Reading RP Anand in the Post-Colony

Professor RP Anand analysed the birth of new states and their theoretical and functional inclusion in the post-UN world. The 1947 Indian independence afforded Indian lawyers a choice between Nehruvian internationalism and Judge Pal’s Tokyo dissent. Essentially, Anand preferred state interest over cultural differences as the currency of international law while celebrating the UN Charter, the International Court of Justice, and the UN Convention of the Law of Sea as the achievements of the mankind. Anand saw the rejection of international law as synonymous with power politics. While optimistic, his universalism engendered a Western anti-thesis that an Asian approach to international law, if any, was otiose. Subsequently, post-colonial scholars responded with a synthesis that brought colonialism from periphery to the centre of international legal theory.

The International Court of Justice During the Battle for International Law (1955–1975)

This chapter investigates the role of the International Court of Justice (ICJ) during the battle for international law circa the years of 1955–1975. It first draws attention to newly independent states that saw the Court in its role of reinforcing international law’s colonial imprints. The chapter then focuses on the Court’s captivating highpoint during the battle for international law: its 1962 and 1966 Judgments in South West Africa, and the jarring 1966 decision which, in the eyes of many states, presented the ICJ as a ‘white man’s court’ in a white man’s world. The chapter then shows the effects of the 1966 decision in judicial elections and the quest to change the composition of the bench. Finally, the chapter argues that the present inquiry serves as a vivid reminder that international law and its institutions are the product of a veritable struggle, then as now.

The Developmental State

The battle for international law during the era of decolonization in the mid-twentieth century was to a large extent a battle fought over the nature, function and objectives of the state—above all, over their relationship to the idea of ‘development’. A particular normative and institutional formation resulted from this battle: the ‘developmental state’, the impact of which on (in)dependence in the South was and continues to be profound. However, the ‘developmental state’ did not spring ready-made out of nowhere. On the contrary, using Latin America’s much earlier experience of colonialism, decolonization and independent statehood as a starting-point, this chapter draws attention to the long and complex process through which the developmental state’s most important elements emerged, defining what was thinkable and doable there and elsewhere in the post-colonial world.

Charles Chaumont’s Third-World International Legal Theory

This contribution explores the works and biography of Charles Chaumont, who influenced an important group of third-world scholars, among them Mohammed Bedjaoui. These scholars were shaped by the neo-Marxist analysis of international legal structures developed by the Reims school in international law headed by Chaumont himself. Chaumont published on decolonization issues and methodologically sought to replace Scelle’s interwar idealism with a highly realistic analysis of the relationship between the interests of Western economic elites and prevailing international legal structures. While using neo-Marxist insights in his analysis Chaumont did not succumb to a determinist perspective on law. Rather, this chapter portrays him as the father of a radical critique of the function of law in exploitative North-South relations both before and after decolonization.

The Common Heritage of Mankind

In the decolonization era, one of the battles for international law was over the seabed and its mineral resources, with intensive debates about the ownership of these resources and the conditions under which they could be exploited. At its nexus was the principle of common heritage of mankind (CHM). This chapter relates the protracted legal tussle around the CHM principle. It traces how the terms of the battle changed over time and ‘annotates’ the battle by reference to a few key issues—the precise basis for developing states’ interest in seabed resources; the antinomies of the CHM principle; and the Cold War’s effect upon the negotiations. It highlights how economic considerations remained material to the negotiations; the ideological defeat for developing states; and the seabed’s role in the NIEO movement as a whole.

Literal ‘Decolonization’

This chapter explores the role of African scholars in the context of the battle for international law. It focuses on scholars who were less prominent than Taslim O Elias or Mohammed Bedjaoui, but who also played an important role in internal African debates on post-colonial international law. It touches on the contextual nature of decolonization and the various viewpoints established by African scholars and provides a more nuanced account of African international legal scholarship. In taking this direction, the chapter thus attempts, within the scholarship and literature of decolonization, to unearth original voices that have largely been forgotten outside of Africa.

Picking Battles

Race is one of the more ubiquitous, yet least explored, shifts in twentieth-century international law. From law that was founded in key areas and concepts on racial distinctions, international law quickly came to denounce various manifestations of race theories and racial discrimination. The establishment of the UN reflected a racialized understanding of the international society assumptions of the League of Nations mandate system. The 1948 Universal Declaration addressed entitlement to human rights without distinction of race, yet the Genocide Convention extended protection to racial (identity of) minority groups. In South Africa, race policies provided both the impetus and multiple occasions for formulating claims about a new, de-racialized international law from 1946 onwards. At these struggles against apartheid, binary political confrontations could take form as competing visions of international law, both old and new. This chapter charts the sites of contestation over apartheid and its effects on international law.

Rival Worlds and the Place of the Corporation in International Law

Struggles ‘over’ international law in the period between 1955 and 1974 should be understood not as a battle to control a pre-existing international law, but as marking a series of encounters between rival practices of world-making, each travelling with rival accounts of international law. The question of how to conceptualize the corporation, and its proper relation to law and state, was a key element of those rival accounts. In this chapter, we trace the (successful) effort to establish the UN Commission on Transnational Corporations, and the (unsuccessful) attempt to draft a binding convention. In this telling institutional moment, the struggle over the proper understanding of the relationship between international law, the state, and the corporation, which travels was also a struggle over the authorship of worlds, and the authority to govern them. Paying attention to such practices shows us that the battle lines were drawn in ways that upset the comfortable rehearsal of a North-South divide. Anti-colonial struggles, the incipient ‘Cold War’, the invention of ‘Development’, and the implementation of a (Marshall) plan to (re)construct Europe produced unexpected commonalities that included coalitions across North and South and instructive alliances between ‘public’ and ‘private’ actors. Slowing down our study of this moment reveals that much of what was at stake then remains so today, and that other worlds are still possible.

Epilogue

The chapters in this volume give a many-sided, deep, and wide image of the legal aspects of the second decolonization, a time that many of us still carry in living memory. The generation that came to adulthood in the late 1960s through the mid-1970s is approaching the end of professional careers, taking early retirement, others working, especially academics, perhaps still some number of years. That generation, to which I of course belong, grew up as professional men and women surrounded by confrontations about conflicts that mostly took place in what we learned to call the third world over self-determination, wars of liberation, and the New International Economic Order (NIEO), Biafra, Vietnam, the Six-Day War, and the first oil crisis; often, we took sides, sometimes emphatically. Although many of these events took place far away from where we lived and worked, they were of great interest, and wholly absorbed some of us. These were politicized years, even hyper-political years—good training ground for later careers. From that perspective—half-personal, half-professional—I reflect on what the editors of this book have chosen to call the ‘battle’ (although I resist the military tone of the metaphor)....

The Battle Continues

In the years following decolonization the divisions between the United States and Latin America became universalized when the newly independent states of Africa and Asia espoused the Calvo Doctrine and the European states, seeking to retain control over their former colonies, adopted the externalization of the foreign investment process. In foreign investment protection decolonization did not destroy the hegemonic structures of imperial international law; the same objectives were achieved more indirectly. International law remains the purveyor of poverty and the instrument of small interest groups in alliance with the elite of the developing world. After decolonization these same objectives continued via more sophisticated structures constructed with rules that overtly seemed justifiable, but covertly ensured an exploitative system. This chapter explores the period between 1955–1975 in which the struggle was between the insulation and externalization of the process and when its subjection to host state sovereignty became clearly entrenched.