Law And Social Justice Essay
The issues of colonialism and imperialism are not new to international law but have appeared with varying degrees of prominence in legal discussions and practices related to the development of this area of the law over many years. International law has continued to facilitate global inequality in recent years for this reason. There are many principles examined in law and social justice concerned with the relationship between colonialism, international law and global inequality including equality, fairness, and inclusion. These principles are fundamental in law and justice though historically have not always been, and in cases still aren’t, embedded in international law.
International law, as we know it today, can be traced back to early theorists who were deeply involved with the principles of Natural law as the basis of their philosophies. These philosophies were, to some degree sympathetic to indigenous peoples’ existence as self-determining societies. Francisco de Vitoria, a leading figure regarding the emergence of international law, maintained that Indian people should be regarded as nations with legitimate interests as he believed they were not of ‘unsound mind’. The recognition of the Indians as people with rights, whilst appears to support the Justice principle of inclusion, proved to bind the natives to a Natural Law, which despite its claimed universality, was derived from the idealised European identity.
One can see that although international law was founded on the universal law of nature, which meant that non-Europeans must be seen as equal to Europeans and included within its reach, Indian nations were not viewed as equal to Christian states in the Western World. Whilst Vitoria advocated the belief that the Indians did possess some rights, even he was of the opinion that war against indigenous peoples could be justified. According to Antony Anghie, Vitoria’s work demonstrates how an apparently humanitarian approach of including the Indians in International law can then be turned into a basis for sanctioning and transforming them into Europeans. International law shed its naturalist skin as it changed to a state-based system encouraged by European states and built on European ideas, much to the detriment of indigenous peoples.
The emergence of the modern system of states in Europe took a step farther away from formal equality and toward colonialism. Along with the rise of the modern state came a marked evolution in naturalist thinking. Positive jurists developed a series of doctrines, which used racial and cultural criteria to decree states civilised and sovereign and to decree other states uncivilised and therefore non-sovereign, whilst theorists transformed the concept of natural law from a universal moral code into a regime made up of the natural rights of individuals and the natural rights of states, which came to be the Law of Nations as defined by Emmerich de Vattel. He adhered to the general principle of natural law and its presumptive universality though he viewed it as having distinct consequences when applied to states as opposed to individuals.
The concept of nationhood emerged in Europe to acknowledge politically conscious states that were consolidated by monarchal rule and bound by common cultural, sociological and ethnic characteristics. States were believed to be free, independent, and equal. This idea of the state of Sovereignty developed into a central perception of international law. Under Vattel’s dictum, indigenous peoples could not enjoy their rights under the ‘Law of Nations’ unless they qualified as nation states. The concept of the nation state was based on European models of political and social organization, thus indigenous peoples, who typically had been organized by tribal or kinship ties would not benefit. Non-European societies were banished from the realm of International law and as they were lacking legal international power, they were reduced to objects of conquest and exploitation. This goes against the central principles of Justice mentioned previously; equality, fairness and inclusion.
publicist John Westlake provided one of the most complete justifications for the categorical exclusion of native peoples as subjects of international law. He made distinctions between civilised and uncivilised human behaviour, with indigenous peoples falling in the latter category. He deemed the European lifestyle and form of government the test of civilisation and this rationalization can be seen as a confession that international law was an instrument of the “white” and powerful colonizer.
International law abandoned indigenous peoples as political bodies with rights under international law yielding only to the forces of colonization. Legal doctrines were used by Europeans to account for the acquisition of sovereignty over non-Europeans. In other scenarios, imperial powers claimed that native chiefs entered into treaties with sovereign states, which resulted in European control over indigenous territory and peoples. Anghie points out that the ability of the native chiefs to enter into such a treaty was paradoxical seeing as they would have been regarded to be lacking legal status. International lawyers of the time had to allow the natives quasi-sovereignty, for the purpose of transferring sovereign and property rights to European, colonial powers It is clear that Europeans used international law as a tool to colonize foreign lands..
Many of the legal doctrines used at this time dealt not only with the relationship between European and non-European states but also between Western states looking to acquire title over foreign territories. The most obvious example of this was the Berlin Conference of 1884-85, where the great European powers of that era gathered in Berlin and decided how Africa was to be divided amongst them. The division Africa, which occurred with no concern for the political system already operating in Africa at the time, let alone the input of a single African, created enduring problems.
The disastrous effects of World War 1 marked the beginning of change in International law and relations, the most important being the change in the colonial nature of international law. The imperialistic nature of the international system was both recognized and criticised by scholars during the interwar period. The international law that governed the 19th century was abandoned for legitimizing colonial exploitation and efforts were made, by establishing the Mandate System, towards creating a more formally equal international system although they were small with little to no move away from the imperialistic nature with which we are familiar. In fact, the Mandate System would have a detrimental effect on the Third world for years to come, only expanding the unequal divide between European and non-European states.
The implication of the mandate system, established in the Covenant of the League of Nations, was one of the first steps towards giving indigenous peoples self-determination although it has been argued that it merely developed into an internationally sanctioned form of colonialism. The Mandate system was a regime created for the purpose of governing territories that had been colonized by Germany or the Ottoman Empire prior to WW1. Rather than distribute them among the victorious powers, they were placed under a system of international tutelage. The aim of the system was to protect the interests of backward people whilst guiding them to be developed, self-determining countries. This aim was to be achieved by appointing certain states as administrators of these territories on behalf of the League of Nations. This idea that certain territories should be administered was nothing new; looking back to the Berlin conference, a system not dissimilar was proposed regarding the administration of the Congo.
Whilst the system sought to provide protection for the Middle East, Africa and the Pacific, class C Mandates were still treated as poorly as colonies had been only with a more palatable image, which benefitted Western Powers. The very concept of a mandate was a colonial power ruling territory with the goal of eventually turning it over to self-rule. Whilst Woodrow Wilson may have intended to eliminate the inequality that had been stirred up, by implementing this system he created a veiled form of colonialism, inequality, and exclusion, which managed to embed itself further into international law. The system has been criticized and it has been highlighted that even a brief examination of it would result in the conclusion that it was created to be completely consistent with economic inferiority between European and non-European states.
Whilst the system worked towards the creation of sovereign states, the government and the sovereignty of the developing states were created with the intentions of furthering the intentions of the West. Administrators wanted to establish the Mandates as stable trading partners and often used the system to secure their interests in other parts of the world. This became evident when Britain, before ceasing its mandate with Iraq, secured a 75-year concession granted by the Iraq Petroleum Company. The fact that the Mandate system merely masked imperialism delegitimized it and created tension and inequalities between European and non-European states.
The impact of the Mandate system is one that has lead to huge inequalities still to this day. The international system became the legal basis for a number of International Financial Institutions, a threat to global equality itself, which I will touch on later. This new form of colonial administration disguised as the promotion of ‘well being and development’, became the legitimizing foundation of modern development institutions, which are major contributors to current global inequality. After all, this system established an authority for collecting data regarding the political and economical state of a country and then constructing a universal order by which inferior countries were to be assessed and later instructed on how to achieve the end goal of self-determination.
There is increasing argument that globalization, in the way it has been shaped by the imperialistic history of international law, has magnified the inequality between the Western and Third world. The excuse of ‘good governance’ has been used by the West for intervening in the internal affairs of Third World states, to their detriment, in order to economically benefit themselves. In practice, good governance is an idea developed, on an international scale, in relation to Third World states as they were the countries that lacked governance. Attempts by the West to introduce ‘good governance’ in the Third World are aimed at reintroducing a series of institutions and principles, which have been developed and perfected in the West, into the Third World. Anghie argues that this initiative simply duplicates the civilising mission.
Looking back to the time of Vitoria and assessing some of his statements together, one of the crucial functions of government was to ensure that international commerce would be furthered. We can see that since the origins of international law, the idea of good government has been inextricably linked with commerce and the West’s right to trade, which authorizes the presence of Europeans in non-European territories. Commerce and governance are not just connected but rather identical. The governance of Third World states was assessed primarily on whether Europeans were able to trade there. If this was not possible then protectorate arrangements and conquest could rectify the situation. Going back to the Berlin conference, commerce was determined by Bismarck as an important way of spreading civilisation. This meant that the expansion of European commerce was seen as a way of furthering humanitarian goals.
This history of governance exerts an enduring and powerful pressure on the current idea of governance. The relationship now between globalization and governance can be seen as parallel to that of Vitoria’s time. Governance is now designed to provide the political institutions that will enable the furtherance of globalization.
Given the global impact of human rights and its goal to help the people on a personal level, it is no surprise that good governance should be linked to it. Following the end of the Cold War in the late 1900s, Western powers wanted to universalise a liberal democratic political system by developing models of democratic and legitimate governance through international human rights law. They argued that making liberal democracy a universal reality was a matter of pressing importance and they would use international human rights law to achieve it. This area of the law, now developed and disguised by concepts of democratic or legitimate governance was to be much more intrusive than had previously been the case. Governance, acted upon by incredibly powerful International Financial Institutions (IFIs) has had a profound impact regarding inequality between the West and the Third World.
IFIs such as the World Bank and the International Monetary Fund (IMF) provide loans to Third World states, which are then subject to conditionalities given by the institutions. This system of IFI control has been likened to the Mandate system discussed earlier. These IFIs have become managers of economic policies in the Third World. In exchange for financial assistance, they require developing countries to reconstruct their economies through structural adjustment programmes. These involve things like ‘reduction of government spending, liberalisation of the economy, privatisation and devaluation’. These programmes are usually accompanied by terrible consequences for the most disadvantaged in the recipient country including financial cuts to healthcare, the increase in price of food and fuel as well as increasing unemployment rates. It is clear that international law enabled institutions such as World Bank and IMF, which are for the most part controlled by the West, to create huge inequalities between the West and the Third World by allowing them take over the economies of states, resulting in a negative impact on the peoples in those states, in the disguise of “Good Governance”. By asserting that economic development of a country depends on good governance and therefore the political system of a country, IFIs can justify formulating a completely new set of rules regarding the economic and political institutions for a recipient state whilst claiming that they’re necessary for development. The IFIs have, in recent years, used their huge influence to transform Third World societies in such a way that satisfies the interests of the rich, therefore facilitating global inequality.
Imperialism and colonialism have been linked to international law from its origins; the philosophies of Natural law, to the neo-colonial period and the implication of the mandate system, to present day globalization. This link has resulted in the Third World being economically and politically controlled by legal institutions, largely controlled by developed countries, and therefore completely unequal to and excluded by the West.