International Law and Global Justice: A Developing Country Perspective

10/04/2019

The world is today faced with a range of problems that have to be urgently addressed by the international community. These include poverty, growing inequality, migration, unfair trade, and climate change. Nearly half the population of the world today is poor (defined as individuals earning less than $ 5.50 a day). There are also growing inequalities between rich and poor nations and inside rich and poor nations. Indeed, a recent report of Oxfam notes that the richest 26 billionaires in the world own as much wealth as the bottom 50 per cent population of the world. Nearly 60 million people are displaced in the world, of which 25 million are refugees. The consequences of climate change are manifesting themselves by the day. At least a significant reason for this state of affairs is the iniquitous character of existing international laws and international institutions. Instead of being instruments of cooperation to bring about a just and sustainable world order, these laws and institutions often contribute to creating or aggravating global problems.  

A key problem from the perspective of developing nations is that a large number of international legal regimes, presided over by international institutions such as WTO, World Bank and IMF, deprive developing nations of policy space to pursue an independent path of development. To take an example, the WTO Agreement on Trade Related Intellectual Property Rights (TRIPS) requires ever member state to legislate certain minimal standards. Some of these standards have been lobbied for by giant pharmaceutical companies that make super profits from even lifesaving drugs. The TRIPS regime has thus had a grave impact on the right to health of the poor as it has made the prices of lifesaving drugs unaffordable. When global civil society organizations like Médecins Sans Frontières, with the support of developing nations, attempted to overcome this problem by adopting a WTO Declaration on TRIPS and Right to Health (2001), the developed states negated it in practice by creating interpretive and practical obstacles or through pursuing what are known as TRIPS Plus standards (that is, increased standards) in non-WTO trade agreements.

The lack of policy space is not substantially different in the areas of foreign investment and monetary and financial policies where developing nations are constrained by a number of bilateral and multilateral international laws. They therefore cannot pursue an independent policy even in these critical domains. For instance, international investment law is codified in a variety of international agreements like Bilateral investment protection treaties, the WTO Agreement on Trade Related Investment Measures (TRIMS) and WTO General Agreement on Trade in Services and a number of free trade agreements (FTAs) which gives many rights to powerful multinational corporations (MNCs) in terms of their entry, establishment and operation. However, no binding duties have been imposed on them under international law vis-à-vis the peoples of host states. All attempts to adopt a binding code of conduct for MNCs at the global level have not succeeded as yet. These MNCs exploit the natural resources of poor nations to make profits for their shareholders without respecting the social, cultural and economic rights of host states. Thus, for instance, the Democratic Republic of Congo is one of the most natural resource rich nations in the world, is host to many MNCs, but its people are among the poorest in the world. It is listed 172 in the Human Development Index. While the ruling elite in these nations are often corrupt and incompetent it is not the only reason that these nations are not developed. The global legal and institutional arrangements are also responsible for this.

Reference may also be made to some other global problems and the role of developed nations. Take the global refugee problem, the largest refugee flows today are from Afghanistan, Iraq, Libya and Syria, all countries in which western nations have intervened in the name of promoting democracy or safeguarding human rights law. Of the refugees from these nations nearly 80-85 per cent of them are given protection in the developing world. But when the rest seek refuge in the western world to escape situations created by them, they encounter a range of legal and administrative measures that seek to keep them out in complete violation of the spirit (and often the letter) of the 1951 UN Convention on the Status of Refugees. Indeed, there have been hundreds of deaths of asylum seekers in the Mediterranean alone as asylum seekers are prevented from reaching the shores of European states.

It is also well known that the principal responsibility for the problem of climate change is the industrial policies of developed nations over the last two centuries. But their effort to address it has not been robust. In fact it is extremely unlikely that the Paris Climate Change Treaty (2015) can meet its objective of holding the increase in the global average temperature to well below 2°C above pre-industrial levels and pursuing efforts to limit the temperature increase to 1.5°C above pre-industrial levels. In other words, the risks and impacts of climate change will not be significantly lowered. Despite this situation U.S.A has walked out of the Paris Treaty. Meanwhile, the principle of common and differentiated responsibility which is applicable to developing nations is diluted in the Paris Treaty and there is some anxiety that the financial aid meant to be given to them to address the climate change problem may not materialize in the near future.

Despite the bias of existing international legal and institutional arrangements against developing nations the prevailing view is that the challenge of poverty and sustainable development can be met by poor nations if they established the right social, legal and political institutions at the national level with some developmental assistance from the rich nations. This view is coming to be increasingly questioned. It is being pointed out that while there is certainly a need to create right institutions the problems of developing nations cannot any longer be addressed within the nation-state framework because these are often a consequence of conforming to international rules and/or decisions of international institutions. Historically, international law and international institutions have been complicit with sustaining and legitimizing colonialism. Today, there role is to sustain and justify policies that tend to advantage the advanced industrialized nations. Developing nations have to go along with them because of what may be termed “structural coercion”; staying out can be made extremely costly by powerful nations. It is therefore being argued by progressive scholars and global civil society organizations that when international laws are likely to adversely impact the policies of developing nations with serious consequences for lives of ordinary people, they should be heard. This is termed the “all affected principle” (AAP). There are also efforts made by global civil society organizations to adopt resolutions/declarations/treaties that protect the interests of marginal and vulnerable populations. For instance, in September 2018 the UN Human Rights Council adopted the UN Declaration on the Rights of Peasants and Other People Working in Rural Areas which was supported by civil society organizations representing the international peasant movement.

In the backdrop of these developments progressive scholars have also called for the international community to take the agenda of global justice seriously. It is argued that in the era of hyper globalization it is no longer possible to contend that the idea of justice is meaningful only at the level of the nation-state, as has been argued by many leading political philosophers like late Harvard professor John Rawls. Today, important thinkers like Nobel Laureate Amartya Sen and Yale Professor Thomas Pogge have made out a persuasive case for global justice to be realized through democratic dialogue. The key steps that can be taken by the rich nations include restoring the policy space of developing nations, stopping armed “humanitarian intervention” in the developing world other than to prevent genocide or gross violation of human rights, giving financial aid to developing nations to handle problems like climate change, and accepting a fair share of the global refugees as part of equitable responsibility sharing. International laws and institutions need to be urgently reformed to support these objectives. 

 

 

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