American University International Law Review

Volume 22 | Issue 2 Article 1

2007

A Just World Under Law: A View From the South

B.S. Chimni

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Recommended Citation
Chimni, B.S. "A Just World Under Law: A View From the South." American University International Law Review 22, no. 2 (2007):
199-220.

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 A JUST WORLD UNDER LAW: A VIEW
FROM THE SOUTH*

B.S. CHIMNI*"

IN TRO DU C TIO N ........................................................................... 199

I.THE GROTIAN M OM ENT ......................................................... 201
II.CHANGING STRUCTURE OF INTERNATIONAL LAW ...... 203
III.THE EMERGING GLOBAL STATE AND SOVEREIGN
S T A T E S ................................................................................. 207
A. EMERGENCE OF A NASCENT GLOBAL STATE ................... 207
B. ROLE OF THE TERRITORIAL STATE ................... 209
IV.TWO INDIAS AND TWO WORLDS ....................................... 210
V.GLOBAL JUSTICE IN THE ERA OF TRANSITION .............. 212
A. GLOBAL NOT DOMESTIC JUSTICE .................................... 212
B . CONCEPT OF JUSTICE ....................................................... 213
1. Claimsfor Recognition.............................................. 215
2. Claimsfor Redistribution .......................................... 216
3. Claimsfor Representation......................................... 217
C O N C L U SIO N ............................................................................... 2 19

INTRODUCTION
Good evening. I wish to begin by thanking the American Society
of International Law ("ASIL") and the International Legal Studies
Program of American University Washington College of Law for
inviting me to deliver the Eighth Annual Grotius Lecture. I consider
it a special honor and privilege, for it is the auspicious occasion of

Delivered to the Annual Meeting of the American Society of International

Law,Vice
Eighth Annual Grotius
Chancellor, West Lecture
Bengal Series, Washington,
National UniversityDC,ofMarch 29, 2006.
Juridical Sciences,
Kolkata, India.

199
200 AM. U. INT'L L. REV. [22:199

celebrating a hundred years of the American Society of International

Law.'
In my lecture today I address the subject of "A Just World Under
Law," the theme for this year's ASIL meeting, from a TWAIL, that
is, a third world approach to international law perspective. The
TWAIL perspective is advanced by a group of scholars who share
the common minimum aspiration of looking at the history, structure,
and process of international law and institutions from the standpoint
of the peoples of the third world, in particular its poor and marginal
sections.
A central question today from a TWAIL perspective is how to
create a global law of welfare. At present, international law is unable
to seriously respond to the expectations of a vast majority of the
peoples of the third world both in terms of maintaining global order
and, despite its exponential growth in recent years, promoting global
justice. On the one hand, contemporary international law is unable to
prevent the unlawful use of force against third world states and
peoples, and on the other hand, global poverty and inequality has
become a scourge of our times and ranks, according to Nelson
Mandela, "alongside slavery and apartheid as social evils."3
I will argue that the international law that has emerged in the last
three decades, in particular since the end of the Cold War, has been
shaped by an emerging transnational capitalist class to realize its
interests. The prescription and enforcement of these international
laws has required the construction of a nascent Global State that is
constituted by a range of international institutions and global social

1. Comprised of four thousand members from over one hundred countries,

ASIL's mission is "to foster the study of international law and to promote the
establishment and maintenance of international relations on the basis of law and
justice." ASIL-Overview, http://asil.org/aboutasil/index.html (last visited Oct. 7,
2006).
2. See Antony Anghie & B.S. Chimni, Third World Approaches to
InternationalLaw and Individual Responsibility in Internal Conflicts, 2 CHINESE J.
INT'L LAW 77, 79 (2003) (recognizing that "TWAIL scholars seek to transform
international law from being a language of oppression to a language of
emancipation" for third world communities).
3. U.N. DEVELOPMENT PROGRAMME [UNDP], HUMAN DEVELOPMENT
REPORT 2005: INTERNATIONAL COOPERATION AT A CROSSROADS: AID, TRADE AND
SECURITY IN AN UNEQUAL WORLD 4 (2005), available at
http://hdr.undp.org/reports/global/2005.
2007] A JUST WORLD UNDER LA W

processes, and is backed by the commanding monopoly of Western

states over the use of organized force. The emergence of a nascent
Global State has meant that a global class divide is overlaying the
North-South Divide creating a complex map of global fractures. I
examine some of these developments and touch upon the possible
consequences by looking at the intricate case of India. I then go on to
explore the idea of global justice to identify some principles and
practices that will help establish a global law of welfare.
Let me however begin by noting that the task that confronts
international lawyers today is not very different from that which
Hugo Grotius had to perform in his day.4

I. THE GROTIAN MOMENT

We live today in a time of profound transition. We are moving
from a sovereign state system to a global system of governance
presided over by, as I contend, an emerging Global State. Hugo
Grotius also lived in a time of transition, in his case from a feudal to
a bourgeois world order.' The demise of the feudal system, we all
6
know, led to the emergence of a sovereign state system in Europe. If
Grotius is often described as the founder of international law, it is
because he grasped the essence of this transition and constructed an
international law for the age of sovereign states that combined the
values of reason and realism.7 The Grotian task awaits us all today in

4. See Richard Falk, The Grotian Quest, in INTERNATIONAL LAW: A

CONTEMPORARY PERSPECTIVE 36, 36-42 (Richard Falk et al. eds., 1985)
(explaining that Grotius, a Dutchman who lived in the late sixteenth and early
seventeenth centuries, "attempted, whether wittingly or not . . . to provide the
foundation for a new normative order in international society"); Christopher
Weeramantry, Opening Tribute to Hugo Grotius, 14 AM. U. INT'L L. REV. 1515,
1516-20 (observing that Grotius envisioned a legal order that "derived its rationale
and moral strength from the parallel relationship between states, rather than a
vertical relationship between states and a higher order").
5. See Falk, supra note 4, at 37-38 (noting that Grotius lived in an era
characterized by religious and political turmoil due to the decline of the feudal
system and the church's political power, and the rise of monarchical power and the
sovereign nation state).
6. See Hersch Lauterpacht, The Grotian Tradition in InternationalLaw, in
INTERNATIONAL LAW: A CONTEMPORARY PERSPECTIVE, supra note 4, at 10, 14.
7. The essence of the Grotian quest is, as Richard Falk has reminded us, that
"it is normatively grounded and future oriented, synthesizes old and new, and
cherishes continuities while welcoming discontinuities." Falk, supra note 4, at 41.
202 AM. U.INT'L L. REV. [22:199

a period when revolutionary changes are visiting the international

system.
The past here can be a guide to the future in terms of what can go
wrong. A central feature of the Grotian world of international law
was, as Hersch Lauterpacht noted, "the subjection of the totality of
international relations to the rule of law." 8 But the meaning of rule
of law varied depending on whether you were a fully sovereign state
or a state that had parted with a slice of its sovereignty. The historian
Anthony Pagden has pointed out how Grotius insisted that
"[s]overeignty beyond Europe, unlike sovereignty within Europe,
was... very much a divisible notion and was to remain so within all
subsequent conceptions" of relationship with the non-Western
world. 9 Grotius was a genius, but also a product of his times. It is
therefore useful to remind ourselves here that Grotius was, to use the
words of one scholar, "among the architects of early modern colonial
rule."' 0

8. Lauterpacht, supra note 6, at 30.

9. Anthony Pagden, The Empire's New Clothes: From Empire to Federation,
Yesterday and Today, 12 COMMON KNOWLEDGE 36, 41 (2006).
10. Peter Borschberg, Hugo Grotius' Theory of Trans-Oceanic Trade
Regulation: Revisiting Mare Liberum (1609) 34 (Inst. of Int'l Law & Justice,
Working Paper No. 2005/14, 2005), available at
http://www.iilj.org/papers/documents/2005.14BorschbergI001.pdf. According to
Borchberg:
The divisibility of sovereignty in Grotius has captured the imagination of
several researchers and is recognized by a growing number of scholars,
including the present author, to have significantly strengthened the legal
foundations for European colonial rule in Asia and the New World. All
peoples are originally free; they are even free to irreversibly sign away their
liberty of choice and sovereign rights at the stroke of a pen!
Id. (footnote omitted). Therefore, Borschberg notes that Grotius "should not
merely be simply labeled 'prince of peace,' 'champion of reconciliation,' or early
advocate of the 'freedom of maritime navigation' as he has been for much of the
twentieth century. Such views have served to distort beyond recognition Grotius'
standing among the architects of early modem colonial rule." Id. (citation omitted).
Further, Richard Tuck writes that "[i]n the critical struggle between humanist and
scholastic over the right to inflict violence on barbaric peoples, Grotius (contrary
to his popular reputation) supported its infliction-and ...went on in De lure Belli
ac Pacis to make his support for it even more explicit." RICHARD TUCK, THE
RIGHTS OF WAR AND PEACE: POLITICAL THOUGHT AND THE INTERNATIONAL
ORDER FROM GROTIUS To KANT 89 (1999); see also Edward Keene, The Dualistic
Grotian Conception of InternationalSociety (Dec. 18-20, 2000) (BISA Annual
Conference), available at http://www.leeds.ac.uk/polis/englishschool/keene00.doc.
20071 A JUST WORLD UNDER LA W 203

The legal relationship of empire that evolved in the colonial era

also included a federation idea that was defeated somewhat by the
distance of colonial territories. I But, as Pagden points out, "[b]y the
time Robert Seeley came to write The Expansion of England in 1883,
. . . modem technologies of communication had [made it] . . .
possible to envisage a truly 'Greater Britain,' one that would,
constitute a global state."' 2 The ideas of divisibility of sovereignty
13
and a Global State are still with us and are indeed gaining ground.
However, contemporary modes of divisibility of sovereignty are
more complex. The slice of sovereignty that is parted with today
finds a non-territorial home. The ideas of federation and a Global
State are embodied in a collective of international institutions and
formal and informal global social networks.
While the emerging non-territorial Global State I suggest is
imperial in character, it can be transformed into a Global Welfare
State if only the international community can adhere to certain basic
principles and practices that in my view constitute the idea of global
justice, and to which I will return in the last segment of my
presentation.

II. CHANGING STRUCTURE OF INTERNATIONAL

LAW
Before turning to identifying the international institutions and
networks that constitute the basic building blocks of an emerging
Global State, I wish at first to indicate the essence of recent
developments in the world of international law in two crucial areas.
That is, international economic law and international human rights
law, as these are decisive in contrasting ways for the emergence of
the non-territorial Global State. Developments in international

11. See Pagden, supra note 9, at 41 (describing the challenges faced by

European colonial powers in exerting rule as one empire over diverse and faraway
colonies).
12. Id. at 44-45.
13. See John Agnew, Sovereignty Regimes: Territoriality and State Authority
in Contemporary World Politics, 95 ANNALS ASS'N AM. GEOGRAPHERS 437, 441
(2005) (citing exceptions to the concept of "absolute, indivisible sovereignty
exercised equally by all states," such as the shared sovereignty between China and
Hong Kong, the emergence of the European Union as a supranational body, and
the increasing power of international institutions).
 AM. U.INT'L L. REV. [22:199

economic law are critical as these lay the foundations of a global

economy over which the imperial Global State presides. International
human rights law, on the other hand, contributes to the emergence of
the Global State through uniting global peoples in a language that is
coming to be universally shared and frequently deployed in the
struggle to secure a global law of welfare from the international
institutions that constitute the emerging Global State.
The most fundamental changes today are taking place in the
domain of international economic law. The social class that is
leading the transformation of international economic law, in contrast
to the emerging bourgeoisie in the time of Grotius, is an emerging
transnational bourgeoisie. It is comprised of groups that own the
leading worldwide means of production as embodied principally in 14
transnational corporations and private financial institutions.
Transnational capital sees a borderless world economy as its field of
operation leading to the globalization of national production and
financial systems. Its third world component plays the role of a
junior partner with the crucial task of legitimizing the vision of
global capital in its own world. There is also support for this vision
in a growing global middle class that hopes to benefit from the
ongoing globalization process.

14. It is worth adding here that the issue of whether a transnational capitalist
class has emerged and the consequences flowing from international laws and
institutions it supports are two distinct questions. We may differ on the
consequences depending on the ideology, methodology, and perception one adopts,
but the emergence itself is a neutral issue that has to be empirically determined.
See William I. Robinson & Jerry Harris, Towards a Global Ruling Class?
Globalization and the TransnationalCapitalistClass, 64 Sci. & SOC'Y 11, 11-54
(2000); see also Roger Burbach & William I. Robinson, The Fin De Siecle Debate:
Globalization as Epochal Shift, 63 Sci. & Soc'Y 10 (1999). For debate on the
emergence of a transnational capitalist class see LESLIE SKLAIR, THE
TRANSNATIONAL CAPITALIST CLASS (2001); Jerry Harris, The Conflictfor Power in
TransnationalClass Theory, 67 Sci. & SOC'Y 329 (2003); BERCH BERBEROGLU,
GLOBALIZATION OF CAPITAL AND THE NATION-STATE (2003). My own conclusion
that a transnational capitalist class is emerging comes from the study of
international legal materials that show how a new international legal architecture
has emerged in the last quarter of a century. See, B.S. Chimni, Marxism and
InternationalLaw: A Contemporary Analysis, ECON. & POL. WKLY., Feb. 6, 1999,
337-349; B.S. Chimni, InternationalInstitutions Today: An Imperial Global State
in the Making, 15 EUR. J. INT'L L. 1 (2004) [hereinafter InternationalInstitutions
Today].
20071 A JUST WORLD UNDER LA W

The essence of the changes taking place in the world of

international economic law then is the creation of a unified global
economic space. It is again pertinent to recall here that in the long
period of transition from feudalism to capitalism in Europe, that is,
from the 17 h to the 19 "hcenturies, what was witnessed was the
creation of unified nationaleconomic spaces. At the political level it
was accompanied by the creation of a sovereign state system. The
process of creation of a unified global economic space is likewise
seeing the emergence of a Global State, albeit it will coexist with the
territorial state in an extended period of transition.
The unified global economic space is being established through a
range of international law instruments that include international trade
law as embodied in World Trade Organization ("WTO") texts and
international monetary law as prescribed by international financial
institutions. The key development here is the prescription of
minimum uniform global standards.That is to say, irrespective of the
sovereign territory on which transnational capital operates it is
increasingly governed by the same set of norms or norms that
possess family resemblance. For example, every WTO member state
has to abide by the norms governing intellectual property rights as
embodied in the WTO Agreement on Trade-Related Aspects of
Intellectual Property Rights ("TRIPS"). 5 Some states merely get a
longer transition period in which to implement them. 6 The examples
can easily be multiplied.
The emergence of a unified global economic space may also be
conceptualized in terms of the growing internationalization of
property rights through the medium of international law. Indeed, the
phenomenon of internationalization of property rights is crucial to
the creation of a unified global economic space." By

15. See Agreement on Trade-Related Aspects of Intellectual Property Rights

art. 1, Apr. 15, 1994, 1869 U.N.T.S. 299, 301.
16. See id. arts. 65-66, 1869 U.N.T.S. at 327-26. It is my view that the
prescription of uniform global standards is depriving third world states from
adopting international laws suitable to their stage of development.
17. One way of grasping the fundamental nature of the changes visiting
international economic law is to contrast it with the aspirations of third world
countries contained in the 1974 Program and Declaration of Action on a New
International Economic Order ("NIEO"). The program for NIEO consisted of a
number of elements that included adopting international commodity agreements
with price stabilization mechanisms, calling for the preferential treatment of third
206 AM. U. INT'L L. RE V. [22:199

internationalization of property rights, I mean that the change in the

form and substance of property rights is brought about through the
intervention of international law. Thus, the international specification
and regulation of intellectual property rights marks the inauguration
of a globalproperty age."s The internationalization of property rights
is also taking place throughout the world through the privatization of
state owned property, public utilities, and services ranging from
water to education and health, through the medium of international
monetary law whose norms are implemented as conditionalities by
international financial institutions.
I now turn to denoting the essence of developments in
international human rights law. The past few decades have seen the
rapid evolution of international human rights law and consciousness.
There has been a swift expansion in legal texts and agencies, both
governmental and non-governmental, and scholarship concerned
with human rights. 9 The essence of the expansion of the domain of
human rights is the creation of a global human rights space that
parallels the global economic space.
In normal course the two spaces would complement each other to
create a global law of welfare. But international human rights law
cannot deliver on its promise today, for the global economy is
controlled by states and social forces that do not take human

world countries in GATT, revising the Paris Convention on Industrial Property to

take into account third world countries concerns, drafting two codes of conduct on
transnational corporations and transfer of technology to place certain duties on
transnational capital, and changing the international norms of state responsibility
governing the nationalization and expropriation of property. In each of these areas,
third world states have either accepted legal regimes with antithetical contents or
abandoned the projects of reform. This turnaround has come because of the
adoption of neo-liberal policies by third world states critical to the creation of a
unified global economic space that meets the interests of the emerging
transnational capitalist class. See generally Declaration on the Establishment of a
New International Economic Order, G.A. Res. 3201 (S-VI), U.N. Doc.
A/RES/3201 (S-VI) (May 1, 1974); Progamme of Action on the Establishment of a
New International Economic Order, G.A. Res. 3202 (S-VI), U.N. Doc.
A/RES/3202 (S-VI) (May 1, 1974).
18. John Braithwate and Peter Drahos term it "the beginning of the global
property epoch." JOHN BRAITHWAITE & PETER DRAHOS, GLOBAL BUSINESS
REGULATION 63 (2000).
19. It has indeed become "a universal discourse." HENRY J. STEINER & PHILIP
ALSTON, INTERNATIONAL HUMAN RIGHTS IN CONTEXT: LAW, POLITICS, MORALS,
at v (1996).
2007] A JUST WORLD UNDER LA W 207

suffering and the language of rights seriously, in particular the

implementation of economic, social, and cultural rights. An
important obstacle here is the priority assigned to international
property rights. The debate on the right to health and intellectual
property rights in the WTO exemplifies the tensions between human
rights and property rights.2 0
The result is a growing resistance movement the world over to
realize the potential of human rights. For the language of human
rights facilitates in myriad ways the empowerment of the global poor
and marginal sections. The social movements, using modern means
of communication, have engendered a global human rights
consciousness that treats poverty and oppression anywhere as its own
concern. On the other hand, the current conflict between
international economic law and international human rights law has
dictated the need to establish adequate institutional structures to
defend the interests of global capital. These structures constitute the
emerging imperial Global State.

III.THE EMERGING GLOBAL STATE AND

SOVEREIGN STATES

A. EMERGENCE OF A NASCENT GLOBAL STATE

The eternal lament about international law that it cannot be

enforced represented a serious crisis for rising transnational capital.
For while a global unified economic space could be constituted
through a network of international laws, there was no Global State to
ensure that these laws were observed. There was an urgent need to
create or strengthen institutions that could enforce norms that
facilitated the globalization of trade, production, and finance. This
role has been assigned to key international economic institutions like
the WTO, the World Bank, and the International Monetary Fund

20. For the text of the Declaration on the TRIPS Agreement and Public Health,
see World Trade Org. [WTO], Declaration on the TRIPS Agreement and Public
Health, WT/M1N(01)/DEC/2, 41 I.L.M. 755 (2002). On its legal implications, see
James Gathii, The Legal Status of the Doha Declaration on TRIPS and Public
Health under the Vienna Convention on the Law of Treaties, 15 HARV. J.L. &
TECH. 291 (2002).
208 AM. U. INT'L L. REV. [22:199

("IMF"), the principal building blocks of an emerging Global State.21

Thus, for example, the WTO not only establishes a compulsory
dispute settlement mechanism, but also backs it with an effective
system of sanctions.22 The international financial institutions, on the
other hand, flex their international law muscle by using the power of
money. There are, in addition, a number of regional institutions and
bilateral mechanisms that embed and support this enforcement
system. Finally, Western states representing core interests of global
capital possess a de facto monopoly over the use of organized force,
a critical component of the emerging Global State. For where need
be, the unification of global economic space can take place through
the threat or use of force.
There are also global processes at work that are extending and
deepening the social reach of the emerging Global State without
displacing the territorial state. For instance, there has come into
existence a global network of legislators, judges, bank officials, and
police officials trying to collectively address common global
problems. 23 The networks are a first step in aggregating functional
processes at a global level, so necessary for the formation of a Global
State. However, given the dominant influence of global capital today
the most important effect of global networks is, as one observer has
noted, "the creation of a global bourgeoisie with a set of similar elite-
class views. 24 In other words, the critical impact of global networks
is the advancement of the normative and enforcement agenda of
global capital.2 These networks tend to weaken democratic authority

21. For a descriptive analysis of how these economic institutions construct and
perpetuate the emerging Global State, see InternationalInstitutions Today, supra
note 14, at 6-9.
22. See WTO, Rules of Conduct for the Understanding on Rules and
Procedures Governing the Settlement of Disputes, WT/DSB/RC/1 (Dec. 11, 1996),
http://www.wto.org/english/tratop-e/dispu-e/rc-e.htm; see also Understanding the
WTO: Settling Disputes - A Unique Contribution,
http://www.wto.org/english/thewtoe/whatise/tif e/disp le.htm.
23. See ANNE-MARIE SLAUGHTER, A NEW WORLD ORDER (2004); see also
Anne-Marie Slaughter, Sovereignty and Power in a Networked World Order, 40
STAN. J. INT'L L. 283, 288 (2004).
24. Kenneth Anderson, Squaring the Circle? Reconciling Sovereignty and
Global Governance Through Global Government Networks, 118 HARV. L. REv.
1255, 1272 (2005) (reviewing ANNE-MARIE SLAUGHTER, A NEW WORLD ORDER
(2004)).
25. See id.
2007] A JUST WORLD UNDER LA W 209

and accountability in third world states as they often bypass duly

established democratic institutions. 26 The networks divide and
relocate sovereignty in unaccountable social bodies and processes
that constitute the Global State as if it were by stealth.27

B. ROLE OF THE TERRITORIAL STATE

It may be worth asking at this point, what is the role of the

sovereign state in this scheme of things, setting aside for this purpose
the difference between Western and Third World states? For the
foreseeable distant future, the territorial state will coexist with the
emerging Global State. A principal reason is that the vision of
transnational capital is at present challenged by competing social
forces and interests. In fact, a significant task of the territorial state is
to mediate between transnational capital, national capital hurt by
globalization, and subaltern classes. The mediation will take place in
the matrix of strategic interests, the need to maintain rule of law, and
the demands of electoral democracy.
The other critical task of the territorial state is gate keeping. In the
age of accelerated globalization, migration and asylum policies are in
a significant way coming to constitute the sovereign state.28 Indeed, the
distinction between insiders and outsiders is critical to its survival in
the long run. On the other hand, there is the "unstoppable diversity" of
societies. 29 The territorial state will have to resolve the tensions that

26. See id. at 1301-03.

27. But, I must add that when a democratic and just Global State is established,
government networks also hold out the potential for taking the democratic agenda
forward.
28. See NEVZAT SOGUK, STATES AND STRANGERS: REFUGEES AND
DISPLACEMENTS OF STATECRAFT 57-100 (1999).
29. The phrase "unstoppable diversity" is that of Charles Taylor. See Charles
Taylor, Democracy, Inclusive and Exclusive, in MEANING AND MODERNITY:
RELIGION, POLITY, AND SELF 181, 186 (Richard Madsen et al. eds., 2002). As the
Canadian political philosopher James Tully notes, "[c]ultures, are not internally
homogeneous. They are continuously contested, imagined and reimagined,
transformed and negotiated, both by their members and through their interaction
with others." JAMES TULLY, STRANGE MULTIPLICITY: CONSTITUTIONALISM IN AN
AGE OF DIVERSITY 11 (1995). Another esteemed author surmises that "the struggle
for recognition between states will have the same outcome as that between
individuals, collective identity formation and eventually a [world] state."
Alexander Wendt, Why a World State Is Inevitable, 9 EUR. J. INT'L REL. 491, 493
(2003).
210 AM. U. INT'L L. REV. [22:199

come with it in the long period of transition to a fully evolved Global

Community and State.

IV.TWO INDIAS AND TWO WORLDS

It is time to return to understanding the consequences of the
ongoing transformation of international economic law and
institutions and the emergence of a nascent Global State. In this
regard allow me to look at the complex case of India rather than
recite known facts about global poverty and inequality. In the past
few years, India has caught the imagination of the world. Its
economy has picked up and is projected to grow at eight to ten
percent per year.30 It is among the favored destinations for foreign
investors. The liberalization of the economy since 1991 has
unleashed creative energies that are rapidly transforming the
economy. The Information Technology sector in particular has made
a mark in the world and is the source of the outsourcing controversy
in this country. 3'

30. See International Monetary Fund [IMF], IMF Executive Board Concludes
2005 Article IV Consultation with India, at 3, Public Information Notice (PIN)
06/17 (Feb. 21, 2006) (concluding that "[w]ith an acceleration of the reform
process, India would be able to achieve sustained economic growth of 8-10
percent, in line with the objectives of the authorities").
31. Incidentally, the Indian IT industry is an integral part of the emerging
transnational capitalist class. It is, in the words of Upadhya,
distinguished by its close integration into the global economy and its relative
autonomy from the 'old' Indian economy dominated by the public sector and
a nationalist capitalist class. For this reason, the IT elite differ sharply in their
ideological orientation from the established business class, many of whom
(represented by the 'Bombay Club') oppose unbridled globalisation. In
contrast to the old bourgeoisie, the IT business class emerged within the
global economy and a liberalised environment, and . . . is already highly
transnational in its composition. The entry of multinationals in the IT
industry, far from posing unwelcome competition to domestic firms ... has
produced synergies that have helped it to grow. For these reasons, members
of the transnational IT business class are, for the most part, outspoken
votaries of globalisation.
•.. [T]he IT industry and its leaders have had a disproportionate impact
on public policy, both directly by forging links with the state, and indirectly
as icons of a 'resurgent India.'
Carol Upadhya, A New Transnational Capitalist Class? CapitalFlows, Business
Networks and Entrepreneurs in the Indian Software Industry, ECON. & POL.
WKLY., Nov. 27, 2004, at 5148.
20071 A JUST WORLD UNDER LAW

On the other hand, political commentators in India often use the

metaphor of Two Indias. The first rich, mobile, and technologically
savvy, strong votaries of the ongoing liberalization and globalization
process. The other poor and marginal, deprived of even basic health
and education services, an integral part of the growing global poor.
The Two Indias coexist within the world's fastest growing market
democracy.
The government contends, and not entirely without merit, that
economic growth will lead to the reduction of poverty and inequality.
The problem is that it has not yet happened. The UNDP's Human
Development Report 2005 states that "overall the evidence suggests
that the pick-up in growth has not translated into a commensurate
decline in poverty."32 India ranks 127 on the Human Development
Index.33
Will future growth rates translate into equity for the poor and
marginal sections? It is interesting that even in economic literature
there are no ready answers to the question as to what kinds of
institutional structures make equitable growth possible.34 Indeed,
crucial questions relating to the character of the state and the nature
of leadership remain relatively extraneous to economic analysis.35
International law literature follows suit. Thus, for instance, the
nature of global social forces that influence states, international law,
and institutions remain mostly unexamined. It may then well be the
case, as I have argued, that the Indian State is deprived of policy
tools necessary to promote equitable growth by an emerging Global
State. Poverty and inequality are not, in other words, the outcome of
problematic indigenous policies alone, but in critical ways are a
product of policies prescribed and enforced by international
institutions. Therefore, despite its commitment to reforms with a
human face, and an active human rights movement pressing it, the
Indian State may not be able to deliver. In other words, polyarchy or
the phenomenon of low intensity democracy may become the bane of
India as of other third world states. Only those sections whose fates

32. UNDP, supra note 3, at 30.

33. See id. at 221.
34. See Ravi Kanbur, Growth, Inequality and Poverty: Some Hard Questions,
58 J. INT'L AFF. 223, 227 (2005) (explaining that "[t]here is substantial variation in
institutional structures ... across cases of success and failure") (citation omitted).
35. See id.
 AM. U. INT'L L. REV. [22:199

are linked with global capital may eventually benefit from the
ongoing changes in international economic laws and institutions.
What it means in the final analysis is that the world is today coming
to be divided into two worlds that of the Global Rich and that of the
Global Poor. Though it needs to be added that the population that
lives on less than a dollar a day is nearly entirely present in the third
world, injecting a strong North-South dimension to the divide
between the Global Rich and the Global Poor.

V. GLOBAL JUSTICE IN THE ERA OF TRANSITION

How do we change all this? What principles of justice should be
used to democratize the emerging Global Law and State? What
principles of global justice can address both the global geographical
and class divides?

A. GLOBAL NOT DOMESTIC JUSTICE

Before I say something about the idea of global justice, a word at

first on the possible objection that the creation of a "just world" is
not the task of international law at all and that its role should be
confined to simply ensuring a "world under law."36 However
persuasive this argument was in the past, it is not sustainable today
when the "world under law" possesses a scope and depth that
occludes the possibility of building what I term justice in one
country. The fates of all societies have today come to be linked in
ways that no longer allow any state to postulate and implement what
may be termed a domestic theory of justice. The choice in many
ways is now reduced to either global justice or domestic injustice of
one kind or another. The idea of an emerging Global State is
important here as its absence, or the lack of some form of global
sovereignty, is said to preclude, as Thomas Nagel has recently
argued, the idea of global justice.37 It is, as I have contended, no
longer the case.

36. See TERRY NARDIN, LAW, MORALITY, AND THE RELATIONS OF STATES
255-77 (1983) (distinguishing between an international system where states
simply conform to the laws of international society and an international system
where states attempt to distribute wealth and power equitably).
37. Nagel acknowledged that:
Some would argue that the present level of world economic interdependence
2007] A JUST WORLD UNDER LAW 213

B. CONCEPT OF JUSTICE

I now turn to explore the idea of "justice" beyond the suggestion

38
that justice today can only be conceptualized as global justice. I
believe, following Nancy Fraser, that there are three kinds of
legitimate claims that constitute the idea of global justice which can
help establish a global law of welfare in the matrix of international
human rights law. These are claims for redistribution, claims for
recognition, and claims for representation.39
In the case of claims for distributive justice what is involved is
global political economy, and in the case of claims for recognition
the remedy is cultural change.4° While the former implicates global
relations of production, the latter involves global relations of
recognition.41 The claims for recognition involve, as Habermas

already brings into force a version of the political conception of justice, so

that Rawls's principles, or some alternative principles of distributive justice,
are applicable over the domain covered by the existing cooperative
institutions. This would be a very strong result, but I believe that it is not the
case, precisely because such institutions do not rise to the level of statehood.
Thomas Nagel, The Problem of Global Justice, 33 PHIL. & PUB. AFF. 113, 137
(2005) (footnote omitted). According to Nagel, "international governance falls far
short of global sovereignty, and is ultimately dependent on the sovereignty of
separate states." Id. at 138.
38. See id. at 113 (". . . concepts and theories of global justice are in the early
stages of formation, and it is not clear what the main questions are, let alone the
main possible answers").
39. See Nancy Fraser, Social Justice in the Age of Identity Politics:
Redistribution, Recognition, and Participation,in CULTURE AND ECONOMY AFTER
THE CULTURAL TURN 25, 25 (Larry Ray & Andrew Sayer eds., 1999) [hereinafter
Social Justice in the Age of Identity Politics] (suggesting that there are two types of
claims for social justice: those seeking a more equitable distribution of resources
and those calling for a greater recognition of and respect for the differences that
exist between cultures); Nancy Fraser, Refraining Justice in a Globalizing World,
36 NEw LEFT REV., Nov-Dec. 2005, at 1, 6-7 (recognizing a third type of claim
seeking the fair and equal representation of all members within a community).
40. See Social Justice in the Age of Identity Politics,supra note 39, at 27.
41. See id. at 28. Fraser notes that
[b]ivalently oppressed groups suffer both maldistribution and
misrecognition in forms where neither of these injustices is an indirect effect
of the other, but where both are primary and co-original.In their case, neither
the politics of redistribution alone nor the politics of recognition alone will
suffice. Bivalently oppressed groups need both.
 AM. U. INT'L L. REv. [22:199

clarifies, "struggle for the recognition of collective identities . . .

within the community of peoples. '"42
A third set of justice claims relates to the claims for representation.
Among the basic problems that confront humankind today is that
crucial social and economic policies are negotiated and adopted at
the global level while these are implemented at the national level.43 It
raises complex issues related to the meaning of "representation" and
how far democracy deficit informs existing international institutions
that constitute the emerging Global State.
There is also, it deserves emphasis, an intimate relationship
between the three claims for recognition, redistribution, and
representation, explaining why I go beyond simply articulating the
claims for redistribution where principles of global justice are
concerned. For instance, the claims for global distributive justice will
be difficult to realize unless the claims for recognition and
representation are addressed. Misrecognition, for example, may
eliminate the possibility of realizing claims for redistribution, and
representation. Thus, in his seminal work Imperialism, Sovereignty
and International Law, Antony Anghie demonstrates how
international law continuously reproduces the structure of the
"civilizing mission" that informed the colonial project." Anghie's
work raises the crucial issue as to whether it is possible at all in the
circumstances to create an international law that is not imperial?45
Misrecognition in other words appears to greatly reduce the
possibility of creating a global law of welfare.
I believe that while modem international law has been structured
to legitimize and sustain domination, the different phases of
imperialism since the sixteenth century must be distinguished. That
is, if we are not to reach the pessimistic conclusion that it is not

Id. at 31. As Fraser points out, gender, race, class, and sexuality all represent
bivalent social differentiation both at the national and the global levels. Id. at 31-
33.
42. Jurgen Habermas, Struggles for Recognition in the Democratic
Constitutional State, in MULTICULTURALISM: EXAMINING THE POLITICS OF
RECOGNITION 107, 117 (Amy Gutman ed., Sherry Weber Nicholsen trans., 1994).
43. See Manuel Castells, Global Governance and Global Politics, 38 PS, POL.
SCI. & POL. 9, 10 (2005).
44. ANTONY ANGHIE, IMPERIALISM, SOVEREIGNTY AND THE MAKING OF
INTERNATIONAL LAW 313 (2005).
45. See id. at 317.
2007] A JUST WORLD UNDER LA W

possible at all to create a just world under law. A differentiated

history recognizes, for instance, the significance of the historical
struggles of the formerly colonized peoples to overthrow the yoke of
colonialism. At the levels of claims for recognition, redistribution,
and representation decolonization had a deep impact. This does not
negate the existing reality of domination but it would be mistaken to
believe that nothing changed with decolonization. What is necessary
today is to frame the claims for recognition, redistribution, and
representation for a new age. 46 I can do no more than mention some
principles and practices that should inform each of these different
claims to help establish a global law of welfare or a just world under
law.

1. Claimsfor Recognition

The first principle with respect to claims for recognition is that

international law must safeguard, to use the expression of Habermas,
"the other of otherness. '4 7 All peoples and cultures deserve our
respect, albeit within the confines of evolving international human
rights law. Reproducing the civilizing mission or misrepresenting the
Other can only translate into violence and reduce the possibility of
accepting claims for redistribution and representation.
The claims for recognition rest on an epistemological foundation
that assumes fallibility and corrigibility. This understanding was
fundamental to that great apostle of non-violence Mahatma Gandhi.48

46. Once the thesis that a nascent Global State has emerged is accepted the
different claims can justly be advanced. For as Nagel points out:
If we look at the historical development of conceptions of justice and
legitimacy for the nation-state, it appears that sovereignty usually precedes
legitimacy. First there is the concentration of power; then, gradually, there
grows a demand for consideration of the interests of the governed, and for
giving them a greater voice in the exercise of power. The demand may be
reformist, or it may be revolutionary, or it may be a demand for reform made
credible by the threat of revolution, but it is the existence of concentrated
sovereign power that prompts the demand, and makes legitimacy an issue....
Nagel, supra note 37, at 145.
47. See Andrew Linklater, Marxism, in THEORIES OF INTERNATIONAL
RELATIONS 129, 147 (Scott Burchill et al. eds., 2001) (quoting JURGEN
HABERMAS, THE PAST AS FUTURE 119-20 (1994)).
48. Mahatma Gandhi emphasized the "fundamental and inescapable fact of
human life that all knowledge was partial and corrigible." BHIKHU PAREKH,
216 AM. U. INT'L L. REv. [22:199

To put it differently, the principle of non-violence in dealing with the

Other is the most fundamental tenet that needs to be observed to
establish a just world under law. It, among other things, calls for
adherence to the principles and norms on the prohibition of the threat
or use of force contained in the U.N. Charter.
A second principle is that we must take all human suffering
equally seriously. For instance, the egregious violation of
international humanitarian laws that the world is witnessing today is
in great part due to misrecognition. The sufferings of Others is
somehow less suffering. Needless to add there are no innocent
parties here.
A third principle should be that we must not propose a settlement
to others that we ourselves would be unwilling to accept if the
situation were reversed.4 9 The idea of empathy that underlies this
principle embodies the essence of the claims for recognition by
seeing the self in the Other.50
Incidentally, the idea of accepting the claims for recognition at the
global level needs to be brought to bear on international law
scholarship in a very elementary sense. Western scholarship, with
honorable exceptions, still does not take cognizance of the
contribution of third world societies and scholars to the evolution and
development of international law.5

2. Claimsfor Redistribution

Where claims for redistribution are concerned, the first principle I

would propose is that third world peoples must not be denied

COLONIALISM, TRADITION AND REFORM: AN ANALYSIS OF GANDHI'S POLITICAL

DISCOURSE 173 (rev. ed. 1999).
49. This is an observation Elihu Root, first president of ASIL, U.S. Secretary of
State, and winner of the Nobel Prize for Peace in 1912, made to James Brown
Scott (among the founders of ASIL) while reviewing legal memoranda at the State
Department. See Frederick L. Kirgis, The Formative Years of the American Society
of InternationalLaw, 90 AM. J. INT'L L. 559, 567 (1996).
50. See generally Wendt, supra note 29, at 511.
51. For example, in his separate opinion in the Gabcikovo-Nagymaros Project
case between Hungary and Slovakia, Vice-President Christopher Weeramantry
had to go to great lengths to record the contribution of the non-Western world to
the ideas and practices of sustainable development. See Gabcikovo-Nagymaros
Project (Hung. v. Slovk.), 1997 I.C.J. 7, 88 (Sept. 25) (separate opinion of Vice-
President Weeramantry).
2007] A JUST WORLD UNDER LAW 217

economic policy options that the developed world has exercised or is

exercising. Take the principle of free trade. A historically contingent
application must acknowledge that the United States, for example,
never practiced free trade as it was developing and that U.S.
industries were among "the most protected in the world until 1945.'52
The United States and European Union continue to indulge in
protectionism even today. The agriculture sector is an obvious
example. In the circumstances it is indefensible that third world
countries are being compelled to open up markets at the cost of the
welfare of the poor and marginal groups in these countries.
A second principle of redistributive justice would call for
establishing the practice of social audit of international economic
laws, in particular to assess their impact on the global poor. To put it
differently, the primacy of international human rights law over
economic laws, in particular those which internationalize property
rights, should be recognized.53
The third principle I would propose is that humanitarian assistance
should be provided to all those in need without discrimination and
not be used to advance non-humanitarian ends.

3. Claimsfor Representation

Let me turn to the claims for representation. There is growing

consensus that key international institutions suffer from democracy
deficit. It is also being conceded in this context that the institutions
of representative government do not consume the meaning of
democracy.54 The relationship between the individual will and the
general will of society is coming to be structured and mediated in
complicated ways at the global level. 5 Sectional interests are often

52. Ha-Joon Chang, Kicking Away the Ladder: The "Real" History of Free
Trade, FOREIGN POL'Y IN Focus, Dec. 2003, at 6; see B.S. Chimni, The World
Trade Organization,Democracy and Development: A View From the South, 40 J.
WORLD TRADE 5, 11 (2006).
53. See U.N. Econ. & Soc. Council [ECOSOC], Sub-Comm'n on the
Promotion and Prot. of Hum. Rts., The Realization of Economic, Social and
Cultural Rights: Globalization and Its Impact on the Full Enjoyment of Human
Rights, U.N. Doc. E/CN.4/Sub.2/2000/13 (June 15, 2000).
54. See SUSAN MARKS, THE RIDDLE OF ALL CONSTITUTIONS 140-141 (2000).
55. As Phillip Allot has noted, "the problem of the connection between the will
of the individual citizen and the general will of society is not resolved by the idea
218 AM. U. INT'L L. REV. [22:199

given universal expression. To put it differently, the emerging

transnational ruling elite that has the greatest influence over the
emerging Global State cannot be seen as representing the interests of
the global populace. Other structures may therefore need to be put in
place. Thus, the first principle I propose is the practice of some form
of direct global democracy symbolizing a globalpolitical space that
parallels the creation of a global economic space.5 6
A second principle I would recommend is to make procedural
justice central to the principle of international cooperation. For
claims for representation cannot even be advanced if the
fundamentals of discourse ethics are not adhered to, as for example is
the case in the WTO negotiations.
A third principle I suggest is that in view of the growing role of
international institutions as building blocks of an emerging Global
State their responsibility in international law be clearly defined? 7
The International Law Commission is presently seized of the matter
and will hopefully work towards this goal.5"
The fourth principle is that global populations adversely affected
by international laws and policies must have a say in the institutions
that prescribe and enforce them. The international financial
institutions with their weighted voting system are a case in point.
There is in this regard also a need to support ongoing scholarly
efforts to develop principles of global administrative law to increase
participation, transparency, and accountability of global networks
and bodies.5 9

of representation." Phillip Allot, The Emerging International Aristocracy, 35

N.Y.U. J. INT'L L. & POL. 309, 320 (2003).
56. See Richard Falk & Andrew Strauss, Globalization Needs a Dose of
Democracy, INT'L HERALD TRIB., Oct. 8, 1999, available at
http://www.iht.com/articles/1999/10/05/edandy.t.php# (proposing an international
grassroots campaign to create the first "Global People's Assembly" in order to
organize the emerging international order along democratic lines).
57. See, Antony Anghie, Time Present and Time Past: Globalization,
InternationalFinancialInstitutions, and the Third World, 32 N.Y.U. J.INT'L L. &
POL. 243 (2000).
58. See U.N. General Assembly, Int'l L. Comm'n, Third Report on
Responsibility of International Organizations, U.N. Doc. A/CN.4/553 (May 13,
2005).
59. For a comprehensive examination of global administrative law, see
Benedict Kingsbury et al., The Emergence of Global Administrative Law (Inst. of
Int'l L. & Just., Working Paper No. 2004/1, 2004) available at
2007] A JUST WORLD UNDER LAW 219

CONCLUSION
It is time to ask who will be the agents of global justice? Who will
voice these claims for recognition, redistribution, and representation?
What social forces will in short help establish and sustain a global
law of welfare?
Each historical epoch produces its agents of resistance. The
contemporary era is no exception. The forces of resistance consist of
the old and new social movements within the third and first worlds.
What is emerging is a complex internationalism that combines local,
regional, and international social movements to forge what Castells
calls a "global movement for global justice."6 As history unfolds
there will be many moments of progression and regression and
unexpected turns and twists. But as long as these global forces of
resistance strictly adhere to the norm of non-violence, for violence
only begets injustice and violence, a global law of welfare can be
created. If this sounds utopian we only need to remember that not
many thought that India would win its freedom from colonial rule
through non-violent means or predicted the peaceful end of apartheid
in South Africa.
In conclusion, it would be interesting to imagine what the world
will look like when the ASIL celebrates two hundred years of its
existence. Will a full-blown Global State have arrived? Will it be a
confederation of territorial states or a unitary World State?
Eventually the global community like the national one is an imagined
community. It is socially constructed once the material conditions for
it exist as they do today. The great philosopher of language Ludwig
Wittgenstein wrote that "to imagine a language means to imagine a
life-form."'" Conversely, to imagine a new form of life, in this case a
democratic and just Global Community and State requires inventing
a new vocabulary. In other words, we international lawyers need to

http://www.iilj.org/papers/2004/documents/2004.1 KingsburyKrischStewart.pdf.
For a critique from a third world perspective, see B.S. Chimini, Cooption and
Resistance: Two Faces of Global Administrative Law (Inst. of Int'l L. & Just.,
Working Paper No. 2005/16, 2005), available at
http://www.iilj.org/papers/documents/2005.16Chimni.pdf.
60. Castells, supra note 43, at 12.
61. LUDWIG WITTGENSTEIN, PHILOSOPHICAL INVESTIGATIONS 7' (G.E.M.
Anscombe trans., 3rd ed. 2001).
220 AM. U. INT'L L. REV. [22:199

avoid being captive of the past in imagining alternative futures.

Meanwhile, in my view, we need to assist the ongoing global
movement for global justice in whatever ways we can to ensure that
hegemonic states and classes accept the idea of a global law of
welfare. Thank you.