance of actual practices, customs and treaties—what "is" done—as opposed to
normative rules of what "ought to be" done. This positivist approach to international law strengthened
over time.

 Grotius conceived of a comprehensive system of international law. He retained the theological

distinction between unjust and a just war.

 One of his most enduring work is on freedom of Seas. He opposed the concept of closed Seas of the
Portuguese and elucidated by English writer John Selden.

 He emphasized that the nations could not appropriate to themselves the high seas as they belong to all.
His theory reflects the Dutch ideas of free trade. He wrote Mare Liberum (1609) in which he argued for
the freedom of Seas which was also his defence in favour of Dutch East India company.

 In 1600, East India company arrives in India to establish the company-state. The Crown takes over in
1857.

 Following Grotius, split was detected and two different schools identified. On one hand there was the
naturalist school exemplified by Pufendorf (1632-94), who attempted to identify international law
completely with law of nature; and on the other hand there were exponents of positivism who
distinguished between international law and natural law and emphasized practical problems and current
state practices.

 One of the initiators of positivist school was Richard Zouche (1590- 1660). He dismissed natural law and
paid little regard to the traditional doctrines.

 This approach is derived from the empirical method (scientific method) adopted by the renaissance
which denied the existence of innate principles and contended that ideas were designed from
experience. The scientific method of experiment and verification of hypothesis emphasized this
approach.

 The international law was re-interpreted in terms of concept not derived from reason but from what
actually happened between the competing states.

 Law of the nations was considered to be about agreements and customs recognized by the states.

 Positivism developed as the modern nation-state system emerged, after the peace of Westphalia in
1648 from the religious wars.

 This period coincided with the supreme power of the sovereign and sovereignty of states.

 In the works of Vattel (1714-67), elements of both positivism and naturalism appear. He introduced the
doctrine of equality of states into international law, declaring that a small republic was no less a
sovereign than the most powerful kingdom.
 Development in cartography (maps) was seen; that’s because capitalism demanded larger spaces to
develop. Therefore, nation states were created.

 Origin of modern international law is traced from the Treaty of Westphalia of 1648.

 This era saw the emergence of positivism; to override natural law

 Positivism focuses on state practice that needs to be harnessed to be accepted and for formation of
norm of international law

 There is dominance of science and its relationship to emergence of positivism.

Language of science in this era was becoming dominant. James Watt (1736-1819) invented steam
engine, Darwin (1809-1882) came up with the evolution of life and the survival of the fittest: Towards the
later part of 18th century and early 19th century.

 19th century:

 The 18th century was all about intellectual ideas and rationalist philosophies and it contributed to the
evolution of the doctrine of international law. Whereas the 19th century by contrast was a practical,
expansionist and positivist era.

 Marx called his socialism as scientific socialism as there was scientific enquiry in the 19th century.

 Positivism was viewed as science: sovereign state was considered as central actor; there was a shift
from natural law to positivism because of science. The basis was scientific-to look at practice of
sovereign states rather than simply relying as reasons.

 The Congress of Vienna marked the conclusion of Napoleonic wars and enshrined the new international
order based upon the European balance of power.

 International law became Eurocentric and preserve of the civilized Christian states into which
oversees/foreign nations could enter only with the consent of and on the conditions laid down by the
western powers.

 Although international law became geographically internationalised through expansion of Europe but it
became less Universalist in conception.

 The relationship between universalism and particularism appears time and again in international law.

 Democracy and nationalism emerged through the wars of French revolution and spread throughout the
continent and changed the essence of international relations.

 Self-determination emerged to threaten the multinational empires of central and eastern Europe while
nationalism reached its peak in the unification of Germany and Italy.

 Democracy brought political influence and a say in the government; it also brought home the realities of
responsibility for wars.

 The industrial revolution mechanized Europe, created dichotomy of capital and labour and this
influenced the world. This gave way for creation of public and private international institutions and
international law grew rapidly to accommodate them.

 In 1815, the Final Act of the Congress of Vienna established the principle of freedom of navigation with
regard to international waterways.

 In 1856 the Commission for the Danube was created and number of other European rivers also became
subject of international agreements.

 In 1865 the International Telegraphic Union was established and in 1874 the Universal Postal Union.

 In Europe conferences were held which contributed to the development of rules of War. The ICRC
which was founded in 1863 helped to promote the series of Geneva conventions and Hague
conferences establishing Permanent Court of Arbitration.

 Positivist theories dominates this century.

 The provisions of international law were ignored in the Napoleonic period, but the Congress of Vienna
re-established and added much, particularly in respect to international rivers and the classification and
treatment of diplomatic agents.

 The Declaration of Paris, abolished privateering, drew up rules of contraband, and stipulated rules of
blockade.

 The Geneva Convention (1864), provided for more humane treatment of the wounded.

 In the 19th century, colonialism was seen as humanitarianism; as it was to uplift and civilize the
uncivilized states. The preamble to General Act of Berlin conference 1885, is about the freedom of trade
in the Basin of Congo which mentions that it is for furthering the moral and material well-being of the
native populations. Further article 6 of the General act mentions that “All the Powers exercising
sovereign rights or influence in the aforesaid territories bind themselves to watch over the preservation
of the native tribes, and to care for the improvement of the conditions of their moral and material well-
being… ...and organized for the above ends, or which aim at instructing the natives and bringing home
to them the blessings of civilization”.

 Regional histories of this time mark the period in which doctrines of international law were contested.

 Contribution of Latin America to development of international law includes Calvo clause (1824- 1903)-
from Argentina: prohibits use of force for collection of debts; Drago doctrine (Argentina- no use of force
to recover debts).

 Latin American states contributed towards the development of doctrines such as the prohibition of
intervention; non- recognition of territory acquired by force; territorial integrity and political
independence; the sovereign equality of states, the abolition of slavery and privateering; human rights;
equality between citizens and foreigners in the acquiring and enjoyment of civil rights; judicial settlement
of international disputes; the uti possidetis doctrine; diplomatic asylum.

 Latin American states participated in both, The First Hague Peace Conference 1899, and The Second
Hague Peace Conference 1907, with regard to the latter, the Drago Doctrine, was introduced to the
Conference and a large number of Latin American states participated in this conference.

 International law in ancient India can be dated back to Kautilya’s Arthashastra in fourth century BC in
which reference is made to war and diplomacy.
Later, contribution is also made by Nilkanta Shastri, C.J. Chacko and others.

 International law in medieval India is reflected through Mughal sovereignty, their composite culture,
treaty relations with Western states.

 There were treaties signed between Maratha and Portuguese in 1779

East India company had signed treaties with local rulers in India.

 According to Prof. R.P. Anand, freedom of the seas “is one principle which Europe acquired from Asia
through Grotius...” He further stated that we must be “aware of the long tradition of freedom of
navigation in the Indian Ocean.” As this has helped Asian states and people to practice freedom of
commerce and trade.

 Judge Weeramantry sought to reinforce the universality of international humanitarian laws. He

observed: “it greatly strengthens the concept of humanitarian laws of war to note that this is not a recent
invention...” “it is deeply rooted in many cultures – Hindu, Buddhist, Chinese, Christian, Islamic, and
traditional African...”

 Many examples of the Asian contribution to international law sets the true goal of the law and shows its
universality to the evolution and growth of its principles.

 The African states have contributed to the development of modern international law in various ways: the
concept of the EEZ in the law of the sea; the principle of uti possidetis; the concept of ‘peoples’ rights’,
as distinguished from that of ‘human rights’; the expansion of human rights to embrace the so-called
third generation rights, such as the right to development (1987); the Nyerere Doctrine of state
succession; and, certain principles in the area of international fluvial law, concerning the common
management and utilisation of shared watercourses.
 Moreover, since the establishment of the ICC, the relationship between the African states and the Court
evolved very considerably. The contribution of Africa in the field of international criminal law, is in
defining the crime of aggression, and its contributions made in the course of the activities of the
international law commission.

 The most notable and recent efforts by the African states are the crime of unconstitutional change of
government, the fight against apartheid, colonialism, discrimination, self-determination, improvement of
the refugee law, and the drafting of several instruments promoting mediation and pacific settlement of
disputes.

 Further, this period also marked formation of unequal treaties. Unequal treaties must have any of the
following two elements:

 1. unequal obligations

 2. threat or use of force to sign the treaty

 3. impairment of sovereignty

 Treaty of Nanking of 1842 between Britain and China is one example of an unequal treaty. China ceded
Hong Kong, opened 5 Chinese ports, accepted prescribed tariff structure and paid $21 million as
reparation for opium wars.

 In this period interest driven doctrines were also established. For example: doctrine of recognition
(constitutive versus declaratory theory); Mare Liberium vs Mare clausum (open Seas versus closed
Seas), the idea of extraterritorial jurisdiction, doctrine of state responsibility.

 20th Century:

 The colonialism as humanitarianism continued even in the 20th century under the garb of mandate
system of league of Nations. Article 22 of the Covenant of League of Nations mentions that “peoples not
yet able to stand by themselves under the strenuous conditions of the modern world… the tutelage of
such people should be interested to advanced nations… this tutelage be exercised by them as
mandatories on behalf of the league.”

 Because Law was dependent upon the will of the sovereign in national systems, it followed that
international law depended upon the will of sovereign states. Confusion crept in with regard to who is
supreme- legislator within a state or outside of it and thus positivism had to accept the metaphysical
identity of the state.

 The abstract nature of the state did not appear in all positivist theories and was a late development. The
philosophy revolving around will of the state led to disturbing results in the 20th century and provoked a
re-awakening of the law of nature, which was dormant throughout the 19th century.

 The 1st world war marked the close of a dynamic century. European empires ruled the world and
European ideologies reigned supreme but in 1914-18 the great war undermined the foundations of
European civilization.
Self-confidence faded. Self-questioning was the order of the day.

 The most important legacy of 1919 peace treaty was the creation of league of Nations. The old anarchic
system had failed and the need for new institutions to secure peace was felt.

 The League was crippled from the start by the absence of US and the Soviet Union for most of its life
and that remained basically European organization.

 Japan invaded China in 1931 and two years later it withdrew from the League.

 Italy attacked Ethiopia and Germany embarked unhindered internal and external aggression. The Soviet
Union was expelled from the organization in 1939 following its invasion of Finland.

 Though it did not achieve much but it laid the groundwork and helped to consolidate the United Nations
later.
The international labour organization was established soon after the end of first world war and many
other international institutions came into being.
The League also brought in the system of mandates.
  After the trauma of the Second World War, the league was succeeded in 1946 by the UNO, which tried
to remedy the defects of its predecessor. The UN had its headquarters at New York, reflecting the
realities of the shift of power away from Europe and determined to become a truly universal institution.
The rise of the US and the Soviet Union mirrored the decline of Europe, while the process of
decolonialization also had a considerable impact on international law.

 In 20th century, Europe had too many national laws, merchant capital was difficult to operate and to
further expand in such a system. Therefore, there was a need to harmonize and unify laws, otherwise
transaction costs were involved in understanding laws of different European states. Therefore, EU was
created as a larger space.

 Simultaneously, there was a creation of Global Economic space through WTO- creation of global space
led to uniform laws (under TRIPs). But this does not take away the concepts of territory and sovereignty.

 International law has existed throughout all history.

 It began as a local phenomenon, then went regional, and is global today.

 We have also noticed that international law has reshaped itself throughout history, and in the future, it
will take on a different character. Today’s international law is no longer practiced by only states and
international organisations; the individual is considered as another actor in the practice of international
law.

 Modern history and technology have given international law a different image; we witness it today
specifically in communication, in the widespread of international organisations, and in the interaction of
relations among states.

 Globalisation is playing a major role today in the development of international law. Networks and the
information flowing on these networks on the internet are uniting states across the globe.

 International Law faced new challenges during this period because of:

 The collapse of the Soviet empire and the Soviet union,

 the rise of India and China as major powers

 the phenomena of globalization

Modern International Law

 Every two hundred years, it seems the jurisprudence of CIL changes. Beginning in the 17th century,
natural law was said to be the source of CIL. Early 19th century, positivism, was in the ascendancy.

 Today, we live in an age of codification, and international law has expanded to pre-modern, and non-
Western societies. These facts have brought forth the type of globalism/universalism in the historical
study of international law.

 Modern international law seeks to control states by inhibiting or directing their conduct. Both in their
relations with other states (e.g., the law prohibiting the use of armed force to settle disputes), and in
relation to individuals, both individuals of other states (e.g., issues concerning the exercise of criminal
jurisdiction), and its own nationals (e.g., the law of human rights).

 It is also important to realise that the practice of modern international law is effectuated by diplomacy,
politics, and the conduct of foreign relations. It has already been suggested that the great majority of the
rules of international law are followed consistently. In short, international conventions and treaties are
amongst the most essential formal sources of modern international law.

 The Global Era in the history of international law begins at the end of 1945 by the formation of the
United Nations, that era brought about profound changes in the context

 In the 21st century, developed and developing states have hostilities in their relations and seeking
openly to have norms of modern international law that were more effective and open to the new era of
this century.

 The modern international law has raised several issues; one issue is whether modern international law
norms are effective?
  History has led us to an increasingly universal international norms

 Today, in the new millennium, globalisation draws nations and peoples closer, despite recent economic
setbacks. The WTO is a powerful international force that influences decisions of the leading economic
powers, including the USA. ILO demand basic standards and benefits for workers and workplaces.
These trends undermine sovereignty and reflect a tightly structured international environment that
constrains even the strongest states to behave in ways that promote international order.

 International law in the 21st century is playing an important role in addressing issues likely to persist for
decades to come. The most important of these includes a globalised economy; urbanisation; intrastate
conflict; clash of cultures; unequal distribution of wealth; environmental degradation; transnational crime;
collective security; multilateralism; and humanitarian intervention.

 Global problems require global solutions; sovereign states in the modern world cannot solve them,
although they can address symptoms within their borders.

 Challenges to modern international law come from many directions: the role of state actors,
unilateralism of the super powers, environmental degradation, the persistence of massive conflicts, and
underdevelopment in the Third World, etc.

 The History of IL reflects Eurocentrism in IL.

 Rules/ doctrines of international law reflect European interests shaped by colonial international law.

 Need to deconstruct and then reconstruct

 Parallels between past and present: According to J.S. Mill, intervening in societies which are uncivilized
is not violation of international law- this is similar present-day concept of R2P.

 IL seen as European Christian civilization is now challenged by Global South.

 Even new phraseology has been used now to advance the same project. R2P used to legitimize
colonialism.

 PAIL: Positivist Approach to International Law- now dominating- started in 19th century

 In global law, contributions of all nations to be are taken into account

RE-IMAGINING INTERNATIONAL LAW AS LAW OF GLOBAL SOCIETIES

Classical approaches to international law

• Natural law

• Grotian Approach or Eclectic

• Legal Positivism

Natural law

• Many early international legal theorists were concerned with natural law. 16th century natural law
writer, Francisco de Vitoria (1492- 1546), a professor of theology examined the questions of the just war
and tried to justify colonial power in Americas.

• Vitoria replaced Divine law with Secular Natural Law. He did not distinguish between rights of
indigenous people and Spanish but culled out rules of jus gentium- Concept of Just war to protect right
to travel and right to commerce. Vitoria rejected divine law (by Pope) and said that local people/
indigenous people are similar to European people as they had their own system of dispute settlement;
their own culture. Indigenous people possess reason.

Natural law as a source if int law

• Natural law might be relevant to identify and define jus cogens norms. Jus cogens is important as a
potential limitation on positive law. Mary Ellen suggests that international courts can serve as the proper
forum for deciding what constitutes a jus cogen norm. But the ability of international courts to opine
about substantive jus cogens norm is subject to jurisdictional limitations. International courts are rarely
 vested with authority to adjudicate questions of jus cogens obligations, particularly of the non-positive
law variety. The one great exception is an Advisory Opinion by the International Court of Justice. But
even then—as with the advisory opinion on the Legality of Nuclear Weapons—the ICJ relies almost
exclusively on positive law to resolve the questions presented.

• 2. Natural law might be relevant to identify and define crimes that justify national court assertion of
universal jurisdiction. In this context, national courts can adjudicate questions of what sort of crimes are
so heinous that any national court can assert jurisdiction over the person. It would seem that recourse to
sources beyond positive law would be available to address this question. The Eichmann case is the
archetype. But, of course, universal jurisdiction is extraordinarily controversial because it vests authority
in national court judges to make decisions on matters of supreme international import.

• 3. Development of positive law through natural law underpinnings- natural law might be relevant to
support arguments for the establishment of positive international law. One can think of numerous
international human rights treaties that were enacted based on an appeal to moral authority rather than
state interest. If one canvasses the history of international human rights law, many of the arguments will
be found resting on notions of natural law. The typical refrain is “Civilized people simply do not engage
in this sort of behavior. Consequently, we should enact a treaty that will secure near universal
adherence to this norm as a reflection of this commitment.” In this sense, natural law is instantiated in
positive law. But once it becomes positive law, we tend to ignore the natural law underpinnings that
support and justify the positive obligation.

Hugo Grotius Approach

• Hugo Grotius (1583- 1645), a Dutch jurist played a key role in the development of modern international
law. In his De jure Belli ac Pacis Libri Tres ("Books on the Law of War and Peace") of 1625, he drew
from the Bible and from the St. Augustine's just war theory (St Augustine was a 4th century Christian
who believed that the only just reason to go to war was the desire for peace. he accepted that there
would always be wars. He thought that war was always a sin, and if there had to be a war, it should be
waged with sadness).

• Grotius argued that nations as well as persons ought to be governed by universal principle based
on morality and justice. He supported the idea of jus gentium and argued that relations among polities
(states) ought to be governed by the law of peoples which is the jus gentium, established by the consent
of the community of nations on the basis of the principle of pacta sunt servanda, that is, on the basis of
the observance of commitments.

• Grotius also supported the idea of freedom of seas (which was to support the colonial project)

• Christian von Wolff, contended that the international community should be a world superstate having
authority over the component member states. Emmerich de Vattel rejected this view and argued for the
equality of states as articulated by 18th century natural law.

• During the 17th century, the basic tenets of the Grotian or eclectic school, especially the doctrines of
legal equality, territorial sovereignty and independence of states, became the fundamental principles of
the European political and legal system and were enshrined in the 1648 Peace of Westphalia.

• Grotius was one of the first to define expressly the idea of one society of states, governed not by force
or warfare but by actual laws and mutual agreement to enforce those laws.

• As Hedley Bull declared in 1990: "The idea of international society which Grotius propounded was given
concrete expression in the Peace of Westphalia, and Grotius may be considered the intellectual father
of this first general peace settlement of modern times.“

• Grotius' concept of natural law had a strong impact on the philosophical and theological debates and
political developments of the 17th and 18th centuries. Among those he influenced were Samuel
Pufendorf and John Locke. 

• In Grotius' understanding, nature was not an entity in itself, but God's creation. Therefore, his concept of
natural law had a theological foundation. Both Biblical revelation and natural law originated in God and
could therefore not contradict each other.

LEGAL POSITIVISM

• Legal positivism is a school of thought of analytical jurisprudence developed during the 18th and 19th
centuries, by legal philosophers such as Jeremy Bentham and John Austin. While Bentham and Austin
 developed legal positivist theory, the most prominent legal positivist writer in English has been H. L. A.
Hart, who, in 1958, found common usages of "positivism" as applied to law that includes the following
contentions:

• laws are commands of human beings;

• there isn’t any necessary relation between law and morality, that is, between law as it is and as
it ought to be;

• analysis of legal concepts is worthwhile and is to be distinguished from history or sociology of

law, as well as from criticism or appraisal of law,

• a legal system is a closed, logical system in which correct decisions can be deduced from pre-
determined legal rules without reference to social considerations;

• moral judgments, cannot be established or defended by rational argument, evidence, or proof

• Historically, legal positivism is in opposition to natural law theories of jurisprudence, with particular
disagreement surrounding the natural lawyer's claim that there is a necessary connection between law
and morality.

• The early positivist school emphasized the importance of custom and treaties as sources of international
law. Early positivist scholar Alberico Gentili used historical examples to suggest that positive law was
determined by general consent. Another positivist scholar, Richard Zouche, published the first manual of
international law in 1650.

• Legal positivism became the dominant legal theory of 18th century and found its way into international
legal philosophy. At the time, it was asserted that the basis of international law were customs and
treaties commonly consented to by various states. John Jacob Moser emphasized the importance of
state practice in international law.

• Legal positivism identifies law with legal propositions, i.e. the wording of positive rules- which is a
product of legislative or other law-creating process. At the core of legal positivism lies the concept of
validity. Legal validity, based either upon another legal proposition or upon acceptance by the legal
community, is decisive as to whether a legal proposition forms part of the legal system or not. The
question as to the validity of a legal proposition can only be answered with yes or no. From the
viewpoint of the Pure Theory of Law only texts which can be gathered from a legal constitution, or, at
the extreme, from a single basic norm, are to be considered as legal propositions. They must have been
generated by means of a law-creating process provided for in the constitution or have been incorporated
in the legal order in some other constitutional manner. Thus, a legal rule is characterized by its
constitutional validity.

• During the 19th century, positivist legal theory became even more dominant due to nationalism and
the Hegelian philosophy. International Commercial law became a branch of domestic law & private
international law separated from public international law.

• Positivism narrowed the range of international practice that might qualify as law,
favoring rationality over morality and ethics.

• Modern legal positivists consider international law as a unified system of rules that emanates from the
states' will. International law, as it is, is an "objective" reality that must be distinguished from law "as it
should be."

• Classic positivism demands rigorous tests for legal validity. Extra-legal arguments, i.e., arguments that
have no textual, systemic or historical basis on the law, are deemed irrelevant to legal analysis. There is
only hard law, no soft law. 

• Criticisms of positivist international legal theory include its rigidity, its focus on state consent, without
allowing for interpretation, and the fact that it does not allow moral judgements regarding a State's
conduct as long as it follows international norms.

APPROACHES TO INTERNATIONAL LAW

• Realism

• Liberalism
 • Rationalism or game theory

REALISIM APPROACH ; Realism contends that in an anarchic international system, main objective of a
state for survival is to maximize their relative power in order to preserve their territory and existence. Since
international cooperation is possible only in as much as it responds to the states' self-interest in maximizing
their power and prospects for survival, states do not pursue cooperation on the basis of normative
commitments (i.e. treaties and customs).

• According to Realist legal scholars, states adopt only international legal norms that either enhance their
power, or formalize the subordination of weaker states. International Law may thus address only
peripheral matters that do not impact the states´ power or autonomy. Consequently, for realists,
international law is a “tenuous net of breakable obligations”.

Within the Realist approach, some scholars have proposed an "enforcement theory" according to which
international legal norms are effective insofar as they "publicize clear rules, enhance monitoring of compliance,
and institutionalize collective procedures for punishing violations, thereby enhancing the deterrent and coercive
effects of a stable balance of power." Thus, the role of reciprocity and sanctions is underlined

• Realists can be divided into three classes based on their view of the essential causes of inter-state
conflict. 

 Classical realists believe it follows from human nature; 

 Neo-realists attribute it to the dynamics of the anarchic state system; 

 Neo-classical realists believe it results from both, in combination with domestic politics.

• Realism revolves around four central propositions:

 states are the central actors in international politics;

 the international system is anarchic, as there is no supranational authority to enforce rules;

 states act in their rational self-interest within the international system; and

 states desire power to ensure self-preservation (survival)

• The state emphasises an interest in accumulating power to ensure security in an anarchic world. Power
is a concept primarily thought of in terms of material resources necessary to induce harm or coerce
other states (to fight and win wars). The use of power places an emphasis on coercive tactics being
acceptable to either accomplish something in the national interest or avoid something inimical to the
national interest. The state is the most important actor under realism. It is unitary and autonomous
because it speaks and acts with one voice. The power of the state is understood in terms of its military
capabilities.

• States employ the rational model of decision making by obtaining and acting upon complete and
accurate information. The state is sovereign and guided by a national interest defined in terms of power.
Since the only constraint of the international system is anarchy, there is no international authority and
states are left to their own devices to ensure their own security.

• Realists believe that sovereign states are the principal actors in the international system. International
institutions, non-governmental organizations, multinational corporations, individuals and other sub-state
or trans-state actors are viewed as having little independent influence. States are inherently aggressive
(offensive realism) and obsessed with security (defensive realism).

• Realists believe that there are no universal principles with which all states may guide their actions.
Instead, a state must always be aware of the actions of the states around it and must use a pragmatic
approach to resolve problems as they arise.

• Liberalism

• Scholars argue that the states' stance towards international law is determined by their domestic politics/
policies and, in particular, by the aggregation of the preferences of key domestic individuals and groups
toward the rule of law. Thus, democratic states, having a representative government, are more likely
than non-democratic states to accept the legal regulation of both domestic and international politics, and
more likely to accept and observe international law. Furthermore, democratic societies are linked by
a complex net of interstate, transnational and trans-governmental relations so that both their foreign
 policy bureaucracies and their civil societies are interested in promoting and strengthening transnational
cooperation through the creation and observance of international legal norms. Hence, the adoption of
and the compliance with international legal norms among democratic states should be easier and more
peaceful than the observance of international law among non-democratic states.

• Agreements concluded among liberal States are more likely to be concluded in an atmosphere of
mutual trust, a precondition that will facilitate any kind of enforcement. These are agreements reached
with the participation of a network of individuals and groups in the participating States, and these States
are committed to the rule of law enforced by national judiciaries.

• Liberalism is a school of thought which can be thought to revolve around three interrelated principles:

• Rejection of power politics as the only possible outcome of international relations; it questions
security/warfare principles of realism

• It emphasizes mutual benefits and international cooperation

• It implements international organizations and non-governmental actors for shaping state preferences

and policy choices

• This school of thought emphasizes three factors that encourage more cooperation and less conflict
among states:

• International institutions, such as the United Nations, who provide a forum to resolve disputes in a non-
violent way

• International trade because when countries' economies are interconnected through trade they are less
likely to go to war with each other

• Spread of democracy as well-established democracies do not go to war with one another, so if there are
more democracies, interstate war will be less frequent

• Liberals believe that international institutions play a key role in cooperation among states. International
institutions and with increasing interdependence (including economic and cultural exchanges) states
have the opportunity to reduce conflict. 

• Liberals also argue that international diplomacy can be a very effective way to get states to interact with
each other honestly and support non-violent solutions to problems. With the proper institutions and
diplomacy, Liberals believe that states can work together to maximize prosperity and minimize conflict.

• Smith, John Locke and I. Kant

• John Locke, in his second treatise, comments on society and outlines the importance of natural rights
and laws. Locke believes that people are born as blank slates without any preordained ideas or notions.
This state is known as the State of Nature because it shows people in their most barbaric form. As
people grow, their experiences begin to shape their thoughts and actions. They are naturally in the State
of Nature until they choose not to be, until something changes their barbaric nature. Locke says that,
civil government can remedy this anarchy. When it comes to the Law of Nature, people are more likely
to act rationally when there is a government in place because there are laws and consequences to
abide by. Locke argues that civil government can help people gain the basic human rights of health,
liberty and possession. Governments that grant these rights and enforce laws, benefit the world. Many
of these ideas have influenced leaders such as the Founding Fathers during the American Revolution
and French revolutionaries during the French Revolution.

Rational CHOICE THEORY or game theory

• Game theory is the study of mathematical models of strategic interaction among rational decision-
makers.

• This approach to law applies theories of economics to identify the legal implications of behavior inside
and outside of markets. Economics is the study of rational choice under limited conditions.

• Rational choice is the assumption that individual actors seek to maximize their preferences. It relies on
assumptions that perfect competition exists, and that individuals will behave to maximize their
preferences. The empirical presence of these conditions is often difficult to determine.

• Game theory is the science of logical decision making in humans, animals, and computers.
 • States can only act through people. So, if we want to understand state behavior in international
relations, we need to understand human behavior. Rational choice theory attempts to do this.

• According to Rational Choice Theory: States and most other international 'actors,' like intergovernmental
organizations, nongovernmental organizations and multinational corporations, are intangible concepts
that can only act through human beings. Rational choice theory is one attempt to explain how and why
actors behave the way they do in decision making.

• Rational choice theory is a theory in social science that argues human behavior, and social life can be
explained in terms of rational choices of individuals. Social interaction, including political interaction, is
considered to be a type of exchange where individuals will interact with each other if they expect gains
arising from the interaction. For example, you may decide to enter into a friendship if you believe you
will get more out of the friendship than the burden the friendship will impose upon you.

• Rational choice theory argues that people make choices based upon a set of individual preferences in a
rational manner where they seek to maximize gain while minimizing loss.

• Preferences can take different forms. A strict preference means that you prefer one choice over its
alternative.

• In order to apply rational choice theory, we must make a few assumptions:

• An individual acts rationally in pursuit of her own self-interest and not in the interests of others.
Individuals seek to maximize their gains and minimize their losses.

• An individual has sufficient information upon which to establish her preferences and perform
her rational analysis.

• Preferences are transitive in nature.

• Realist scholars have implicitly, or even explicitly, used rational choice assumptions in order to explain
and predict states’ behavior: states pursue power rationally. Classical realists (as well as neo-realists)
assume competition for security in the anarchical system of international relations; states play zero-sum
games. 

• Rational Choice theory has underlying assumptions that individuals engage in purposive, means-ends
calculation in order to attain their goals, i.e. they select actions so as to maximize their utility. Rational
choice does not tell us what our goals should be; it focusses on the means and not the ends. The
rational choice theory has both normative and positive dimension. Rationality is a normative concept in
so far as it points to what we should do in order to attain a given end or objective. Its positive application
comes when it is used to describe, explain and predict human behavior.

• The rational choice theory is versatile when applied to legal institutions- including customary law,
treaties and international organizations- as both endogenous and exogenous. It is therefore applied to
“new institutionalism” in social sciences by examining both actor preferences and choices in the context
of institutional constraints (institutions as exogenous) and how institutions are created and designed as
a function of actor preferences and other exogenous constraints (institutions as endogenous).

Reimagining international law

Baxter’s ‘International Law in Her Infinite Variety’, …

• Baxter reflects upon different types of legal norms in IL with degrees of Cogency; Persuasiveness and
Consensus.

• These norms are incorporated in agreements. And are divided into soft and hard laws.

• Majority of norms laid down in international agreements are liable to be enforced through the well-
known mechanisms, i.e. international tribunals and national courts, which ensure respect for these
obligations. But there are norms of various degrees of persuasiveness, and consensus which are
incorporated in agreements between States but do not create enforceable rights and duties. They may
be described as "soft" law, as distinguished from the "hard" law consisting of treaty rules which States
expect will be carried out and complied with. If one State undertakes to pay another a stipulated sum of
money in settlement of certain claims or a State by treaty accepts limitations on its power to tax aliens, it
is expected that those duties will be carried out.
The international instruments including declarations of policy, joint communiques or resolutions of the General
Assembly, having commitments of varying character seems to refer to norms contained in these international
agreements, because one instrument may contain both provisions creating legal obligations and norms of vague
and general character that were not intended to be enforced

• Concept of "soft" or "weak" law includes in its category: (Binding and non-binding norms)

1. Political Treaties- whereby States enter into alliances, or agree to co-ordinate their military action, or
declare the neutrality of an area, or lay out their agreed policies for the future (such as the Atlantic
Charter or the Yalta Agreement) have been characterised as " political treaties." They are not legally
enforceable and are fragile obligations. They are executive agreements. There is no such terminology
employed in the Vienna Convention on the Law of Treaties.

2. Negotiations- these cannot be enforced if parties donot reach agreement, called pacta de contrahendo

3. Non self-executing- where more treaties required to give effect to principle treaty

4. Hortatory- simply seeking cooperation by states

5. If a State refuses to come to the aid of another under the terms of an alliance, nothing can force it to. It
was never expected that the treaty would be "enforced”. So, if a State changes its policy and leaves the
alliance, only political or economic arguments can bring about a reversal of the State's position.

6. The Vienna Convention makes no reference to "political treaties" and it would have been surprising if it
had, because it would have added to the complexity of the law and would have supplied a basis for
escape from treaty obligations which might have been susceptible of abuse. But these "political treaties"
nevertheless are kept alive by perceptions of mutual advantage and by political and economic forces.
They are as legally fragile as are the joint communiques and joint declarations in which heads of States
or foreign ministers describe the agreement they have achieved on policies to be pursued by the States
concerned. They remain alive only so long as the States concerned see it to be in their mutual interest.

7. Soft law creates no legal obligations but can put pressure and influence conduct of states. For example-
norm setting in HRs, Declarations at end of conferences, voluntary guidelines, resolutions of Int. Orgs.

8. A lawyer being a social engineer can help by understanding Infinite Variety of ways in which legal norms
may reflect different intensities of agreement.

Concept of International Law by Philip Allot:

• Philip Allot has conceived of an idealistic approach that is a need to recall and recover our extraordinary
power constantly to reconceive the ideal in order to make it actual.

• Allot starts with a discussion on social function of international law which he considers is the same as
that of other forms of law.

• According to him, law conditions social action to serve the common interest.

• Law is the product of social processes which determine society’s common intent- and this organize the
making and application of law.

• The international legal system integrates all subordinate legal systems; regulates international public
realm and interaction of sub-ordinate public realms.

• National legal systems are part of international legal system.

• The state of international law at any time reflects the degree of development of international society.

POLICY ORIENTED PERSPECTIVES

• New Haven School

• Critical Legal Studies

• Feminist legal theory

• LGBT legal theory

• Third World Approach to IL

NEW HAVEL SCHOOL

• A nationalist critique of international law: The New Haven School was in part a reaction to and rebuke of
Cold War realism, which argued that naked power and "national interest," not legal rules, are the sole
means to "suppress the chaotic and dangerous aspirations of governments in the international field."
Similarly, many believe that globalization has thrust the "sovereign" into a zero-sum power grab with
international regimes." While the game theory and the economic models may be more "sophisticated"
than those employed by the Cold War realists, these scholars, like their predecessors, similarly fear that
potent international laws and institutions detract from "sovereignty," which is often shorthand for
executive power and autonomy. For these scholars, the choice is clear, i.e.- a strong, secure state or
robust international law and institutions, but not both. These scholars have created a theoretical
framework that re-imagines international law, re-conceptualizing it as a mere tool of a strong state.

• Looking at International law differently

• The jurisprudence of the New Haven school, otherwise known as the New Haven approach, is a
contemporary theoretical and methodological approach to analyzing public international law through a
policy-oriented perspective. This approach was founded by the Yale Law School faculty in the 1960s
and proposes international law as the jurisprudence of social choices, which is applied to analyze
various decision-making processes. The goal of the New Haven approach is to understand international
law as a social process that aims at crafting minimum world public order based on the shared values of
the international community. The New Haven approach was historically inspired by the tradition of legal
realism and sociological jurisprudence. Its main features involve a focus on values, an appreciation for
cultural diversity, and broad applicability to various fields and issues. While the New Haven approach
suffers from several criticisms, it manages to retain enduring attractiveness due to its flexibility and
efficacy in addressing policy issues.

• The normative social goals or values of the New Haven approach include maximizing shared community
values, such as wealth, enlightenment, skill, well-being, affection, respect and rectitude. 

• Legal pluralism is also considered a New Haven School. In an era of globalization, the international
lawmaking universe is disaggregating into multiple-sometimes overlapping lawmaking communities, and
neither the President, political elites, nor any of the other protagonists that star in the neo-conservative
account are at the center of many of these communities. This is a moment of possibility and an
opportunity "to invite new worlds”.

Critical legal studies (cls)

• CLS emerged as a legal theory in America during the 1970s.

• Critical Legal Studies adherents claim that laws are used to maintain the status quo of society's power
structures; it is also held that the law is a codified form of society's biases against marginalized groups.

• Despite wide variation in the opinions of critical legal scholars around the world there is general
consensus regarding the key goals of Critical Legal Studies:

 to demonstrate the ambiguity and possible preferential outcomes of supposedly impartial and

rigid legal doctrines.

 to publicize historical, social, economic and psychological results of legal decisions

 to interpret legal analysis and legal culture in order to impose transparency on legal processes

so that they earn the general support of socially responsible citizens

• The method proposes that the nature of international law is limited because it is determined by
language, which is biased and still stuck in the conventional structures of politics and power. 

• Critical Legal scholars argue that those structures of power can be found within the binaries that exist in
legal language (man vs. woman, majority vs. minority, etc.). Recognizing the political aspect of
international law, these scholars also argue that universality is impossible. 

• It was successful, however, in pushing forward other approaches to international law (feminist, cultural
relativist, etc.) because of its deep analysis of language, and all the imbalance that it reveals.

CRITICAL INTERNATIONAL LEGAL THEORY

• Critical International Legal Theory (CILT) does not denote any single movement, school or approach.
Those identified with CILT are quite likely to reject such a label, or to opt for some alternative (“New
Approaches to International Law” (NAIL), for instance, flourished during the 1990s). As a consequence,
it is far from clear that CILT exists in any consistently recognizable form. To the extent that it does, it is
better grasped in the doing than in the description.

• Broadly, CILT theorizing has been concerned with addressing the persistence of bias, the
ambivalent operations of power in global order, and the role of international law and lawyers
within these.

• According to Fleur Johns, there are three overlapping phases of CILT scholarship:

• a pre-1989 reckoning (dating from the 1980s) with the non-materialization of the promises of
socialist revolution and the disappointments of cosmopolitan, decolonization, and development
projects;

• a 1989 to 1999 reckoning with the apparent triumph of liberalism/neo-liberalism and the
Washington Consensus; and

• a current phase, dating from approximately the turn of the millennium, of reckoning with the
post-Washington Consensus, the renewed spread or entrenchment of authoritarian
nationalism, and the prevalence of casualization and economic inequality.

• CILT has drawn inspiration from, or otherwise reacted to, certain predecessors more or less in common.
The first is Critical Legal Studies (CLS) and the second is global critiques of liberalism.

1. Critical Legal Studies (CLS): The term CLS offers a shorthand for the diverse and often internally
conflicted body of work generated by a group of scholars in common law jurisdictions (primarily in the
US) who turned to critical theory and structuralism from the 1970s onwards in order to revisit and renew
legal thought. In the aftermath of American Legal Realism, they sought to extract from that tradition
something other than a commitment to socially and economically-attuned empiricism in legal thought
and practice (breaking with the law and economics and the law and society movements).

Mainstream legal scholars of the day were, “like a priesthood that had lost their faith and kept their jobs.”
The failures of legal formalism and objectivism to deliver any “universal legal language of democracy and the
market” had been elucidated at length and acknowledged.

Against legal formalism, CLS scholarship broadly contended that legal doctrine and legal concepts were
too internally incoherent to yield general rules capable of consistent application. As a result, the distinction
between rule-making and rule-application could not hold.

The attack on objectivism was advanced by CLS scholars doctrinally and historically.

• CILT has drawn inspiration from, or otherwise reacted to, certain predecessors more or less in common.
The first is Critical Legal Studies (CLS) and the second is global critiques of liberalism.

1. Critical Legal Studies (CLS): The term CLS offers a shorthand for the diverse and often internally
conflicted body of work generated by a group of scholars in common law jurisdictions (primarily in the
US) who turned to critical theory and structuralism from the 1970s onwards in order to revisit and renew
legal thought. In the aftermath of American Legal Realism, they sought to extract from that tradition
something other than a commitment to socially and economically-attuned empiricism in legal thought
and practice (breaking with the law and economics and the law and society movements).

Mainstream legal scholars of the day were, “like a priesthood that had lost their faith and kept their jobs.”
The failures of legal formalism and objectivism to deliver any “universal legal language of democracy and the
market” had been elucidated at length and acknowledged.

Against legal formalism, CLS scholarship broadly contended that legal doctrine and legal concepts were
too internally incoherent to yield general rules capable of consistent application. As a result, the distinction
between rule-making and rule-application could not hold.

The attack on objectivism was advanced by CLS scholars doctrinally and historically.

2) Global critiques of liberalism:

Apart from CLS, earlier bodies of work taking aim at liberalism (either with explicit reference to international
law, or otherwise with a “global”, or root-and-branch aspiration) have comprised a rich intellectual and
 political seam for CILT scholarship to which CILT scholarship has repeatedly returned. These include the
solidarist critiques of liberalism and formalism advanced in late 19th century and early 20th century France;
the “anti-” motif developed in 19th and 20th century German thought; feminists scholars’ and activists’
engagements with international organizations over the same period and in subsequent decades; and various
strains of anti-colonial and post-colonial writing.

The significance of feminist scholarship for CILT has been far more enduring and wide ranging than it ever
was for CLS.

By reading literatures of anti-colonialism, and engaging with postcolonial literary theory and historical work,
CILT scholars elaborated upon this sense of colonialism’s “centrality” to make powerful new interventions in,
and reorientations of, legal scholarship (TWAIL).

III Three phases of CILT Scholarship:

• 1st phase of CILT: 1980s. At this time, during the waning of the Cold War, scholars informed by critical
theory were still thinking about the non-materialization of socialist revolution. They were grappling, with
the disappointments of the cosmopolitan, decolonization, and liberal development projects—in short,
with the defeat of what David Trubek and Marc Galanter termed “liberal legalism”. Ronald Reagan and
Margaret Thatcher had redirected thinking and policy in economics and foreign affairs, such that the US
and the UK together comprised an engine of liberalizing, privatizing, militarizing and rationalizing
energies projected throughout the world.

• 2nd phase: Around the year 2000, CILT underwent a process of winnowing and reorientation. Annual
NAIL conferences had ended, and “NAIL” had been ceremonially abandoned, with the “movement”
having become bloated. The discipline was by then filled with people calling for new thinking and
renewal,” and scholarship in international law was “brimming over with new angles and methods for
renewing and preserving the field by escaping its past limitations.” It had become harder than ever to
distinguish the marginal from the mainstream. CILT scholarship turned more attention to anti-formal,
non-doctrinal forms of legitimation, and extended into subfields of international law.

• 3rd phase: The post-structuralist potential of history became an area of particular focus, alongside
continuing engagements with anthropology and sociology. Meanwhile, new centers of support for and
activity around, CILT emerged beyond the US: in Melbourne, Helsinki, Bogotá, London, Cairo and
Toronto. At many of these sites, CILT scholarship maintained a productive dialogue with TWAIL (the
subject of James Gathii’s chapter).

FEMINIST LEGAL THEORY

• Feminist legal theory critiques current legal vocabulary and practice by arguing that it is patriarchal,
presenting men as the norm and women as a deviation from the norm.

• Feminist theorists propose to change legal language to make it more inclusive of women, or to rethink
law completely, so it is possible to promote broader social goals of justice and equality.

• Feminist methods seek to expose the biases from which international law is written and particularly the
notion that women are more vulnerable than men and need special protection under the law. Feminist
theorist Hilary Charlesworth criticizes the dialogue of women as victims in need of protection from both
men and international law. Additionally, she argues that the irony of the dominant language is that while
it aims to especially protect women, the emphasis is on the protection of her honor and not on the
protection of her social, cultural and economic rights.

LGBT LEGAL THEORY

• LGBT International Law Theory is a critical school of thought that continues to develop as the
shortcomings of international law are realized, in regard to the integration of queer theory into
international law theory. While human rights conventions have recently begun to generalize in regard to
equality and its recipients, in the past, any discussions of sexual orientation and gender identity have
gone largely untouched.

• The movement of LGBT International Law Theory centers on the inclusion and awareness of LGBT
rights (and protection of persons), as well as the integration of queer theory within the realm of
international law. According to scholar Nancy Levit, the challenges for gay legal theory are twofold: to
move away from the frailties of both formal equality and anti-subordination theories, and to develop
ways of representing sexual minorities that will make them more acceptable, if not valuable, in a broader
cultural context, that is the critical body of LGBT International Law Theory
TWAIL- THIRD WORLD APPROACH TO INTERNATIONAL LAW

• Third World Approaches to International Law (TWAIL) is a critical school of international legal
scholarship and an intellectual and political movement. It is a "broad dialectic opposition to international
law", which perceives international law as facilitating the continuing exploitation of the Third
World through subordination to the West. TWAIL scholars seek to change what they identify as
international law's oppressive aspects, through the re-examination of the colonial foundations of
international law

• It is an approach that draws primarily from the history of the encounter between international law and
colonized peoples. TWAIL shares many concepts with post-colonial studies, feminist theory, Critical
legal studies, Marxist theory and critical race theory.

• TWAIL scholarship prioritizes in its study the power dynamic between the First World and Third
World and the role of international law in legitimizing the subjugation and oppression of Third World
peoples. TWAIL scholars try to avoid presenting the "Third World" as a unified, coherent place but rather
use the term to indicate peoples who have the shared experience of underdevelopment and
marginalization.

• Contemporary TWAIL scholarship has it origins in works of jurists such as R.P. Anand,  Taslim O. Elias,
B. S. Chimni, Georges Abi-Saab. Over the years, several Western scholars have been sympathetic to
the Third World's position and made important contributions to this body of scholarship, and these
include, scholars such as C.H. Alexandrowicz, Richard Falk, PJ.I.M. de Waart. David
Kennedy and Martti Koskenniemi have also contributed support in their own work.

• TWAIL’s main objectives include:

• Developing an understanding as to how international law perpetuates the subordination of non-

Europeans to Europeans through international legal norms.

• Creating opportunities for Third World participation in international law.

• Proposing an alternative mechanism of international law that coexists with other critiques of the
neoliberal approach to international law.

• Eradicating underdevelopment of Third World through scholarship, policy & politics.

Understanding & engaging Third World scholarship in analysis of international law

• TWAIL-ers underline that international law was created during the colonial era and that it was used to
legitimize the global processes of marginalization and domination of the colonized people by Western
powers. 

• They refuse to accept the universal character of the international legal system, as it emerged solely from
the European and Christian tradition.  

• In contrast, Third World countries were assimilated by force into the international legal system, which
does not reflect their diverse heritage.

• TWAIL-ers reject the idea that after the end of the World War II international law has moved on from its
imperialistic origins. Although the system appears to be legitimized by recognizing human rights and the
right to self-determination, TWAIL-ers believe that international law is still a tool of oppression and
that decolonization processes were merely illusory.

• Amongst the modern forms of domination, TWAIL-ers include:

• the limitation of the Third World states’ sovereignty through transferring their autonomous

powers to international institutions controlled by the First World,

• the arbitrary application of the humanitarian intervention and

• the internationalization of proprietary rights .

• TWAIL-ers also emphasize the inability of Third World leaders to secure the interests of their people and
their failed opposition to the First World hegemony, which further hinders the struggle for liberation of
Third World peoples . However, TWAIL highlights that some concepts in international law
simultaneously serve as both an instrument of oppression and emancipation – like the international
human rights regime, which not only justifies the internationalization of property rights but also the
 protection of peoples’ freedoms . Hence TWAIL-ers recognize that some elements of the system need
to be preserved.

Re-imagining Sources of International Law

Introduction to Sources

 Article 38 of the Statute of the ICJ has been taken as a classification of international legal sources and
as such, has been the starting point for most discussion in this area.

 Article 38 (1) states:

The Court, whose function it is to decide in accordance with international law such disputes as are submitted
to it, shall apply:

a. international conventions, whether general or particular, establishing rules expressly recognized by the
contesting states;

b. international custom, as evidence of a general practice accepted as law;

c. the general principles of law recognized by civilized nations;

d. subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified
publicists of the various nations, as subsidiary means for the determination of rules of law

Treaties and its interpretation

Prof. Chimni in his book International Law and World Order discussed about the interpretation of
treaties by referring to the work of Mc Dougal.

Article 31 of the VCLT states that a treaty shall be interpreted in good faith in accordance with the
ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and
purpose.

This rule of interpretation was applicable for the ICJ. Mc Dougal is of the opinion that the Court has
more than once stressed that it is not the function of interpretation to revise treaties or to read into them
what they donot expressly or by implication, contain.

He further opined that ‘object and purpose’ do not refer to the actual subjectivities of the parties, and
therefore rejected as the goal of interpretation, but rather to the mere words about object and purpose
intrinsic to the text.

According to Mc Dougal, the realist function of rules is not mechanically to dictate specific decision but
to guide the attention of decision makers to significant variable factors in typical recurring context of
decision…. to avoid arbitrary and irrational decisions.

The Harvard Research in International law formulated the rule of interpretation as: A treaty is to be
interpreted in the light of the general purpose which it is intended to serve. The historical background of
the treaty, travaux preparatories (official record of negotiations), the circumstances of the parties at the
time the treaty was entered into, the change in these circumstances, the subsequent conduct of the
parties in applying the provisions of the treaty, and the conditions prevailing at the time interpretation is
being made, are to be considered in connection with the general purpose which the treaty is intended to
serve.

According to Hart, legal rules are treated as displaceable presumptions or working hypothesis to be
modified or rejected if the predictable consequences of their application in a shifting social context
proved unsatisfactory.

Mc Dougal was extremely critical in light of modern developments in communication analysis and
modern techniques of linguistic analysis- of the ordinary meaning principle of interpretation.

He talked of 3 kinds of interpretation

1. Primary interpretation: genuine shared expectations of parties to agreement.

 2. Supplementing interpretation: when expectations of parties are ambiguous or vague, therefore
argument is completed in accordance with goals of public order.

3. Policing and integrating interpretation: does not give effect to expectations because there is conflict
with goals of system of public order.

Therefore, the ILC principle of ordinary meaning is impossible of application

Meaning of ‘ordinary meaning’ of the word, and then its meaning in a sentence is the language game.

The words have different meanings in different language games or forms of life.

Philosophers debate whether there is a distinction between the ideas of a language game and forms of
life, the essential aim of both is the same, that is to link the meaning of words to a particular set of social
practices which constitute the matrix in which the use- theory of meaning assumes life.

It can be said that modern international law is a distinct language game that originated in 17th century.

When a word is used in the domain of international law, it possesses ordinary meaning within the
language game of modern international law and those who are participating in that form of life
understand each other. This understanding has family resemblance according to Martti Koskenniemi.

Interpretations by themselves do not determine meaning for then, everything could be made out to be in
accordance or conflict with the rule.

This is the New Haven approach which is an approach to international law drawn from legal pluralism.
As such, this new international law scholarship owes a debt not only to Myres McDougal, Harold
Lasswell, Michael Reisman and the other practitioners of the New Haven School, but to another Yale
Law School professor Robert Cover. Cover, like other legal pluralists, insisted that law does not reside
solely in the coercive commands of a sovereign power. Instead, Cover argued that law is constructed
through the contest among various norm generating communities.

Cover’s insights are crucial for understanding today’s global legal pluralism. For example, the Project on
International Courts and Tribunals has identified approximately 125 international institutions, all issuing
decisions that have some effect on state legal authorities, though those effects are sometimes deemed
binding, sometimes merely persuasive, and often fall somewhere between the two.

Meanwhile, scholars have sought to define and understand “transnational legal process,” the ways in
which nation-states come to internalize international or transnational norms, even when those norms are
not directly backed by coercive power. Others have studied non-traditional legal actors such as
nongovernmental organizations (NGOs) and their role in defining (and sometimes enforcing) legal
standards. And, many non-state communities seek to inculcate norms transnationally, subnationally, or
supranationally, whether through various forms of private ordering, industry standard-setting, political
lobbying, or other means.

Cover’s emphasis is on norm-generating communities—rather than nation-states—and his celebration of

“jurisdictional redundancy” provide a useful analytical framework for understanding the plural normative centers
that are the focus of much current international law scholarship. Moreover, a pluralist perspective on international
law provides a powerful critique to the latest incarnation of realism, now newly dressed up in the trappings of
rational choice theory

The New Haven School scholars turned their attention to an empirical analysis of how the process of
decision-making in the international realm actually occurs. Again and again, New Haven School writings
refer to law as a social process.

In an era of globalization, the international lawmaking universe is disaggregating into multiple-

sometimes overlapping lawmaking communities, and neither the President, political elites, nor any of the
other protagonists that star in the neo-conservative account are at the center of many of these
communities. This serves as an opportunity "to invite new worlds”.

The international lawmaking in an era of globalization is not merely the realm of the state's diplomatic
elites; it is also the domain of corporations, insurance companies, NGOs, inter-governmental
organizations, sub-national entities, cities, judges, bureaucrats, technocrats, the media, and individuals.
Of course, this well-worn observation is deeply rooted in the New Haven School's panoply of
"participants in the world power process."
Customary international law

Traditional custom is closely associated with descriptive accuracy (state practice) because norms are
constructed primarily from state practice- i.e. working from practice to theory. Reliance on state practice
provides continuity with past actions and reliable predictions of future actions. It results in practical and
achievable customs that can actually regulate state conduct.

By contrast, modern custom demonstrates a preference for substantive normativity rather than
descriptive accuracy. Modern custom derives norms primarily from abstract statements of opinion juris-
i.e. working from theory to practice. Whereas state practice is clearly descriptive, opinion juris is
inherently ambiguous in nature because statements can represent lex lata (what the law is, a descriptive
characteristic) or lex ferenda (what the law should be, a normative characteristic). The Court has held
that only statements of lex lata can contribute to the formation of custom. However, modern custom
seems to be based on normative statements of lex ferenda cloaked as lex lata, for three reasons.

First, attempts to distinguish lex lata and lex ferenda often rely on differentiating between codification
and progressive development of the law. Codification means formulating and systematizing rules that
already exist in the form of practice accepted as law (lex lata), while progressive development is an
overtly political act concerned with formulations of what the law should be (lex ferenda). However, even
though codification is meant to be scientific, not political, formulating a general rule from actual practice
necessarily entails some level of law creation. Codification involves legal judgments because it seeks to
form a coherent rule in the face of inconsistent practice, which requires some crystallization of lex
ferenda.

Second, it is difficult to distinguish between codification and progressive development by examining the
language of treaties and declarations and their travaux preparatoires. For example, treaties and
resolutions might form customs when expressed in obligatory language, such as "must," rather than
aspirational terms, such as "should." However, the Court has relied on resolutions couched in both
mandatory and non-mandatory language. Further, mandatory language is still ambiguous because it
can represent a moral treaty, or customary obligation. Thus, whether a declaration or treaty provides a
statement of what the customary law is or should be cannot be determined by reference to mandatory or
permissive words alone.

Finally, treaties and resolutions often use mandatory language to prescribe a model of conduct and
provide a catalyst for the development of modern custom. Treaties and declarations do not merely
photograph or declare the current state of practice on moral issues. Rather, they often reflect a
deliberate ambiguity between actual and desired practice, designed to develop the law and to stretch
the consensus on the text as far as possible.

Modern custom often represents progressive development of the law masked as codification by
phrasing lex ferenda as lex lata.

Thus, state practice is descriptive, while opinio juris can be descriptive or normative.

Traditional custom and modern custom are primarily justified by descriptive accuracy and normative
appeal, respectively, because of their emphasis on state practice and normative opinio juris.

Apology and Utopia:

Descriptive accuracy and normative appeal provide important bases for justifying international law.
According to Koskenniemi, international law mediates between the competing tendencies of apology
(description) and utopia (normativity). A law which would lack distance from State behaviour, will or
interest would amount to a non-normative apology, a mere sociological description. A law which would
base itself on principles which are unrelated to State behaviour, will or interest would seem utopian,
incapable of demonstrating its own content in any reliable way.

While the justifications for traditional and modern custom mainly align with descriptive accuracy and
normative appeal, neither approach is completely descriptive or normative because both recognize the
importance of state practice and opinio juris to varying degrees.

Traditional custom embodies the value of descriptive accuracy but one of the main criticisms of
traditional custom is that it lacks democratic legitimacy (a normative criticism). By contrast, modern
custom is normatively appealing but risks creating utopian rules, so it is criticized for producing norms
that are divorced from reality (a descriptive criticism).
The critiques of traditional and modern custom rest on this basis A critique of traditional custom:
Traditional custom lacks procedural normativity. The process of custom formation is inherently
uncertain, with no clear guide to the amount, duration, frequency, and continuity of state practice
required to form a custom. Mohammed Bedjaoui argues that the freedom of the high seas was
developed to meet the needs of wealthy states with large fleets rather than the interests of states whose
shores were approached. Its undemocratic nature allows traditional custom to become an apology for
exercise of power by strong Western nations. The resulting sense of injustice diminishes respect for
traditional custom, as well as its pull towards compliance.

A critique of modern custom: Modern custom demonstrates strengths and weaknesses in procedural
normativity. Reliance on statements accelerates the formation of custom, which allows it to regulate
global issues in a timely manner. Deriving customs primarily from treaties and declarations, rather than
state practice, is potentially more democratic because it involves practically all states. Most states can
participate in the negotiation and ratification of treaties and declarations of international fora, such as the
United Nations General Assembly. The notion of sovereign equality (one state, one vote) helps to level
the playing field between developed and developing countries. While formal equality cannot remedy all
inequalities in power, international fora provide less powerful states with a cost-efficient means of
expressing their views. However, allowing a majority of states to bind a minority does not sit well with
the notion of state sovereignty. Further, the precise criteria for forming modern custom have not been
clearly articulated in cases such as Nicaragua, where the Court still claimed to be applying the
traditional custom.

However, as resolutions and treaties do not automatically become customary law, the practice of
powerful states arguably determines which ones are so transformed. The greatest criticism of modern
custom is that it is descriptively inaccurate because it reflects ideal, rather than actual, standards of
conduct. The normative nature of modern custom leads to an enormous gap between asserted customs
and state practice. For example, customary international law prohibits torture, yet torture is endemic

CRITICAL APPROACH by Prof. Chimni

In recent years the International Law Association (ILA) and International Law Commission (ILC) have
undertaken the task of clarifying rules concerning the formation and identification of CIL. In the year
2000, the ILA adopted the Statement of Principles Applicable to the Formation of (General) Customary
International Law (with commentary) consisting of 33 principles. In 2012 the topic “Formation and
evidence of customary international law” was included in the work programme of the ILC. In 2016, the
ILC adopted a set of 16 draft conclusions on identification of customary international law. These are “a
set of practical and simple conclusions . . . aiming at assisting practitioners in the identification of rules
of customary international law”.

There is a degree of consensus among international law scholars about the two elements that must
come together for a rule of CIL to emerge: state practice and opinio juris sive necessitas, or the
objective and subjective elements respectively.

“To determine the existence and content of a rule of customary international law, it is necessary to
ascertain whether there is a general practice that is accepted as law

The ILA in its Final Report stressed that “the most important, component of customary international law
is State practice.” The report went on to state that “what seems clear is that, if there is a good deal of
State practice, the need also to demonstrate the presence of the subjective element is likely to be
dispensed with.” In this view, “the more the practice, the less the need for the subjective element.”
However, in the ILC, “[t]he two-element approach was universally welcomed.”

Therefore, Draft Conclusion 9(1) states: “The requirement . . . that the general practice be accepted as
law (opinio juris) means that the practice in question must be undertaken with a sense of legal right or
obligation.”

A third position that can be identified in the literature is that which distinguishes between “traditional”
and “modern” CIL, with the latter/ modern relying on an inclusive notion of state practice (for instance to
include resolutions of international organizations) and relatively greater emphasis on the element of
opinio juris. As has been pointed out, “[a] focus on opinio juris is appealing to those who want to expand
the set of norms that are considered CIL”; it can be said to represent an ethical turn in thinking about
CIL.
The “modern” concept of CIL indicates that there is no unique concept of opinio juris; it is a cultural
concept that changes over time. But there are others that reject the distinction between “traditional” and
“modern” approaches to CIL and require a more rigorous approach to opinio juris.

In sum, the formation of CIL has in recent times been a subject of much reflection and debate among
international law scholars with the aim of advancing a coherent theory of CIL and clarifying the elements
that constitute it.

The historical role of CIL has been to facilitate the functioning of global capitalist system by filling crucial
gaps in the international legal system. These gaps relate to either short term interests of capitalist states
or the systemic interests of the global capitalist system.

Prof. Chimni argues that the general lack of availability of the state practice of third world nations
compounds the problem of generating CIL norms that secure the interests of predominantly capital
importing nations. Today, rules of CIL in the areas of international human rights law (IHRL), international
humanitarian law (IHL), international criminal law (ICL), and international environmental law (IENL) are
also performing the function of sustaining its systemic interests through legitimizing global capitalism.

Different techniques have been used to prevent third world states from using CIL to frame rules to the
disadvantage of powerful capitalist nations, which is epitomized by the principle of persistent objector. In
view of the problems with traditional and modern doctrines of CIL, a postmodern doctrine of CIL needs
to be conceptualized to promote the global common good.

Re-imagining CIL:

The rapid changes brought about by decolonization, the end of the Cold War, and the accelerated
globalization process called for the articulation of fresh theories of CIL.

The challenges posed to CIL as a source of international law can be said to have been met in western
scholarship in two phases: 1960–1970 and 1980–present. The outcome has been new thinking on CIL
that has assumed two principal forms: positing a distinction between “formal” and “material” sources of
CIL and that between “traditional” and “modern” CIL. This period has also seen the invention of new
doctrines, such as that of the “persistent objector,” to meet the challenge of postcolonial states seeking
to use CIL to serve the interests of third world states.

The distinction between “formal” and “material” sources of CIL advanced by mainstream western
scholarship and endorsed by the ILC and ILA is challenged. It is contended that by separating “formal”
from “material” sources of rules, the ILA and ILC leave out of the picture the role of culture, power, and
interest in the framing, making, and determination of formal sources of CIL.

The formal sources of international law are “the processes through which international law rules become
legally relevant,” while the material sources “can be defined as the political, sociological, economic,
moral or religious origins of the legal rules.

The problem with the distinction between “formal” and “material” sources is that it conceals the historical
fact that the twin elements of state practice and opinio juris that together constitute the “formal” source
of CIL were identified. There can be alternative ways of identifying the formal sources of CIL, as can be
seen in the work of those scholars who support the idea of modern CIL relying heavily on the element of
opinio juris.

There is a lack of availability of state practice of third world nations in determining the formation of CIL.
He argues that the non-availability of the state practice of third world countries, and also the paucity of
scholarly writings on the subject, allows the identification of rules of CIL primarily on the basis of state
practice of advanced capitalist nations and the opinions of their scholars. In other words, while in theory
the state practice of all nations is important in the formation of CIL, this is not so in practice, allowing
developed capitalist nations to shape CIL. Even if state practice of third world states is available, the
doctrines of specially affected states and persistent objectors undermine their significance. The dearth
of scholarly opinion from the third world has also meant that the proposition of separating “formal” from
“material” sources has gone largely unchallenged.

These are the limits of modern CIL and therefore need to look into some bare elements of a postmodern
doctrine of CIL that can help realize the global common good. The essence of the postmodern doctrine
is the formation of CIL on the basis of deliberative reasoning rather than mere coordination of states. In
this context, the dissenting opinion of Judge Antônio Augusto Cançado Trindade in the Obligations
Concerning Negotiations Relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament
(Marshall Islands v. India) case is used to distinguish between opinio juris as a constituent element of
CIL and opinio juris communis as representing the juridical conscience of mankind.

It does not therefore come as a surprise that in the postcolonial era, attempts have been made by
western international law scholars to conceal the common roots of “formal” and “material” sources of
CIL. Its discovery threatened to disclose the parochial and racist origins of the rules of CIL.

The rule of persistent objector was developed to safeguard the concerns of western capitalist powers
after the beginning of the Cold War. According to Michael Byers, the ICJ first endorsed the rule during
the initial years of the Cold War in the 1950 Asylum Case.

But there was some concern that the rule may be invoked by postcolonial states in International
Investment Law, which embodies core interests of powerful states.

The dynamic concept of “modern CIL” ensures that even in the absence of state practice, CIL can
emerge.

Therefore, the reconceptualization of the doctrine of CIL is under way in order to facilitate changes in
the body of international law. The new concept need not necessarily replace the old doctrine but may
complement it; while a new doctrine does not lead changes in the international system, it can help bring
about modifications that lend it stability and legitimacy. The essence of those changes depends on the
nature of world order and the systemic transformation that has taken place.

But if suitably conceptualized, an innovative concept of CIL can inject progressive ideas and elements
into the international legal order. The fact that modern CIL prevents the legitimacy of the global capitalist
order from being undermined does not mean it can make system change possible. A fundamental
reason, of course, is that while CIL performs a constitutive role in international society but it is not the
primary determinant of change.

But a new doctrine, a postmodern doctrine, could help introduce important reforms in the international
legal order.

A postmodern doctrine of CIL would require that norm formation is based on deliberative reason and not
simply derived from the fact of coordination between states in the matrix of dominant or hegemonic
views of advanced capitalist states.

1. Role of state and non-state actors: The formation of CIL would rest on the force of better argument
advanced by state and non-state actors. The acceptance of the rules of deliberative reason will help
identify, clarify, and realize common interests. It will permit the international community to undertake
reforms at least in those areas in which common interests are predominant, such as extreme poverty,
gross violation of human rights, forced migration, environmental degradation, and possession, threat, or
use of nuclear weapons.

The stress on deliberative reasoning would also allow a distinction to be made between opinio juris as a
constituent element of CIL and opinio juris as representing the juridical conscience of humankind. This
distinction has been recently elaborated already discussed, by Judge Cançado Trindade in his
dissenting opinion in the Obligations Concerning Negotiations Relating to Cessation of the Nuclear
Arms Race and to Nuclear Disarmament (Marshall Islands v. India) case. In this case, Judge Cançado
Trindade favored CIL status for Article VI disarmament obligations of the Nuclear Non-Proliferation
Treaty as it was in accord with the juridical conscience of mankind. Judge Cançado Trindade went on to
distinguish between opinio juris as a constitutive element of CIL and as a critical element of the very
idea of international law

2. Resolutions of International Organizations: A postmodern doctrine would treat qualifying resolutions

of international organizations- those that are the outcome of extended negotiations, broad consensus,
clear articulation, and subsequent affirmations—as prima facie yielding rules of CIL. Whereas at
present, ILC Draft Conclusion 12(1) of 2016 simply states that “[a] resolution adopted by an international
organization or at an intergovernmental conference cannot, of itself, create a rule of customary
international law.

Resolutions accepted unanimously or almost unanimously, and which evince a clear intention on the
part of their supporters to lay down a rule of international law, are capable, of creating general
customary law by the mere fact of their adoption.
3. Role of NGOs: A postmodern doctrine would also link CIL formation to progressive ideas, beliefs, and
practices in the global civil society. Increasingly, non-governmental organizations (NGOs) have become
agents of lawmaking in the international legal order. But at present, the “practice” of civil society
organizations is not counted to determine whether a rule of CIL has emerged. ILC Draft Conclusion 4(3)
of 2016 states that the practice of actors other than states and international organizations “is not
practice that contributes to the formation, or expression, of rules of customary international law.” But
there are commentators who stress the need to “explore the prospect of permitting transnational and
non-governmental groups to have a legal voice in the creation of custom.”

General Principles of Law recognized by States

The International Law Commission produced a report on the possible codification and progressive
development of general principles of law recognized by international law.

In 2019, the Special Rapporteur came up with the first report on the general principles of law. The report
is preliminary and introductory in nature and its main purpose is to lay the foundation for the future work
of the Commission on the topic. Nevertheless, the report has come up with a set of three draft
conclusions on the general principles of law. It is interesting to note that the Draft conclusion-3 speaks
about the two categories of general principles of law: general principles of law derived from national
legal systems and general principles of law formed within the international legal system.

The dual categorization of the general principles of law by the ILC has no substantive roots in the
preparatory history of the ICJ’s Statute. Given this background, it is imperative to understand the current
significance of general principles of law and then explore whether the dual categorization of these
principles has any substantive roots in the preparatory work of the Permanent Court of International
Justice’s [PCIJ] Statute.

The general principles were incorporated under the category of primary sources within the Statute of the
PCIJ so as to avoid the possibility of non-liquet which may arise in situations where conventional and
customary laws are either silent or non-applicable.

General principles can be employed to interpret ambiguous and uncertain language in conventional and
customary international law. Principles such as “good faith” and “equitable performance” have been
relied upon to determine the rights and duties of states either in conventional or customary law. The
extent to which one can resort to general principles for interpretative purposes has not been defined, yet
we do understand that their application for such purposes should be in conformity with the existing
norms of international law.

General principles have been instrumental in the development of new norms of conventional and
customary international law. Scholars have recognized this function of general principles as essential to
the development of international law which is not a static but dynamic process. In certain situations,
general principles have provided a platform for the emergence of jus cogens.

Since the idea of general principles vests with its recognition by major national legal systems, it is a
matter of concern for some authors that the developing world may create any such principles to its
advantage at the cost of the developed world; therefore it is pertinent to codify them or lay down the
rules for their recognition.

President Descamps while addressing the need for general principles to be made a part of sources of
international law in 1920, stated that principles of justice might vary from country to country in respect of
certain rules of secondary importance but would be identical in the case of the fundamental law of
justice and injustice deeply engraved on the heart of every human being and which is given its highest
and most authoritative expression in the legal conscience of the civilized nations. That was the law
which could not be disregarded by a judge, a law which a judge would never disregard.

He was mindful that those principles must confirm with the legal conscience of civilized people. After
much deliberation, the term “general principles of law recognized by civilized nations” first appeared in
the amended draft proposal submitted by Mr. Root at the meeting of the Advisory Committee. The
proposal was approved by the Committee as well as the Assembly of the League of Nations.

He further pointed out that, since custom is already included as a source from which the general
principles were derived, there was no reason to put the “general principles of law” separately under the
doctrine of sources unless they could also be extracted from judicial decisions and juristic writings. On
 this, Lord Phillimore pointed out that the general principles referred in point were nothing but those
principles “which were accepted by all nations in foro domestico, such as certain principles of
procedure, the principle of good faith, and the principle of res judicata”.

Re-imagining the Concept of Sovereignty

Sovereignty EVOLUTION

With the Peace of Westphalia in 1648, modern nation-state system emerged. It coincided with theories
of sovereignty such as those propounded by Bodin and Hobbes, which underlined the supreme power
of the sovereign and led to notions of the sovereignty of states.

• Vattel later introduced the doctrine of the equality of states into international law, declaring that a small
republic was no less a sovereign than the most powerful kingdom, just as dwarf was as much a man as
a giant.

• The metaphysical identity of the state was later accepted, i.e. the view that state had a life and will of its
own and so was able to dominate international law.

• It was Hegel who first analysed and proposed the doctrine of the will of the state. The individual was
subordinate to the state, because state enshrined the ‘wills’ of all citizens that had evolved into a higher
will, and on the external scene the state was sovereign and supreme.

CONCEPT OF SOVEREIGNTY

• Sovereignty is the foundational and core doctrine of international law. It assumed many dimensions over
the years, e.g,

• territorial sovereignty, state jurisdiction, state consent, permanent sovereignty over natural resources,
and right to self-determination.

• Sovereignty assumed two meanings in international law—first the “immanence”, the vital energy of a
state, and second, the other dimensions of sovereignty, what John Jackson calls, the “other
dimensions”, the “slop-over penumbra”.

• As globalization challenged classical international law, the concept of sovereignty too came under this
threat. This has prompted a re-imagination of state sovereignty in newer light. This module captures
those imaginations using contexts like accession to the World Trade Organization (WTO).

• State and International Law sustain through the concept of Sovereignty.

• Vattel attributed a central position to the sovereign state and defined sovereigntty in the context of a
state, as well as its application in international relations: “Every Nation which governs itself, under
whatever form, and which does not depend on any other Nation is a sovereign State" .

• Sovereignty can be defined in terms of Nation- states’ right to monopolize.

• The old “Westphalian” concept of sovereignty, i.e. nation-state's "right" to monopolize certain exercises
of power with respect to its territory and citizens, has been discredited.

• But it is still prized by those who have Realist views. They wish to prevent international powers and
authority from interfering in national Govt’s decision and activities.

• PHASES OF SOVEREIGNTY

• Phase I: The Treaty of Westphalia marks the first phase in the development of the modern notions of
sovereignty. This led to the establishment of modern system of nation-states, in which the sovereign
reigned supreme domestically, as well as in its relations with other states. In this regard, the monarch
who gives the law is considered to be above the edicts of his own commands (Bodin, 1962).

• Phase II: The second phase in the development of the principle of sovereignty was ushered in by World
War II and its conclusion in 1945. In this phase, the absolute power claimed by sovereign states came
with the creation of the UN and various Inter-governmental bodies that espoused the idea of collective
actions and state accountability to an international community. Here, states moved away from absolute
rule and began to share some of its functions with institutions above and below the national level
(Cohan, 2006) and states undertook actions to cooperate with each other for mutual benefits, they
 ceded some of their authorities. Following World War II, there was a proliferation of international
organizations. These international institutions were put into place to harmonize both economic and non-
economic agendas of the world community. As a result, the international system became a “tightly
woven fabric of international agreements, organizations and institutions that shaped states' relations
with one another and penetrate deeply into their internal economics and politics.” (Chayes & Chayes,
1998)

• Phase III: The next phase of the development of state sovereignty is rooted in the wave of
democratization that swept the world after the collapse of the Soviet Union and subsequent end to the
Cold War. There was demand for democratic institutions, values, and practices necessary to make the
government more attuned to their needs. In this phase, there was a renaissance of the idea of
sovereignty as something that emanated from the people, rather than being something inherent in the
state (Reisman, Coercion and Self Determination: Construing Article 2(4), 1984).

• Another phenomenon that has led to the erosion of sovereignty is globalization. Globalization is
the interaction between people and economic entities due to the ever-decreasing costs and time-
efficient means of moving goods and services. The ease with which information is collected and
disseminated across borders has curtailed the ability of authoritarian states to control the flow of
communication in and out of the state. In another way, the communication revolution has worked to
enhance the interdependence of sovereignty by giving the state a greater capacity to keep tabs on
those within its borders by deploying surveillance technologies (Kelleh, 2012).

• Thus it can be seen that the ideas inherent in sovereignty have changed over time in phases and
continue to do so up to today.

• Criticism of concept of sovereignty

• One eminent scholar has described the sovereignty concept as "organized hypocrisy”.

• Some have referred to it as being "of more value for purposes of oratory and persuasion than of science
and law”.

• Sovereignty has also been explored as a "social construct." According to this view, “Numerous practices
participate in the social construction of a territorial state as sovereign, including the stabilization of state
boundaries, the recognition of territorial states as sovereign, and the conferring of rights onto sovereign
states”.

• International co-operation requires that all States be bound by some minimum requirements of
international law without being entitled to claim that their sovereignty allows them to reject basic
international regulations.

• The world community takes over sovereignty of territories where national governments completely fail
and national sovereignty has disappeared in those territories. The world community has sufficient
means to step in with the help of existing States and has therefore the obligation to rule those territories
where the governments fai1.

• After the crisis in Somalia, Rwanda, Bosnia, Kosovo… need was felt to reconsider the concept of
sovereignty.

• Secretary-General Kofi Annan then expressed impatience with traditional notions of sovereignty: A
global era requires global engagement. ... If States bent on criminal behaviour know that frontiers are
not the absolute defence; if they know that the Security Council will take action to halt crimes against
humanity, then they will not embark on such a course of action in expectation of sovereign impunity.

• Weapons of mass destruction, genocide, failed states, and rogue states all pose extreme conceptual
problems for doctrines of sovereignty. But, of course, an important dilemma develops when international
institutions do not have the capacity or the will to act to prevent or redress such extreme dangers to
world peace and security or to particular regions and populations.

• In the area of trade policy, one finds many instances of avoidance of "sovereignty concepts." An
example is the GATT and now, the WTO, whose membership is not limited to a "sovereign entity" but,
instead, to a State or separate customs territory possessing full autonomy in the conduct of its external
commercial relations.

• Sometimes the principle of non-interference on the nation-state level is closely linked to sovereignty, yet
today's globalized world has instances in which the actions of one nation (particularly an economically
 powerful nation) influence the internal affairs of other nations. For example, powerful nations have been
known to influence the domestic elections of other nations and to link certain policies or advantages
(such as aid) to domestic policies relating to subjects such as human rights.

• International organizations also partake in some of these linkages, for instance International Monetary
Fund (IMF).

• The author expresses the view that the complete elimination of the word or concepts associated with
"sovereignty" would lose some important principles.

Power Allocation

• Today, no sensible person would agree that the antiquated version of sovereignty exists.

• What does "sovereignty," as practically used today, signify?

• “Sovereignty" used in current policy debates- refers to questions about the allocation of power; normally
"government decision-making power."

• That is, when someone argues that the United States should not accept a treaty because that treaty
infringes upon U.S. sovereignty, what the person most often means is that he or she believes a certain
set of decisions should be made, as a matter of good governmental policy, at the nation-state (U.S.)
level, and not at the international level.

• To re-imagine the concept, we need to look at re-allocation of power- to horizontal power allocation.

• Nation- Consent is paramount in Sovereignty: whether through treaty or through Customs

• Some of the traditional international law concepts may stretch the notion of state consent. Examples of
consent include:

• (1) A nation finds that its trade or financial welfare requires it to accept a major complex treaty because
most of the rest of the world has done so (e.g., via the WTO or IMF).

• (2) The UN or other major charter is deemed so fundamental that its interpretation of obligations
"evolves" by developing "practice under the agreement" in unexpected ways.

• (3) Voting rules and procedures may result in anomalies that lead to decisions that do not reflect a
membership as a whole. Various pressures may be placed upon voting nations through favors or "vote
buying." An individual nation-state may have no particular interest in the vote on an issue, and thus be
willing to "hold out" (ransom its vote) or swap its vote on this issue

• A core of cases is being recognized as not satisfactorily solved by "consent doctrines." This is where the
sovereignty revisionist theories have teeth, and where, in this author's opinion, confusion and
uncertainty reign, and possible "auto-determination" poses a serious risk to some traditional concepts of
sovereignty, as well as to "rule-based" objectives for international relations.

• Power- allocation Problems

• Economics and Markets: Market failures in a nation has impact internationally (result of globalized
society). Most often, the international institutions do not have powers that can effectively tax, subsidize,
or materially alter market mechanisms. Another governmental response is to maintain rules and
prohibitions. And government response at the international level raises an important practical question
as to whether a particular rule or prohibition will in fact be effective (i.e., followed), and therefore operate
efficiently to correct the market failure. (Will international rule/ prohibition work?)

• International Rules on Competition Policy: There has been a debate about whether an international
competition policy or set of rules on international competition policy be put in place. Quite a disconnect
separates the United States and the European Union on this question. In Europe, the Brussels
institutions, at least, have expressed a strong desire for policy at the international level (EU member
states may be less interested in this). In the United States, the idea has provoked considerable
opposition. Originally, the United States said there was no real need for it. Subsequently, however, even
the United States has appeared to be softening, as evidenced by the constitution of a special
commission several years ago (the International Competition Policy Advisory Committee, or ICPAC) to
study this issue. ICPAC issued a report that said: each year, more and more U.S. antitrust cases involve
an international aspect. This development, together with the emerging trend that suggests a need for a
 response to market failure, leads some to argue for at least minimal policy coordination at the
international level.

• The WTO and Its "Constitution": The WTO can become a major illustration of principles. Certainly, one
of the more intricate and elaborate examples of power allocation principles can be witnessed in relation
to the WTO. Globalization and the problems that accompany it are forcing institutions to adapt or create
institutions that can cope. Clearly, many of these problems relate to treaty clauses that penetrate deeply
into a nation-state's "sovereignty" decisions about economic regulation. Thus, any international
cooperative mechanism will, of necessity, clash with national "sovereignty,“ and with special national
interests whose own economic well-being will be affected by the international decisions. As outlined by
very eminent economists (such as Douglass North and Ronald Coase), markets will not work unless
there are effective human institutions to provide the framework that protects the market function.
Therefore, the core problem is the globalization-this has caused need to develop appropriate
international institutions. If a thorough analysis led to the conclusion that the WTO is a good place in
which to concentrate some of these cooperation activities, one could see the WTO becoming essentially
an international economic regulatory level of government. This prospect is scary to many people.

• The WTO plays two major, and somewhat conflicting, parts with respect to the power allocated to
it:First, it moderately enhances the institutional structure for negotiating and formulating rules and
changing them as needed for the conduct of international trade and certain other economic activities.
Second, the WTO operates an extraordinarily powerful dispute settlement system, which is basically
unique in international law history. This system has rare characteristics for an international institution:
mandatory jurisdiction and submittal to its procedures, as well as an appellate process that was
established to try to achieve a higher degree of coherence and rationality in the rules of the massive
treaty clauses applying to the WTO's subject competence.

• One can immediately see a series of power allocation issues, not only as between nation-states and the
WTO, with regard to its two different parts, but also allocation as between those parts.

• Sovereignty- Modern

• One possibility would be to recognize certain international institutions as the legitimate entities to decide
on some of these parameters. This approach would require that such an institution seriously discuss
these limits and modes of activity, and that it develop these limits with enough precision to be useful to
national and international decision makers. This seems to be more carefully done in juridical institutions,
which might well be an argument for more reliance on such institutions. However, "checks and
balances" are needed regarding those institutions, lest they go wrong through faulty analysis, lack of
adequate empirical information, or their remoteness from the real-world activities that are relevant to
reasoned and just opinions.

• Another possibility is to follow a chain of reasoning, developed by some scholarly analysis, that
traditional "sovereignty" concept themselves must evolve and be redefined. This avenue might also be
pursued by juridical institutions. "Sovereignty of people," rather than governments, is sometimes
mentioned in this context.

• 3. Another, and probably more heroic, possibility is to develop a general theory of sources of
international law based on what some authors have called the "international community”. It could well
imply participation by non-governmental persons and entities, and it could embellish the more traditional
concepts of "practice" under agreements or opinio juris, to stretch those frontiers. The risk and problem
is the imprecision. It has been invoked in some situations, such as the Kosovo crisis, with the phrase
“overwhelming humanitarian catastrophe”.

• 4. Yet another approach is to use the concept of "interdependence," often most associated with
economic policy and activity, to justify certain new norms. In many of these cases, this concept can
probably be used in tandem with more traditional sovereignty and nation-state consent approaches to
persuade nations to give such consent. Frequently, a key question, however, is the hold-out state, which
in some economic circumstances is given added incentives to hold out when other states are
constraining their reach for policy and economic advantages

• Need to re-imagine the concept of sovereignty, though can’t do away with the concept because doing
away could foster chaos, misunderstanding, and conflict.

• A major part of this approach is to understand the pragmatic functionalism of the allocation of power as
between different levels of governance entities in the world. (horizontal allocation of powers)
 • The substitute for portions of nation-state sovereignty will probably be international institutions that
embrace a series of legitimizing "good governance" characteristics, such as some of those
recommended by Robert Keohane and other thinkers and philosophers. Among those, characteristics
one can expect a broader set of participants than just nation-states, but also non-state and
nongovernmental bodies and individuals, including economic (business) actors; moral, religious, and
scholarly entities; and international organizations. Those characteristics will likely include elements of
"democratic legitimization" and some notions of "democratic entitlement," not only for nation-states, but
also for international institutions.

• Institutions need to evolve to keep up with the changing world- It is more and more probable that a
juridical institutional structure of some kind will be seen as a necessary part of any such international
institution, and that the use of force or other concrete actions impinging on local societies will be
constrained by the institutional and juridical structures. This is, in essence, a "constitutional“ approach to
international law. Thus, international lawyers must "morph" into constitutional lawyers.

What is justice?

• Comes from Latin Justitia which means fairness, equity.

• Social, economic, political, natural justice.

• Domestic political theory or domestic idea of justice is much more developed than global justice.

• The global justice is in such a rudimentary form that even the questions aren’t clear, let alone the
answers.

• the nation-state is the primary locus of political legitimacy and the pursuit of justice, and it is one of the
advantages of domestic political theory that nation-states actually exist. But when we are presented with
the need for collective action on a global scale, it is very unclear what, if anything, could play a
comparable role.

• When it comes to criminal justice it is very easy to establish it as they have certain internationally
recognised standards. But when it comes to socio-economic justice, it is difficult to gauge.

What is global justice?

• A nexus between globalization and human rights.

• What are human rights? Set of guaranteed rights that are universal in nature, enumerated as rights and
freedom in UDHR. Examples of human rights are- Freedom of assembly, Freedom of religion, Right to
life, Freedom of expression, Right to equality before the law, Freedom from discrimination.

GLOBALIZATION AND HUMAN RIGHTS

• Companies operate across borders and are gaining

• increasing influence and power

• Corporate activity has not always benefited the society it operates in

• There are few effective tools to prevent human rights abuses or hold companies accountable

• People affected are left powerless and vulnerable

• Natural environments are exploited, unprotected, and have devastating long-term implications

two central issues of traditional political theory

1. Justice and sovereignty

The issue of justice and sovereignty was memorably formulated by Hobbes. He argued that although we can
discover true principles of justice by moral reasoning alone, actual justice cannot be achieved except within a
sovereign state. Hobbes first maintains that 'Justice' is only found under a strong sovereign government
and that always pursuing to follow all laws under that sovereign is to remain just and most reasonable

2. Justice and Equality

Rawls argued that the liberal requirements of justice include a strong component of equality among citizens, but
that this is a specifically political demand, which applies to the basic structure of a unified nation-state. Whatever
standards of equal rights or equal opportunity apply domestically, the question is whether consistency requires
that they also apply globally. John Rawls was an American political philosopher in the liberal tradition. His theory
of justice as fairness describes a society of free citizens holding equal basic rights and cooperating within
an egalitarian economic system.

Amartya Sen’s idea of Justice-

• Amartya Sen's main arguments is that the project of social justice should not be evaluated in binary
terms, as either achieved or not. Rather, he claims that justice should be understood as existing to a
matter of degree, and should correspondingly be evaluated along a continuum.

• Sen maintains that there are many principles that can pass the test of impartiality. He illustrates this
point, using an anecdote about the competing claims of three children over the distribution of a single
flute. One child argues that they should receive the flute because they are the best flautist; the second,
because they are the poorest of the lot; and the third, because they crafted the flute without help from
the others. The three arguments are based, in turn, on principles of utility, economic equity, and the
entitlement to the fruits of one’s unaided efforts. Each can be defended with strong, impartial
arguments. 

Q) Is the current international economic order unjust?

• Judging by its outcomes the answer is ‘yes’

• Thomas Pogge, the prominent moral philosopher and critique of economic order- ‘Many more people –
some 360 million – have died from hunger and remediable diseases in peacetime in the 20 years since
the end of the Cold War than perished from wars, civil wars, and government repression over the entire
twentieth century.’ For Pogge, it is the current design of international institutions that makes these
staggering inequalities between the affluent and the poor possible: ‘The present rules favor the affluent
countries by allowing them to continue protecting their markets through tariffs, anti-dumping duties,
quotas, export credits, and huge subsidies to domestic producers in ways that poor countries are not
permitted, or cannot afford, to match.’

• Joel P. Trachtman expresses the view that moral philosophy alone is not helpful in answering intricate
questions of justice regarding the rules of the global economic order.

• Emmanuelle Tourme-Jouannet, in What Is a Fair International Society?, assesses the state of the world
in 2013 as follows: ‘The rules governing globalization are unfair as they are designed once again
primarily with the advanced industrial nations in mind. Certainly, some emerging countries have
benefitted from them, but the rules are not equitable ... Contrary to the idea that globalization benefits
everyone, there are losers on both sides, North and South.’

For Thomas Nagel, an obligation to redistribute wealth globally does not stem from principles of justice but from
elementary considerations of humanity

Can Existing International Legal Rules and Institutions Be Transformed or Developed into a More Just
Economic Order?

• A central question emerging from the global justice debate on institutional and individual responsibilities
is the extent to which international law and its institutions are considered a key mechanism to either
cement or alleviate extreme poverty and staggering inequalities between the affluent and the poor
countries.

• Tourme-Jouannet concludes, globalization is the result of numerous conscious policy decisions based
on legal interventions by international policy elites assisted by international lawyers during the last 25
years.

• Is it only the IIs to be blamed or the national governments too?

• While international institutions can be powerful agents to improve the circumstances of the least
advantaged people, they often fail to do so: it is because the rules and practices of these institutions are
more aligned with the powers and processes that produce or perpetuate injustice than with those who
seek to undermine it. It does not make sense to turn to IOs as neutral arbiters in a struggle between
 interests that has produced unjust outcomes: The policies and programs that states and international
organizations enact themselves tend more to reflect the outcome of those struggles than to balance
between or adjudicate them.

• The meta-narrative of development was an attempt by the West to fix a polarization between those who
are developed and those who are underdeveloped, replacing the 19th-century differentiation between
civilized and non-civilized peoples. But ‘the underdeveloped can never catch up, in part because of all
the trash the developed states have left in their way, from toxic waste to historical baggage’. Moreover,
it is just physically impossible for the whole world to enjoy the material lifestyle enjoyed by the
developed states without producing an environmental apocalypse. Both the Washington consensus and
the liberal ideology of development have ‘benefited the West more than it has benefited the
underdeveloped countries that are its erstwhile focus’.

What Role for International Lawyers?

• Which approach should we take – moral philosophy or economic studies?

• The question is whether replacing moral philosophy with economics as the guiding light in the
global justice debate results in international lawyers jumping from the frying pan into the fire.

Cases Global Justice

• International scenario:

i. Wiwa v Royal Dutch Shell (1958-2009) settlement 15.5 million USD

ii. Sinaltrainal v Coca Cola (2001-2006) Court dismissed the case on the ground of
insufficient connection between Colombian govt and the defendant companies.

• Indian scenario:

i. Narmada Bachao Andolan

ii. BT Cotton by Monsanto

iii. Bengal-Haldia-Mitsubishi chemical

types and Theories of justice

• Types of justice:

i. Distributive: Determining the distribution of resources.

ii. Procedural: Determining the level of fairness between the members of society.

iii. Retributive: Looking at the wellbeing of society by implementing punishments for

wrongdoings.

iv. Restorative: Restoring the relations based on rightness.

These are a few traditional types of justice, or rather say types of criminal justice. New/advance forms of justice
include political, social and global justice.

Some problems such as poverty, liberty, corruption, famine, pandemics, global warming, subjugation of women,
unemployment and inequalities have always been associated with the question of justice, and we cannot discuss
these problems without dealing with the idea of justice with a serious and critical approach. Today these are not
only considered as local or national problems but also global problems. Thus, any discussion and suggestion
on the idea of justice is significant, because it obviously enriches our understanding of justice. These discussions
on the question of justice enable us to have a critical consideration and rethinking of our view on justice. We see
concrete result of these discussions to advance justice and change our life in this sense. For example, if there
was no history of discussions on justice in terms of liberty and human rights, slavery would remain as an
acceptable and just practice in the world. Thanks to these discussions, we look for possible new alternatives and
solutions that help us to deal and cope with the unjust acts or policies.

• Theories of Justice:

i. Hobbes’ theory of justice

ii. John Rawl’s theory of justice

iii. Amartya Sen’s idea of justice

Hobbes’theory of justice

• For Hobbes, the state of nature is characterized by the “war of every man against every man,” a
constant and violent condition of competition in which each individual has a natural right to everything,
regardless of the interests of others. Existence in the state of nature is, as Hobbes famously states,
“solitary, poor, nasty, brutish, and short.” The only laws that exist in the state of nature (the laws of
nature) are not covenants forged between people but principles based on self-preservation. What
Hobbes calls the first law of nature, for instance, is that every man ought to endeavour peace, as far as
he has hope of obtaining it; and when he cannot obtain it, that he may seek and use all helps and
advantages of war.

• In the absence of a higher authority to adjudicate disputes, everyone fears and mistrusts everyone else,
and there can be no justice, commerce, or culture. That unsustainable condition comes to an end when
individuals agree in a social contract to relinquish their natural rights to everything and to transfer their
self-sovereignty to a higher civil authority, or Leviathan.

• For Hobbes, the authority of the sovereign is absolute, in the sense that no authority is above the
sovereign and that its will is law. That, however, does not mean that the power of the sovereign is all-
encompassing: subjects remain free to act as they please in cases in which the sovereign is silent (in
other words, when the law does not address the action concerned). The social contract allows
individuals to leave the state of nature and enter civil society, but the former remains a threat and
returns as soon as governmental power collapses. Because the power of Leviathan is uncontested,
however, its collapse is very unlikely and occurs only when it is no longer able to protect its subjects.

• John Rawls developed A Theory of Justice based on the social contract theory. In opposing the
utilitarian arguments, Rawls attempted to establish an unbiased version of social justice based on the
social contract approach. The social contract approach holds that society is in the form of agreement
 with all those within the society. The approach originated from an 18th-century philosophical and
intellectual movement called the Age of Enlightenment.

• The movement assumes that members of a society have consented to surrender some of their
freedoms and submit to the authority of the ruler in exchange for the maintenance of social rights and
the protection of their remaining rights. Rawls opines the idea of justice as fairness, and he identifies
social justice as the first characteristic of social institutions.

• Rawls argued that equal distribution of resources should be the desirable state of nature instead of
following utilitarian philosophies.

• A Theory of Justice holds that every individual has an equal right to basic liberties, and that they should
have the right to opportunities and an equal chance as other individuals of similar ability.

• John Rawls presented two principles of justice that self-interested and rational individuals would
choose when separated by the veil of ignorance. The principles include:

• 1. Principle of Equal Liberty

• The principle of equal liberty is the first principle of justice to be derived from the “original position”. It
states that all citizens have an equal right to basic liberties, which, according to Rawls, entails freedom
of conscience, expression, association, and democratic rights.

• Rawls added the right of personal property as one of the basic liberties that individuals should have, and
that cannot be infringed or amended by the government. He, however, excluded an absolute right to
unlimited personal properties as part of the basic liberties that people should have.

• 2. Principle of Equality

• The principle of equality holds that economic principles should be arranged in a way that they meet two
requirements. First, the least advantaged in society should receive a greater number of benefits.

• Second, the economic inequalities should be arranged in a way that no individual is blocked from
occupying any position or office, regardless of their ethnicity, sex, or social background. Rawls argued
that all individuals in the society should have fair equality of opportunities and an equal chance as
everybody else of similar natural ability.

• In A Theory of Justice (1971), Rawls attempted to develop a nonutilitarian justification of a democratic

political order characterized by fairness, equality, and individual rights. Reviving the notion of a social
contract, which had been dormant since the 18th century, he imagined a hypothetical situation in which
a group of rational individuals are rendered ignorant of all social and economic facts about themselves
—including facts about their race, sex, religion, education, intelligence, talents or skills, and even their
conception of the “good life”—and then asked to decide what general principles should govern the
political institutions under which they live. From behind this “veil of ignorance,” Rawls argues, such a
group would unanimously reject utilitarian principles—such as “political institutions should aim to
maximize the happiness of the greatest number”—because no member of the group could know
whether he belonged to a minority whose rights and interests might be neglected under institutions
justified on utilitarian grounds. Instead, reason and self-interest would lead the group to adopt principles
such as the following: (1) everyone should have a maximum and equal degree of liberty, including all
the liberties traditionally associated with democracy; (2) everyone should have an equal opportunity to
seek offices and positions that offer greater rewards of wealth, power, status, or other social goods; and
(3) the distribution of wealth in society should be such that those who are least well-off are better off
than they would be under any other distribution, whether equal or unequal. (Rawls holds that, given
certain assumptions about human motivation, some inequality in the distribution of wealth may be
necessary to achieve higher levels of productivity. It is therefore possible to imagine unequal
distributions of wealth in which those who are least well-off are better off than they would be under an
equal distribution.) These principles amount to an egalitarian form of democratic liberalism. Rawls is
accordingly regarded as the leading philosophical defender of the modern democratic capitalist welfare
state.

• Summary of Rawls' A Theory of Justice

• The most important task is to make clear Rawls' notion of justice as fairness, which is the thesis he
defends, and to provide some of his argumentation.
 • The first chapter introduces the notion of justice. In brief, Rawls gives a preliminary introduction of his
ideas of the principles of justice and the original position. He does this in order to explain that his view is
different from utilitarianism, moral intuitionism, and certain kinds of moral perfectionism.

• The second chapter introduces Rawls' two principles of justice, which the book as a whole seeks to
defend.

• The third chapter deals with the original position, which is the basis of Rawls' procedure that he used to
derive the principles of justice. To put it briefly, if people were in ideal circumstances to choose the
principles that would shape society--the original position--he thinks they would choose the principles of
justice as fairness.

• The fourth chapter focuses on equality of liberty and thus helps to elaborate on the first of the two
principles of justice. He addresses liberty of conscience, toleration, and the rule of law.

• The fifth chapter deals with justice in the economy, which in his terms does permit inequality. However,
such inequalities must provide the greatest benefit to the worst off, and the offices with increased
powers need to be fairly open to all. Rawls addresses several other social modes of inequality, for
instance, by discussing justice between generations.

• The sixth chapter deals with issues relating to government. These include majority rule and an extensive
discussion of civil disobedience. For Rawls, even in a society that approaches justice, it will
nevertheless be morally important to engage in acts of civil disobedience provided certain moral criteria
are satisfied.

• The seventh chapter deals with theories of the good and their place in a liberal society. For Rawls, a
liberal society is fundamentally ordered by a principle of rightness--that is, justice--and not any particular
theory of the good. Nevertheless, he argues that all rational theories of the good are amenable to a
liberally just society.

• The eighth chapter deals with a sense of justice. In this chapter, Rawls seeks to situate his developed
theory among common sense notions of justice and morality as well as discuss the meaning of a well-
ordered society.

• The ninth and final chapter offers some remarks to further defend his notion by showing that a just
society is itself good, meaning that it satisfies general concerns about a good society in a way that
specific theories of the good would be receptive to.

• Criticism Faced by John Rawls Theory of Justice

• After its release, John Rawls’ Theory of Justice has received a lot of criticisms from fellow philosophers
and book reviewers.

• Various philosophers who are advocates of the theory of strict equality criticized the book by saying that
certain inequalities that are to be permitted in the eyes of John Rawls are unacceptable even if they did
benefit the least advantaged members of society. They also argued that this approach of allowing
certain inequalities upsets the balance of a well-structured society that Rawls spoke about in his book.
Lastly, as Rawls primarily used utilitarianism as the main theory for comparing his own theory,
philosophers criticized the book for not portraying maximum utility. They protested against the portrayal
of the Difference Principle.

Amartya Sen’s idea of justice

The 1998 Nobel Laureate was awarded for his work in welfare economics, but to describe him

as an “economist” would be inaccurate. Better would be “social philosopher,” or, the old
term “political economist,” since the scope and range of Sen’s work is  directly comparable to that of such 18th
and 19th century practitioners of Political Economy as John Stuart Mill, Adam Smith, and Karl Marx.

• While critiquing Rawl’s theory of Justice, Sen redefined justice as "The theory of justice must be more
concerned with the elimination of removable injustices rather than defining a perfectly just society”.

• Dealing with a complex issue like justice and its relevance in the practical sense, Sen suggested that
one might revert back to the ancient Hindu thought which examines the concept
of Niti  and Nyaya. Niti in Sanskrit legal thinking deals with just rules and institutions, while Nyaya is
about their realization. Niti is an abstract exercise that, if implemented completely, would result in
 maximum public welfare and justice. Nyaya, on the other hand, relates to the enforcement of laws and
regulations.

• Sen said that the questions like-- What is justice? What does a just society look like? And what
principles should guide us there? which all the political philosophers were mired to answer were the
wrong questions to ask. These questions reveal little about how we can identify and reduce injustices in
the here and now.

• According to Sen, the dominant approach of ‘transcendental institutionalism’, is beleaguered/challenged

by two central problems: the problem of feasibility and the problem of redundancy

• the problem of feasibility is a result of the practical difficulty, or even impossibility, of arriving at a single
set of principles that can help us to select just institutions through a process of impartial reasoning.

• He refutes Rawls’ ‘veil of ignorance’ and ‘maximin principle’ by the anecdote of

three children, Ann, Bob and Carla, who are quarrelling over the fate of a flute.
Sen’s point is that one can produce 
intuitively plausible reasons for giving the flute to any one of the children.

• Utilitarians and Aristotelians would favour Ann, 

egalitarians Bob, libertarians Carla, but the real point here is that there is no  reason to
assume, as Rawls and most of his followers do, that we have to decide 
which of these answers is the right one. Sometimes there is simply a plurality of 
“right” answers. The idea that there is only one kind of just society a liberal 
society defined by principles set out in Rawls’ model-- and that all others 
represent a falling off from this ideal does not seem a plausible response to the 
pluralism that undoubtedly exists in the modern world.

• The second problem - the redundancy problem - is that the identification of fully just social
arrangements is neither a necessary nor sufficient guide to just policies, strategies or institutions. It is
insufficient because, ‘the characterization of spotless justice, even if such a characterization were to
emerge clearly, would not entail any delineation whatsoever of how diverse departures from
spotlessness would be compared and ranked’. Using an analogy with paintings, the fact that a person
regards Da Vinci’s Mona Lisa as the most perfect picture in the world does not reveal anything about
how they would rank a Picasso against a Van Gogh. But it is also unnecessary because in adjudicating
between the various merits of a Picasso and a Van Gogh there is no reason to identify the most perfect
picture in the world, just as when determining the relative heights of Mount Kilimanjaro and Mount
McKinley knowing that Mount Everest is taller than both is an entirely redundant fact.

• In contrast to this ‘transcendental institutionalism’, Sen advocates a ‘realization-focused comparative

approach’ which is not only modern but also efficient in this globalized world.

• In doing so, he sides with thinkers such as Adam Smith, Marquis de Condorcet, Jeremy Bentham, Mary
Wollstonecraft, Karl Marx, and JS Mill, among others, who each attempted to evaluate the desirability of
particular ‘social realizations’, rather than search for a set of perfectly just first principles.

• Consider first  the issue of economic versus political rights. It is sometimes argued that poor
countries cannot
afford to be too concerned with political rights until the economic needs of their citizens are met: As is oft
en stated with rhetorical flourish, political rights mean nothing to someone who is starving.
Sen argues persuasively that this argument is based on a false opposition. Deprivation largely takes
the form of the absence of an entitlement to some good, rather than the absence of the good 
itself; thus, in most, if not all, famines the problem is not an absolute absence of food, but the
fact that some people, as a result of poverty, or even
perhaps of government policy, do not possess an entitlement to the food that is available.

• He observes justice from the aspect of entitlement and observes entitlement from different dimensions
such as– rich and poor (class difference, as mentioned above), men and women (gender difference),
culture.

• elaboration of the social choice theory, which is crucial to his understanding of how we actually

compare the impact of different policies. It is important here not to confuse the theory of social choice
with “rational choice theory.” The latter assumes that individuals are rigidly self‐
interested, and indeed defines rationality as the  pursuit of self‐interest;
 whereas Sen insists that fairness involves a reasonable concern for the interests of others,
and his account of social choice theory reflects this insistence.

Critiquing Eurocentric values

• In his book The Argumentative Indian, Sen has argued that, contrary to the stereotype of Indian culture

as spiritually‐oriented and mystical (and therefore unconcerned with issues of social justice), there are 
strong Indian philosophical traditions that stress the importance of rational argument and the value of
tolerance. Classic Sanskrit texts such as the Laws of Manu and the Bhagavad Gita
are as illuminating on the subject of justice as most
works within the Western canon, and rulers such as Ashoka and Akbar were
considerably more tolerant and rational than their Western contemporaries. Sen is a strong supporter
of so‐called Enlightenment values, but he resists the idea that these values are necessarily tied
to Western ways of thought. Reason, justice, and liberty are not uniquely Western ideas that the
rest of the world are invited to acknowledge and adhere to; they are part of the common heritage of
humanity. In this, his position contradicts Western triumphalism but also the kind of post‐colonial
theory that denigrates these notions as the product of Western imperialism.

Globalization: A Rights based Perspective

Need for Rights based approach

◦ The process of globalization can have a deep impact on the process of development, in positive as well
as negative ways.

◦ Globalization brings about structural changes within an economy. It opens up new opportunities for
enhancing employment and income. At the same time, it also closes down, or at least diminishes, many
existing means of livelihood: opportunities open up in activities in which a country has comparative
advantage and diminish in those in which it has comparative disadvantage. This may have profound
implications for the achievement of the right to development.

◦ Even if it could be shown that globalization has indeed contributed to widening inequality in the world, it
does not follow that globalization must necessarily do so. In the 1950s and 1960s, it was believed that
when a backward economy initially begins to develop towards capitalism, income distribution
necessarily worsens, before improving much later.

◦ There is a need for taking the human rights approach to development even more seriously in the age of
globalization.

◦ The comparative advantage may undergo rapid change during the process of globalization.

◦ Any country that has already embraced globalization may find that its comparative advantage keeps
changing as the net of globalization spreads and brings in new countries. For instance, Malaysia and
Taiwan may find that the comparative advantage they have long enjoyed in labour-intensive garment
industries is suddenly eroded as Bangladesh and Vietnam enter the export market with even cheaper
labour. Similarly, the Latin American countries that once found comparative advantage in labour-
intensive activities when they first embraced globalization may soon find that they no longer have
comparative advantage in those activities when China and India enter the scene. The problem is that
shifting comparative advantage of this kind can keep the structure of an economy in a constant state of
flux for a prolonged period.

◦ The disruptive effects of globalization may, therefore, be quite serious.

◦ Globalization has the potential for hurting the weaker segments of the population unless conscious
efforts are made to protect them.

◦ This is where the human rights approach to development can play an important role. The normative
framework of international human rights is particularly concerned with individuals and groups that are
vulnerable, marginal, disadvantaged or socially excluded.

◦ Two elements of the international human rights framework are especially relevant here. These are the
twin principles of:

◦ 1. non-discrimination and equality and

 ◦ 2. the principle of non-retrogression of rights (progressive realization of rights).

◦ The principles of non-discrimination and equality are among the most fundamental elements of
international human rights law. These are elaborated in numerous human rights instruments, including
the UDHR, the two International Covenants on Human Rights, the International Convention on the
Elimination of All Forms of Racial Discrimination, the Convention on the Elimination of All Forms of
Discrimination against Women and the Convention on the Rights of the Child.

◦ Recognizing the fundamental importance of these twin principles, the international community has
established two treaty bodies:

◦ the Committee on the Elimination of Racial Discrimination and

◦ the Committee on the Elimination of Discrimination against Women, which are devoted exclusively to
the promotion and protection of non-discrimination and equality.

◦ Adherence to the human rights approach to development requires that those who are systematically
hurt by the disruptions caused by globalization be accorded special attention. In particular, efforts will
have to be made to equip them with the skills and resources necessary to take advantage of the new
opportunities and to remove the impediments they face in getting access to employment so that their
loss can be minimized and the scope for gaining from new opportunities maximized.

◦ The principle of non-retrogression of rights can also play a protective role for vulnerable people. This
principle states that no one should suffer an absolute decline in the enjoyment of any right at any time.
Globalization can clearly lead to a violation of this principle if the rapid structural changes it brings about
lead to serious disruption that the weak and vulnerable suffer an absolute decline in their living
standard.

◦ The right to development approach demands that an adequate social protection scheme be put in place
to prevent such a decline. This is essential if globalization is to be pursued in a manner consistent with
the principle of non-retrogression of rights.

Globalization and Protection of Human Rights

◦ There is a great impact of globalization on the ability of nation states to discharge their human rights
obligations.

◦ Globalization entails both constraints and opportunities, and much depends on how national and
international policies attempt to deal with them.

◦ Constraints on Human Rights approach to globalization (3 fold):

(1) how the competition that is prompted by globalization affect workers’ rights (Rights of Labourers),

(2) how the drive towards liberalization of trade and capital flows undermine the fiscal powers of nation
states to discharge their human rights obligations, and

(3) how changes in the production & employment induced by globalization threaten the rights of the poor
and weaker segments of the society.

1 Competition and Rights of Labourers

◦ The world community has come a long way in accepting minimum labour standards which were
recognized after a long struggle by the labour class. The ILO has defined them as core “labor
standards”, which include

(1) prohibition of forced labour,

(2) freedom of association,

(3) the right to organize and bargain collectively,

(4) elimination of the exploitation of child labor, and

(5) non-discrimination in employment.

 ◦ Globalization is seen as an enemy of this struggle. It is feared that globalization will not only stand in
way of fuller achievement of workers’ rights but will actually cause a regression of rights by inducing
governments to lower the level of labour standards.

The fear is because of the force of competition due to globalization. The countries compete with each other in
order to survive & prosper. Firstly, to cut down on costs & keep prices competitive, and secondly to attract foreign
investors

2. Fiscal Powers and Human Rights Obligations

◦ Globalization involves tariff reduction which further has consequences that affects the government
budgets. In most developing countries, the governments rely heavily on tariffs on internationally traded
goods and, in some cases, it is the most important source of budgetary revenue. Trade liberalization
entails considerable loss of revenue for the government. Also, Governments may be tempted to reduce
taxes on the income earned by foreign capital in order to induce foreign investors to come to their
shores in preference to other countries.

◦ This loss of expenditure may constrain govt.’s ability to undertake essential expenditures that directly or
indirectly help realize the human rights of the people, by ensuring better access to food, health,
education, and so on; and also investing in these rights for the upliftment of the weaker sections.

3.Changes in Structure and Rights of Poor and weaker sectio

Integration with the global economy brings about structural changes within an economy. It opens new
opportunities for enhancing employment and income and also closes down/diminishes many existing means of
livelihood. The opportunities open up in those activities in which a country has comparative advantage and
diminish in those in which it has comparative disadvantage. Gains and losses may not be distributed evenly
across the population.

Evidence suggests that losses will generally be felt disproportionately more by the weaker segments of the
society. They would suffer more simply because they lack the flexibility to cope with the changing winds of
market forces owing to the various impediments they face in accessing new skills and resources. There is a real
danger that their human rights such as the rights to food, work, health, and shelter get affected due to this loss.

This is one reason for concern regarding the compatibility of globalization with human rights.

International Human Rights Instruments and Globalization

◦ Like the labour standards laid down by the ILO, the international human rights law including the UDHR
and the two covenants are important instruments that protect the human rights and provide for equality
of laws and equal protection of laws.

◦ The UDHR closes with a firm statement that, “[n]othing in this Declaration may be interpreted as
implying for any [s]tate, group or person any right to engage in any activity or to perform any act aimed
at the destruction of any of the rights and freedoms set forth herein.”

◦ Human rights law also imposes individual responsibility for some human rights violations and other
acts designated as crimes under international law.

◦ Article 28 of the UDHR recognizes that, “[e]veryone is entitled to a social and international order in
which the rights and freedoms set for in th[e] Declaration can be fully realized.”

◦ From this may emerge the principle that respect for human rights applies to all societal relations locally,
regionally, and globally.

◦ With globalization, the International Monetary Fund (IMF) and the World Bank have received
considerable attention because of the substantial impact they can have on human rights, although both
initially resisted taking human rights into account in their operations. The General Counsel of the World
Bank at first rejected the idea that the Bank should take into account human rights concerns, arguing a
need to honor the Bank’s Charter “and to respect the specialisation of different international
organizations.” Recently, the World Bank has begun to consider the human dimension of its work and it
has declared that the alleviation of poverty is its main objective. The Bank has also been active in
designing mechanisms to address the issue of the debt burden, culminating in the highly indebted poor
countries (HIPC) initiative.
 ◦ These efforts mark a shift from the “Washington Consensus” methods of structural adjustment and
economic liberalization that were applied in the 1980s and early 1990s to the macroeconomic policies of
developing countries.

◦ Human rights activists responded by demanding greater attention to human rights and a social safety
net to meet the basic needs of individuals.

Positive effects of Globalization on Human Rights

◦ There is considerable debate over the question of whether or not globalization is good for human rights.

◦ One view is that globalization enhances human rights, leading to economic benefits and political
freedoms. 

◦ Globalization, indirectly enhances the attainment of economic conditions necessary for economic and
social rights.

◦ It is believed that market mechanisms and liberalized trade will lead to an improvement in the living
standards of all people. Ease of movement of people, goods, and services are enhanced. This could
lead to faster growth and more rights.

◦ Trade has the power to create opportunities and support livelihoods.

◦ Production for export can generate income, employment, and the foreign exchange which poor
countries need for their development.

Ill-effects of Globalization on Human Rights

◦ The local decision-making and democratic participation are undermined when multinational companies,
the World Bank, and the IMF set national economic and social policies.

◦ The unrestricted market forces threaten economic, social, and cultural rights such as the right to health,
especially when structural adjustment policies reduce public expenditures for health and education.

◦ Increases unemployment, poverty, and the marginalization of vulnerable groups.

◦ Globalization is leading to greater problems of state capacity to comply with human rights obligations,
particularly economic, social, and cultural rights.

◦ Concentration of wealth in the hands of multinational enterprises is greater than the wealth of many
countries.

◦ Globalization is a particular issue for women, because they often bear a disproportionate burden of
poverty. Investors have demonstrated a preference for women in the “soft” industries such as apparel,
shoe and toy-making, data-processing, and semi-conductor assembling—industries that require
unskilled to semi-skilled labor, leading women to bear the disproportionate weight of the constraints
introduced by globalization.

◦ States feel compelled to ease labor standards, modify tax regulations, and relax other standards to
attract foreign investment.

◦ Another impact observed in many countries is a shift from companies hiring permanent employees with
job security and benefits, to the use of temporary workers lacking health care, retirement benefits,
collective bargaining arrangements, and other security available to the permanent work force.

◦ As with other negative impacts of globalization, this one also has more severe impacts on women,
minorities, and migrant workers. States often do not include migrant workers in their labor standards,
leaving women particularly vulnerable. Overall, only 20% of the world’s workers have adequate social
protection. In addition, some 3000 people a day die from work-related accidents or disease.

◦ Role of Law in protection of HRs in globalizing world

◦ Globalization has led to an increased concern about the responsibility of all international actors to
ensure the promotion and protection of human rights.

◦ The Committee on Economic, Social and Cultural Rights (CESCR) has emphasized that, “the realms of
trade, finance and investment are in no way exempt from these general principles [on respect for human
 rights] and that international organizations with specific responsibilities in those areas should play a
positive and constructive role in relation to human rights.”

◦ The state responsibility for failing to control the actions of private parties has received considerable
attention in the case law of international tribunals and the work of the U.N. For instance Trail Smelter
Arbitration, the Corfu Channel Case, and the U.N. Survey of International Law all state the same
principle that every state has obligation not to allow knowingly its territory to be used contrary to the
rights of other states.

International law is increasingly regulating non-state behavior directly. The U.N. Security Council has expressed
its concern about the role of illicit diamond trade supporting the conflict in Sierra Leone and called upon
international diamond industry to cooperate on a ban on all rough diamonds from Sierra Leone. The World
Diamond Congress, meeting in 2000 in Antwerp, proposed the creation of an international diamond council made
up of producers, manufacturers, traders, governments, and international organizations to oversee a new system
to verify the provenance of rough diamonds

Contemporary Global Realities are the challenges to Global Justice:

 Role of International Institutions

 International human rights

Climate Crisis

Role of International Institutions

◦ According to Prof. Chimni (his paper titled- International Institutions Today: an Imperial Global State in
the Making), a number of international institutions-economic, social and political, have been
established/re-positioned at the initiative of the first world. The international institutions constitute a
nascent global state whose function is to realise the interests of transnational capital and powerful
states in the international system to the disadvantage of third world states and peoples. The evolving
global state formation may therefore be described as having an imperial character.

◦ The international institutions exist in all areas of international relations including economic, social and
political – this limits the autonomy of sovereign states. This loss of autonomy has serious consequences
for third world states and peoples.

To elaborate, the sovereign economic decision-making has been transferred from states to IEIs (having effective
enforcement machinery), i.e. WTO, IMF and the World Bank

◦ UN as an international organization has also impacted the sovereignty of state, through the phenomena
of armed humanitarian intervention and the doctrine of pre-emptive use of force.

◦ The neo-realist view is that international institutions are simply reflections or embodiments of state
power and interests whereas the neo-liberal view is that the international institutions have an
independent role in resolving collective action problems.

According to Professor Chimni, the class which exercises the greatest influence in international institutions today,
and on the emerging global state, is that of transnational fractions of the national capitalist class in advanced
capitalist countries with the now ascendant transnational fractions in the third world playing the role of junior
partners. The transnational capitalist class (TCC) comprises of the owners of transnational capital that is the
group that owns the leading worldwide means of production as embodied in transnational corporations and
private financial institutions. The transnational capitalist class culture is lived and produced in the first world by a
network of high-profile corporate executives, bankers, brokers, financial management experts, media managers,
academics and bureaucrats using the most modern means of communications to create a world of ideas that has
material force

◦ The international institution like the WTO has eroded the sovereignty of states. In areas such as
agriculture, IPR and regulation of foreign investment and services, sovereign powers have been
relocated from third world states and peoples to WTO through adoption of uniform global standards. For
example, be it Nepal or the US or Rwanda or Japan, the same IPR laws are to be adopted by all under
the TRIPS.
 ◦ Through progressive liberalization, the sectors ranging from banking and insurance to other sectors like
education and health in the third world has been invaded by transnational capital. The third world
countries are under pressure to liberalise without fully knowing the consequences of doing so.

◦ The WTO agreements are enforced through a compulsory dispute settlement mechanism backed by an
effective system of sanction. Although, the third world countries were given more time to bring their
domestic regimes into compliance with the WTO rules, but there is no substantial special and differential
treatment for them.

◦ Further, apart from the loss of economic sovereignty through WTO rules and regulations, the third world
countries have to deal with the international financial institutions that encroach on other sovereign areas
of national economic life through prescription of conditionalities that are to be complied with if a state is
to receive loans. These conditionalities include imposing goals of liberalization, privatization and
deregulation in the third world states.

◦ The loss of monitory sovereignty, as the East Asian crisis showed, has serious fallout for the ordinary
people in the third world. The nightmare of unemployment has hit suddenly and the standards of living is
substantially been eroded.

◦ The international social institutions, in the field of human rights and environment have also been
established which limit the autonomy of third world states and people to adopt social policies which suit
their individual cultures and stages of development. Rather they create social conditions for globalized
capitalism. The social international institutions have potential for a progressive transformation of the
global social space, but their limited mandate, authority and resources act as important constraint.

International human rights law and institutions

◦ After 1945, many international human rights organisations have been set up,. The international human
rights organisations include UN bodies like ECOSOC, UNDP, UNHRC, ILO, UNESCO, UNHCR, etc;
and expert bodies established by UN organs like human rights committee, committee on economic
social and cultural rights, committee on the elimination of racial discrimination, committee on the
elimination of discrimination against women, committee against torture, committee on the rights of the
child and others. The is an expansion in activities of international human rights organisations.

◦ The human rights law and organisations have in many ways empowered progressive social forces in
third world countries. But rights cannot be higher than economic structure of society and its cultural
development is conditioned thereby. Since international human rights organisations focus more on civil
& political rights, they lack the mandate, resources and political backing to seriously influence outcomes
in the realm of economic & social rights as they have had only a minimal impact on the welfare of
ordinary people in the third world.

◦ The TCC and the northern states have made the language of human rights their own.

International environmental law and institutions

In the field of environment, a number of UN specialized agencies and other international organisations with
competence over environmental matters have become important institutions of global and regional environmental
governance. The supervisory bodies, conferences of the parties and commissions established by environmental
treaties have become equally important. International institutions with mandate to protect the environment include
the UNEP, WTO, commission on sustainable development, International Maritime organization, World Bank,
international atomic energy agency, UNESCO, etc.

◦ The international environment laws and institutions promote and protect the global environment, but it is
also true that in the absence of an effective implementation of principle of common but
differentiated responsibility based on the premise of the historic responsibility of the north in causing
environmental damage, the operation of international environmental institutions and laws involve the
redistribution of property rights in favour of the advanced capitalist countries.

◦ Further when these countries developed, global private rights were granted to polluters; now developing
countries are asked to agree to a redistribution of those property rights without compensation for already
depleted resources. Also it cannot be ignored that environmental laws that are troublesome to the
operation of transnational capital are often disregarded, the best example being the Kyoto protocol.

Challenges being faced by Third World:

 ◦ Decision making being re-located from third world states to international institutions and it is marked by
an absence of transparency and effective participation.

◦ The international institutions remain unaccountable in international law to those who are affected by
their acts of omission and commission.

◦ The international institutions seek to sustain and legitimize the state of affairs by discrediting alternative
frameworks of development.

◦ There is an absence of effective participation through negotiations by the third world states in
international institutions that lead to the adoption of relevant treaty regimes.

◦ There is the dominant voice of the north in the decision making in international financial institutions.

◦ The UN Security Council is a reflection of undemocratic organ of the UN.

◦ Hence, the international institutions lack transparency, democratic participation and accountability.

Reforms/ Solution

◦ Need to change the mindset that the policies and processes which are good for the transnational
capitalist class is also good for third world peoples. The legitimacy/Justice of rules and policies of
international institutions should be judged by the impact they have on the working class, landless/poor
peasants, women and other marginal sections of people in the third world.
Global citizenship, to a certain extent can help to extend the democracy beyond the nation state. The
idea is to create an international institution which would have a basis of authority separate from that
which has been derived from the consent of states. Falk and Strauss have called for the creation of an
elected Global Parliamentary Assembly (GPA) modelled on European Parliament.

◦ Need to establish international negotiating and decision-making processes that allow meaningful
participation of third world states. There is an urgent need to democratize the weighted decision-making
process in the IMF and the World Bank as they have come to exercise unprecedented influence on the
lives of ordinary people in the third world. There is also a need to democratize the UN Security Council
by increasing the number of permanent members and transparency in decision making.

◦ Need to hold international institutions and their officials responsible in international law.

◦ The international human rights organisations must be called upon to raise the concerns of the marginal
and oppressed peoples of the third world. The authority, mandate and resources of international human
rights organisations concerned with economic and social rights need to be strengthened so that they
can intervene more effectively in realizing the rights of individuals.

◦ There is a need to make transnational corporations accountable.

◦ Finally, these changes can be brought about by a powerful global social movement that calls for the
requisite changes in the rules and structure of international institutions. These movements can be
brought about by alliances, new social movements, consumer movements, community initiatives and
even spontaneous resistance,. The global dissent movement should strive to establish networks to
create counter hegemonic values and spaces.