International Law and Global Inequality
The simple basic definition of international law is a group of rules that countries observe when interacting with each other. There are three distinct legal directions in the international law and they are: Public International Law that involves the relationship between sovereign nations and international legal entities as the International Court; Private International Law which deals with questions when jurisdictions are in conflict and Supranational Law like treaties, conventions, etc., that the states adopt in a voluntary and collective way. Logically, three more questions are outlined as: is the International law a real law like the national laws; where the rules and the statues of this International law can be found and what is the way of enforcement of the International law since no world government exists.
Regarding the first question the answer is positive, the International law is a real law because nevertheless that, in contrast of domestic law where there is legislation, judiciary, executive authorities and police, the International law represents rules that are accepted by all or a group of countries and serve their interests. It has different characteristics in comparison with the domestic law and can be enforced in a different way.
What are the sources of the International law? The answer of this question is grounded in Article 38 of the Statute of the International Court of Justice and states that the sources are:
« 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.»1
The general conventions or treaties are similar to the contracts where the countries are parties which reach a certain agreement, on subjects they are interested in, through exchanging promises. After precizing, they are finalized in writing and signed by the legal representatives of the countries. They come into force after their signing by the countries that participate in them. Customer International law consists of customs that are the ways the countries choose a constant action regarding a certain problem or cituation called State practice. The general principles of law are those principles that are recognized by the civilized countries and represent definite beliefs and practices that are considered legal by these countries and they are grounded in their legislations. The general principles of the international law are justice, fairness and equility. The Judicial decisions and Legal scholarship are considered as subsidiary sources of International law, and being not laws themselves when coupled with certain evidences of General principles of law or a legal Customs they may serve as a proof for the existence of a definite rule of the International law. The decisions of the International Court of Justice are considered authoratative not only for the parties in the dispute but for all countries which eventually may have the same ot similar conflict.
1- Statute of the International Court of Justice , Article 38, Available at www.icj-cij.org/documents/index.php?p1=4&p2=2&p3=O#CHAPTERII The predecessor of the ICJ, the Permanent Court of International Justice had a similar provision.
The third question, how is the International law enforced has three answers that are commonly known as appliable. They are : Reciprocity – when the interests of a state are broken by another state usualy the answer is reciprocal action by returning the same action; the Collective action is an action of several states that deside to punish definite country for its unacceptable behavior. This action, usually restrictions in trade, aid to constrain the country from further similar actions and the third punitive action is Shaming. It is effective because most counries do not like negative publicity and try to avoid it. Shaming is substancially effective in the field of human rights. The gathering of media attention may cause the organization of international movements that will draw the attention of the International organizations which, on their turn, will issue resolutions and make them public to worsen the image of the country-offender of the International law.
After this short representation of the International law and its aspects comes the major question and that is how the International Law influences the social justice in the world and what is its role in the process of globalization. Philosophers2, economists3 and international lawers4 worried about the increasing poverty have concentrated upon the dominance of the rich countries in making the modern global institutional system due to which the inequality flourishes.5
2 - Thomas Pogge, Severe Poverty as a Human Rights Violation (2003), Available at
www.etikk.no/globaljustice 3- Richard Jolly, Global Inequality, in David Alexander Clark (ed.), The Elgar Companion to Development Studies (2006), 196, 199
The features of the modern global system brings about widespread severe poverty. Each day, about 50000 people, first and foremost children, female and people of colour. They die from starvation and related deseases due to poor income, bad healthcare, very poor care of water sources, etc., while in the developed countries the standard of living is high or very high in comparison with the Third world countries. The poor countries may not be blamed for that. In 2002, about 57 million people died and the main reason was the poverty and the related with it deseases as diarrhea, malnutrition, childhood deseases, malaria, meningitis, tropical deseases, hepatitis, etc. Here arises the question why these countries so rich in natural resources are so poor, who is exploiting these resources? The answer is simple and short – the big national and international companies.
The International Labor Organization (ILO) announced that 250 million children between 5 and 14 years are working in the Third World countries, and 130 millions are working part time while 120 million have a full time working day.6 Chirdren, involved in hazardous work, number 170, 5 million and 8,4 million are involved in « unconditionally worse » sorts of children labor like slavery, forced prostitution and pornography, use in armed conflicts, illegal drugs, etc.7
4 - Margot E. Salomon, Global Responsibility for Human Rights: World Poverty and the Development of International Law (2007).
5 - “The gap between the world’s richest country and the world’s poorest increased from about 3:1 in 1820 to about 70:1 in 2000.” Jolly (note 3), 197
6 – World Health Organization, Report 2002, Available at
7 - Ibid
Makau Wa Mutua, a SUNY distinguished professor, states that the regime of international law is not legitimate. He says that the system is rapacious and legitimizes ravage and subbordination of the poor world by the rich countries in the West. He writes that «universality» or « the promise of global order and stability make the international order just, equitable, and legitimate code of globalgovernance for the Third World.»8
A movement was established with the name TWAIL that means Third World Approaches to International Law in 1955 in Bandung, Indonesia and it was the first effort of Asian and African countries to organize a coalition to expose the specific issues of the Third World. The scholars that take part in TWAIL (famous as TWAIL-ers) intend to change the oppresive aspects through re-examination of the colonial foundations of international law. TWAIL found inspiration in the movements that occurred sfter the World War II struggled for the decolonization of the countries in Africa, Asia and Latin America. That was considered as the first generation of the movement. The second generation came in 1996 in Harvard Law School and started a study. TWAIL scholarship alludes to issues related to politics, society, identity, etc., showing theit dedication to democratic conserns and values in the relations between and within the Third World and the developed countries, prounced as the First World. The participants included in their personal projects the questions was it possible for the third world to break the links with the first one, was economic nationalizm an option, and how the history of the international law was represented.9
8 – Makau Wa Mutua, What is TWAIL, 94 AM. SOC’Y INT’L L., PROC. 31 (2000) 9 – James T. Gathii, Neoliberalism, Colonialism and International Governance: Decentering the International Law of Governmental Legitimacy, 98(6) MICH. L. REV. 1996 (2000);
A short overview through the history shows that the international law had its revival after the Second World War. The most substantial outcome from the war was the strong will among the nations to solve the problems without using military force and that was the main reason for the foundation of the United Nations (UN) on the principles of justice, fairness and equality. That was decisive for the international law and the decolonization. The United Nations consist of two bodies, the General Assembly and the Security Council. The General Assembly includes all members, it is ruled by the majority vote and its functions are to construe the UN Charter and give recomendations. The Security Committee consists of fifteen members, ten of which are elected by the General Assembly and five are considered permanenet members and can veto the resolutions issued by the Security Council. The permanent members at that time were Great Britain, France, United States of America, the Union of the Soviet Socialist Republics and the Republic of China.
Originaly the UN Charter did not include the the term self-determination but at the persistance of the Soviet Union it was writen into it.10 It had no immediate effect for the colonies in reference of self-determination because it was just a princople and was not in unison with the nations. Especially important was the Chinese revolution in 1949 when the power was taken by the Communist party and that made the link between decolonization and communism very strong.
10 – UN Charter, Article 1(2). The article states that the countries have to develop friendly relation among them that are based on the principle of “equal rights and self-determination
A conference took place under the title « Capitalism and the Common Good » where the theme was debated from the perspective of TWAIL. The principle argument of the TWAIL-ers is that there is a hot relationship between capitalism, imperialism and the international law that always has caused disadvantades for the Third World people. According to the TWAIL opinion, the idea that capitalism reccomends and contributes to the « global common good » can be supported only in case that someone neglects the critique of the structure of capitalism.
However, the assumption that the developed capitalist countries have ensured a good domestic welfare exploiting the countries of the Third World is provoked today by the sweeping development of countries like China and India. In the past the imperialism existed in parallel with economic crisis. Today the developed capitalist countries again face deep economic crisis, whie China and India show excellent growth. The question is whether the imperiaism is a reality and will it give the shape of the character and the nature of the international law in the century we entered. Due to the process of globalization the next division of the world will not be to First, Second and Third world, but the world will be devided to North and South.11
The new imperial formation is modeled by the arising Transnational Capitalist Class (TCC) that is established on the basis of the capitalist class in the developed capitalist countries. The international institutions are seen as key actors in the international relations implementing the relations between the developed capitalist countries and those from the Third World and the developing economics. The economic independence of the Third world is relocated in the international institutions through
11- Michael Hardt &Antonio Negri, Empire, Harvard University Press 335 (2000), ISBN 0-674-25121-0, Print
International laws in different degrees. The whole process will be backed by the military might of the developed countries under the leadership of the United States. The new imperial establishments form the character of imperialism in the globalization era.
The critics of capitalism oppose the statement for the ‘common good’ saying that is impossible for at least six reasons. First of all, capitalism benefits the rich classes not the poor, second, capitalism offers short-term solutions. The intercourse with nature is subjected to the philosophy of market, ruining the nature. The capitalist system is a source of disillusions that becomes very strong in certain moments as growing unemployment. The association connected with democracy and capitalism is very delicate and no one can insist that it promotes liberty and the last objection is that the capitalism has internal connection with imperialism.
The written above is a very tiny piece of information what happens today and what intends to happen in the future. The principles of justice, fairness and equality are entirely broken. The new agreements, like TTIP and CETA12, enslave most of the countries where puppet governments are installed, money laundering, unequal conditions for all participants, force the people to go poorer and poorer, no middle class, subculture and materialism are flourishing. The work is almost done and the beginning of the process of globalization is a fact. There is no prescription for survival but in any case the efforts have to be collective and not individual.
12 – Transatlantic Trade and Investment Partnership (TTIP) ; Comprehensice Economic and Trade Agreement (CETA) Agreements that are not finalized because of the strong influence of the European Citizens’ Movement that is organized against enslaving the European countries by the big corporations and financial organizations.
Comprehensive Economic and Trade Agreement (CETA), Web
Gathii, James, T., Neoliberalism, Colonialism and International Governance: Decentering the International Law of Governmental Legitimacy, 98(6) MICH. L. REV. 1996 (2000);
Hardt, M., & Negri, A., Empire, Harvard University Press 335 (2000),
ISBN 0-674-25121-0, Print
Jolly, R., Global Inequality, in David Alexander Clark (ed.), The Elgar Companion to Development Studies (2006), 196, 199
Mutua, Makao, W., What is TWAIL, 94 AM. SOC’Y INT’L L., PROC. 31 (2000)
Margot E. Salomon, Global Responsibility for Human Rights: World Poverty and the Development of International Law (2007).
Pogge, T., Severe Poverty as a Human Rights Violation (2003), Available at
Statute of the International Court of Justice , Article 38, Available at www.icj-cij.org/documents/index.php?p1=4&p2=2&p3=O#CHAPTERII
Transatlantic Trade and Investment Partnership (TTIP), Web
UN Charter, Article 1(2), Web
World Health Organization, Report 2002, Available at