Genesis of feminist jurisprudence

The development of feminist jurisprudence in the recent years has made a rich and fruitful contribution to the
development of law and legal theory. Time and again, it has been realized that gender has not been a pressing
issue in the arena of international law.

But the last 20 years have seen a continuous debate on women’s issues being addressed by different treaties,
protocols, and agreements all around the globe. The fundamental rule of international law is respect for human
rights and fundamental freedom without any discrimination, and hence, speedy and comprehensive elimination
of discrimination against women is a priority task of the international community.

The need of feminist jurisprudence

 Discrimination is global: The discriminatory nature of the behaviour that women receive transcends
national frontiers.
 In many societies, including India, women are considered inherently inferior, intellectually and
physically weak to men.
 Many countries deny inheritance and property rights to women.
 The worst amongst all is that when civil order breaks down, women are most vulnerable to torture,
physical abuse and rape, and slavery.
 Therefore, it can be seen that countries through their respective municipal laws have not been able to
tackle the problems of discrimination against women, so a need arose to establish a common set of
laws, principles, and regulations applied to all the countries.

Contribution of international movements

There are a lot of international documents contributing a lot to improve the socio-economic-politico status of
women in international frontiers. Some of them are:

 The Universal Declaration of Human Rights(UDHR)- Various Articles of the covenant cover different
aspects like Right to life, a ban on slavery, a ban on torture, equality before the law, covering Articles 3,
4, 5 and 7 respectively.
 Secondly, by Article 14 of European Convention on Human Rights (ECHR), the rights and freedoms
can be ensured without any discrimination of any sort.[3]
 SAARC has now and then, raised the issue of violation of rights of women. The years 1991-2000 were
designated as SAARC Decade of the Girl Child.

Role of International Organizations

Convention on the Elimination of Discrimination Against Women (CEDAW)

The all-comprehensive covenant covers a different aspect of the legal theory. It attempts to establish universal
standards on rights of women. Some of them are:

1. Representation in public life and the issue of nationality: Article 7 ensures participation of women in
public and political life; this article was needed because women were denied even the basic right of
‘Right to Vote’ and participation in elections.
2. Issues of discrimination and equality: As per Article 2 of the Convention, state parties condemn and
eliminate discrimination against women. According to Article 2(b), state parties are obliged to adopt
appropriate legislative and other measures.[4] In a popular case of Mauritius, Shirin Aurumuddin & 19
other Mauritian Women v. Mauritius, a claim under the ICCPR, 2 pieces of legislations on immigration
and deportation created gender discrimination against women and accordingly, as per the provisions of
CEDAW, the legislations were amended.
3. Educational, employment and health rights: Women, all over the globe are denied educational and
professional opportunities. Article 10 and 11 tries to eliminate discrimination on these
grounds. [5]Article 11(2) ensures that women are not dismissed from their jobs due to pregnancy.
4. Social and Economic rights: Article 13 represents important provisions relating to socio-economic
rights, including, right to family benefits, right to bank loans, mortgage and other forms of financial
credit and right to participate in recreational activities.
  Commission on Status of Women (CSW)

Soon after the establishment of United Nations, the Economic and Social Council (ECOSOC), by Article 68 of
the UN Charter set up CSW.[6]The main function of the commission is to prepare recommendations and reports
to the Council on Status of Women on promoting women’s rights in political, economic, social, and educational
fields. The primary objective of the commission is to promote the implementation of the principle that men and
women shall, and not just should have equal rights.

The Commission consist of 45 members and are elected by ECOSOC for a term of 4 years. The members act as
representatives of states and do not act in their personal capacity. The CSW is highly credited for establishing
the new standard setting mechanism.

The Commission on the Status of Women (CSW) is the principal global intergovernmental body exclusively
dedicated to the promotion of gender equality and the empowerment of women. A functional commission of the
Economic and Social Council (ECOSOC), it was established by ECOSOC resolution 11(II) of 21 June 1946.
The CSW is instrumental in promoting women’s rights, documenting the reality of women’s lives throughout
the world, and shaping global standards on gender equality and the empowerment of women.

In 1996, ECOSOC in resolution 1996/6 (see p. 20) expanded the Commission’s mandate and decided that it
should take a leading role in monitoring and reviewing progress and problems in the implementation of the
Beijing Declaration and Platform for Action, and in mainstreaming a gender perspective in UN activities.

 International Labour Organisation

Since the inception of the concept of international human rights, one of the biggest problems faced by
proponents of women’s rights is to promote gender mainstreaming. In spite of that, ILO was an early advocate
of women’s rights, because, women require protection, particularly in vulnerable employment situations like
during maternity period, and in the hazardous working environment. In its Convention no. 3, ‘Maternity
Protection 1919’ and Convention no. 103, ‘Maternity Protection, 1952’[7] lays down guidelines for the
protection of women at the time of maternity.

Reservations by the state parties

One of the major drawbacks of international law, also called as the Law of Nations is that there is the absence of
mandatory clause to be followed universally by the member-states. Therefore, time and again, reservations have
been made by the state parties upon any clause or clauses as per their whims and fancies. Although some
restriction is permitted, there is no upper or lower limit up to which reservation can be made.

All these years, after initiatives of different institutions and individuals, to foster human rights, which was
successful to an extent, many societies hold their religious, cultural and societal ordinance in the highest esteem.
And if any country shuns its internal norms and tries to adopt international standards, it is labelled as an attempt
to impose western cultural imperialism. Islamic states cause the main hurdle in this respect.

The People’s Republic of Bangladesh does not bind itself by Article 2, 16(1)(c) due to their conflict with Sharia
laws. But later, due to international pressure, the reservIn the light of significant violations of women’s rights,
many international organizations, in collaboration with individual states, have taken some initiatives. Some of
them are:

 World Humanitarian Summit, organized by UN Women on 23-24 May in Istanbul. Leaders from the
Member States, the UN, and multilateral actors, and civil society will come together to endorse
commitments to improve humanitarian action worldwide, including women’s rights issues.[9]
 The Vienna Declaration and Programme of Action, adopted by World Conference on Human Rights,
1993[10]
 Nairobi Forward-Looking Strategies for the Advancement of Women, 1985
 Beijing conference or The Fourth World Conference on Women, 1995. The objective being to review
progress made in the field since Nairobi Conference
Conclusion

All the conventions are called ‘International Bill of Rights’ covering all the aspects of women’s rights; now
there is a set of universal principles and guidelines to be followed worldwide. But the major criticism of such
covenants is the ‘reservation clause’, by virtue of which any country can put restriction(s) to any clause of any
covenant, and there are no sanctions if any country violates any principle of the Agreement, only criticism from
other countries only follows it. Hence, strict sanctions should be imposed on cuntries violating any provision of
any sort.
Introduction

 Feminist jurisprudence builds on certain aspects of this critical strain in legal thought. It is much more
focused and concrete, however, and derives its theoretical force from immediate experience of the role
of the legal system in creating and perpetuating the unequal position of women.
 IL generally resisted feminist analysis. Issues of sovereignty, territorial integrity, use of force and state
responsibility appear to be gender free in their application to States.
 IL where considered directly relevant to individuals, as with Human Rights law, feminist perspectives
have developed.
 Charlesworth et al (AJIL, 85: 1991 613-45) questioned the immunity of IL to feminist analysis – why
has gender not been an issue in this discipline? And indicate the possibilities of feminist scholarship in
IL
 Core argument is that both the structures of IL making and the content of the rules of IL privilege men;
if women’s interests are acknowledged as all, they are marginalized. IL is a thoroughly gendered
system.
 A feminist account of international law suggests that we inhabit a world in which men of all nations
have used the statist system to establish economic and nationalist priorities to serve male elites, while
basic human, social and economic needs are not met. International institutions currently echo these
same priorities. By taking women seriously and describing the silences and fundamentally skewed
nature of international law, feminist theory can identify possibilities for change.

Approaches

 Liberal Approach to Equality – Women are equal to women

 Cultural Feminism – Women and Men are different – respect the diversity
 Radical Feminist Approach – Power question
 Post modern feminism – TWAIL scholarship – avoid generalization about women across the world

Feminism in First and Third Worlds

 Western feminism began as a demand for the right of women to be treated as men. Whether in
campaigns for equal rights or for special rights such as the right to abortion, western feminists have
sought guarantees from the state that, as far as is physically possible, they will be placed in the same
position as men.
 Effect of Colonialism on TW women.
 National Movements and Women Rights
 Women could find themselves dominated by foreign rule, economic exploitation and aggression, as
well as by local entrenched patriarchies, religious structures and traditional rulers.
 Many Third World feminist movements either were begun in cooperation with nationalistic,
anticolonial movements or operate in solidarity with the process of nation building. Overt political
repression is a further problem for feminism in the Third World.

The Masculine World of IL

 IL is virtually impervious to the voices of women in both organizational and normative structures of
IL.
 Primary subject of IL are states, and, increasingly, IOs. In both States and Ios the invisibility of women
is striking.
  Power structures within governments are overwhelmingly masculine: women have significant positions
of power in very few states, and in those where they do, their numbers are minuscule. Women are
either unrepresented or underrepresented in the national and global decision-making processes.
 IOs functional extension of States – women restricted to insignificant and subordinate roles.
 Art. 8 of UN Charter- “The United Nations shall place no restrictions on the eligibility of men and
women to participate in any capacity and under conditions of equality in its principal and subsidiary
organs."

Women in International Decision-Making

 In reality, women's appointments within the United Nations have not attained even the limited promise
of Article 8." The Group on Equal Rights for Women in the United Nations has observed that "gender
racism" is practiced in UN personnel policies "every week, every month, every year."
 ICJ - https://www.hrw.org/news/2021/10/28/international-court-justice-should-have-more-women-
judges. (4 out of 109 judges until 2021 have been female) (Current 04 – USA, China, Uganda and
Australia). https://www.icj-cij.org/en/current-members. No steps taken to make half of the world’s
population represented at ICJ
 ILC – 229 Members since 1947 only seven have been women
https://opiniojuris.org/2021/10/07/symposium-on-gender-representation-representation-of-women-at-
the-international-law-commission/
 ICC- https://www.icc-cpi.int/judges/judges-who-s-who- 9 out of 18 – Statute – Art. 36 (8) (a) (iii) - (a)
The States Parties shall, in the selection of judges, take into account the need, within the membership
of the Court, for: … (iii) A fair representation of female and male judges.
 ITLOS- https://www.itlos.org/en/main/the-tribunal/members/ 6 out of 21 – presently are women – Dr.
Neeru Chadha from India is the current Vice President
 UN Committees experience no difference
 All the major institutions of the international legal order are peopled by men? Long-term domination of
all bodies wielding political power nationally and internationally means that issues traditionally of
concern to men become seen as general human concerns, while "women's concerns" are relegated to a
special, limited category.
 The importance of accommodating interests of developed, developing and socialist nations and of
various regional and ideological groups is recognized in all aspects of the UN structure and work. This
sensitivity should be extended much further to include the gender of chosen representatives.

Women in National Decision-Making – India106th

 Constitutional Amendment Act (2023) received assent of President on 28.09.23 – reserves one third of
the total seats in Lok Sabha and State Legislative Assemblies for women.
 73rd and 74th CAA – 1992 – reservation of women in institutions of local self governance – Panchayati
Raj and Municipal Bodies- mandated a minimum of one third of seats and office of chairpersons in
Panchayats and Municipalities be reserved for women
 Created a system with over 3 million Panchayat representatives out of which 50% are women
 2004 Paper by Esther Duflo et al on panchayats in West Bengal and Rajasthan found that women
leaders invest more in public good and ensured increased women’s participation in Panchayat
meetings.
 2011 study across 11 states – women led Panchayats made higher investments in public services like
drinking water, education and roads.

Effect of Feminist Analysis of IL

 Going on for last three decades or so – feminist critique have brought out the problems in the principles
of IL and the institutions established by it. UN has since its inception interest in the life of women.
Commission on Status of Women – very early established – deals with lots of issues dealing with
women’s’ life –
 1979 CEDAW – Committee that monitors its implementation has done important work w.r.t. women’s
issues – language of gender coming into IL and Institutions – for instance – gender mainstreaming is
now what is applied across UN – gender mainstreaming defined by ECOSOC
  SC Res 1325 of 2000 – consider women’s life in post conflict areas – involve more women in peace-
keeping, peace making and peace negotiations – several resolutions since then on women in post
conflict situations – helped in raising women’s profile - no effect on ground – very few representation
to women -AAA Syndrome – Apathy, adhoc practices and amnesia
 Essence of feminism is radical reinterpretation of tradition – Gita Sen

Marxist Approach to International Law

Introduction

Marxism is on of the most significant theories and philosophy that have contributed to the modern world
which have been contributed by the German Philosopher Karl Marx. Karl Marx advocated the working class to
question the injustice enforced upon them through their wages, life style and oppression. Marxism may be
explained as a social, economic and political philosophy that analyses the uneven distribution of wealth and
privileges in the society.

There are two Key Principles of Marxism viz, the Bourgeoisie and the Proletariats and the division among these
two. The bourgeoisie enjoyed the power to control the toiling masses’ wages and work, leaving them vulnerable
to even replacements in the future. In simple sense the bourgeoisie were the upper class who controlled the
means of production in a capitalist society while the proletariat were the section of lower class which consists of
the working class.

Marxist concepts are all connected by the common goal to contribute to what they perceive as the greater good
of humankind and its environment. Marxists must remain informed and reflective of the basic and most common
aspects of societies and their environment. This also means that if the industrial revolution (and capitalism in
general) smells of burning coal, overcrowded factories and petrol fumes, the smells of the next revolution
should be less deadly, less polluting and more protective of the earth. To understand Marxism, we need to grasp
the basic elements of Marx’s innovations regarding the origins and functioning of capitalism. These can happen
in both the domestic and international level where a combination of both leads to the most important
contribution Marxism offers to international law or international relations theory.

Marxian approach to international relations is based upon the concepts of Proletariat Internationalism, Anti-
imperialism, Self-determination and Peaceful Co-existence. It believes in the onward march of international
relations towards its logical and destined conclusion—end of capitalism- imperialism, unity of the proletariat as
one nation and true internationalism. Marxian view of international politics is identical with its view of politics.
Just as politics within a state involves a continuous struggle between the two contending classes, the rich
(owners of means of production, and having monopoly over production, distribution and exchange) and the poor
(the workers, the underdogs who suffer exploitation at the hands of the rich), likewise international politics is a
struggle between the capitalist states and the victims of capitalistic exploitation i.e., the poor and backward
states. International relations involve the exploitation of the poor states by the rich states through devices like
imperialism and war.

Marxism and International Law

According to Marx the International System is the nothing but a Capitalist World Order, which is being framed
in a manner so as to cater to the interest of the Dominant Class. Because the Dominant or powerful States are
nothing but the representatives of Dominant Class. Major Actor in International Relations is Class- All the
States, MNCs, International Organizations like- United Nations, IMF, World Bank, WTO etc. They all reflect
the dominant class’s interests in the Global Economic System. That Colonialism and Imperialism are the
methods through which Powerful states have acquired their control over Peripheral States and drained their
wealth by making the core countries a market of their own manufactured products

Four strands of Marxist Approach in International Relations–

1. World System Theory & Dependency Theory-

World System Theory– was given by Immanuel Wallerstein. This theory is closely linked with the concept of
Imperialism. It visualizes the Structure of Global Capitalist System in a following manner-
There is a CORE [ powerful countries], PERIPHERY [ Exploited countries] and SEMI- PERIPHERY. Core is an
area which is prosperous, developed, politically and militarily dominant and controls the Global Economic
system.

Periphery is termed as a satellite of the core. It consists of poorly developed and low- income group countries.
And they are politically and militarily weaker in nature.

Semi- Periphery consists of those countries which are declined Core means earlier they used to be developed or
dominant countries but now they have declined. It also includes Upwardly mobile periphery. These are
considered to be middle income countries and they are exporter as well as importer of the raw material.
Ultimately Wallerstein said that this system is unjust, inequitable, exploitative. And there is a need to bring a
change in this system to make a just and equitable system.

Dependency Theory– given by Andre Gunder Frank. He worked on this theory with respect to the Latin
American Nations. This theory is also similar to the idea of World system theory. It states that the Core or
dominant countries use periphery as their Satellite.

He stated that if any underdeveloped region is developing then this thing needs to be looked on that whether that
region is developing on its own or is it developing as a satellite of some core. As he said that in Latin America
the regions of Brazil or Chile were developing exactly as a satellite of the core. Which is why when core
withdrew their support from them, then their development totally went in vain and got stopped. So, it becomes a
dependency of Under developed Countries over Dominant countries. And the whole purpose of this dependency
is to exploit the satellite countries.

The Dependency theory came in against to the Modernization theory. Modernization theory was guided by the
ideologies and the national interest of USA. In this theory it was said that the underdeveloped nations will face
the same phases of development which developed nations have faced and owing to which they will become
developed. But Andre criticized this idea. He said that underdeveloped nations will not develop according to the
developed nations rather they will develop according to their own way in an autonomous manner. Condition of
these countries is miserable because they are in subordination to the core countries. And they can flourish and
can become self-sustainable only after getting completely detached from the core countries.

Frank gave example in context of India, that there was a time when India used to be a very prosperous country.
And once the Core which is Britain got into the picture. India started losing its prosperity because then India
became a satellite and its development became dependent on Britain.

 Gramscianism-
This concept of Gramscianism has been erected over the notion of ‘Hegemony’ propounded by Antonio Gramsci
in his book ‘Prison Notebook’. Gramsci says that Marx focusses a lot on Economy base. As Marx said that
changes in the Economy determine that how the Socio-Political superstructure is going to be. But Gramsci
discarded this idea. He said that on the contrary, the dynamism that are going on in socio- political
superstructure leads to change in economic base. And this process of change is not tangible.

If we apply this theory in Indian context. Then we can understand that how Dalits who were the marginalized
section. They believed that it is their destiny or fate that they would remain as an exploited class. So, this
ideology which was made by the dominant class for their own benefit was considered as a mainstream. And this
ideology got perpetuated by vedas, puranas, philosophies etc. And Gramsci said that this all phenomenon
happens in the superstructure and because of this the Economy which is a base gets affected.

There are many things like- Media, educational system, NGOs etc. Which help in ossifying the concept of
Hegemony. And with the help of Hegemony dominating class holds a dominance over superstructure.

In International Relation, hegemony manifest in dominant capitalist powerful state controlling global
superstructure-Internet, Financial market, global trade and manufacturing consent on prevailing moral political,
cultural values/ ideas- dress, food, entertainment, leisure, worldview and so on. So, when a superpower starts
controlling these things then it becomes a hegemon and it is way more than the power acquired by military and
Politics. Because through this the superpower starts owning the ideology itself owing to which the exploited
states start assuming it to be their fate and considering this exploitation to be the reality.
  Critical Theory

Critical theory has contributed significantly to analyzing international relations in the contemporary world. The
critical theory goes beyond the idea of objective reality, as according to the classical Marxist approach, its
boundaries were taken for granted. While analyzing international relations, the critical international theory
emphasises the formation, sustenance and transformation of the boundaries of the communities.

The significant role of the critical theory in the modern world is not to take narrow dynamics in analyzing
international relations but rather broadly grasp the actual units of society such as freedom, equality, and justice
across the globe. The concept asserts on establishing cosmopolitan arrangement. In contemporary global
politics, where ethnicities and cultures are marginalized due to their nature of being non-citizens, critical
international theory suggests rethinking the state’s role and opening up possibilities for idealizing international
politics in a more progressive manner. In the modern world, people suffering from international and regional
conflicts, climate change, or lack of opportunities flee to other countries and are named economic migrants.

Their status of being migrant restrict them from availing the resources and opportunities that can be utilized.
Marxism refers to migrant policies around the world and asks international hegemony to reconsider the
contemporary meaning of migrants. Marxist argues that such policies lead to blurring the social relations and the
movement of the people, and the creation of borders. Consequently, migrants are conserved with certain
qualities that make them a lesser class people compared to the native people, leading to further racial and social
inequalities.

 Neo- Marxism-

Neo- Marxist approach stresses on the original ideas of Karl Marx of- Historical materialism, Economic base,
Mode and Relation of production.

It says that what is happening at the societal level, when it starts happening at the world level, then it takes the
form of international relation. With the change in the social relation, International Relation also changes. And
with the change in time, mode and relation of production also changes which in the long run leads to a change in
International Relation. Therefore, the Timeless theory which is based on the concept of ‘Political Man’ that is
Realism is an illusion.

As with the passage of time Mode and Relation of Production changes and because of which International
Relations also changes

Conclusion

Quoting Adrienne Rich, the theory is “the seeing of patterns, showing the forest as well as the trees the rain
cloud and returns to earth over and over. But if it doesn’t smell of the earth, it isn’t good for the earth”. he
Marxist concepts are all about the common goal in a social system: a greater good for humankind and its
ambient. Understanding the Marxist approach to international relations, we must go through the origin and
functioning of capitalism at the domestic and international levels. Despite several critiques thrown against
Marxism and the breakup of the former Soviet Union, it is crucial to emphasize that, as various other Marxist
scholars have interpreted, Marx’s concepts are still highly relevant in the modern world. To create their
theoretical and intellectual framework, they used Marx’s theories. The Marxist contribution to international
relations theory may be interpreted in terms of revealing the underlying mechanisms of global capitalism in
which key historical and global events took place.

The Marxist approach focuses on classes, which implies that a society’s social and economic characteristics
determine society’s foreign interactions with other governments. Moreover, there really is no viable alternative
to the Marxist analysis of capitalism, as world-system theory and dependence theory give critical and significant
insights into the underdevelopment of the third world region.

Marxism is a relatively new approach to IR. In terms of basic assumptions, methodology and dealing with the
issues, the Marxist approach presents a different and fascinating picture of world politics. Imperialism has been
a keen area of interest for Marxists. Earlier Marxists have linked the origin and development of imperialism
with the advancement of capitalism. However, based on the analysis of imperialism presented by Marxists after
Lenin, it can be said that to have a proper understanding of the Marxist theory of imperialism, we necessarily
need to go beyond Hobson and Lenin and include neo-Marxist and globalisation era Marxist account of
imperialism in our study

Third World Approach

Third World approaches to international law is a critical school of international legal scholarship and an
intellectual and political movement. It is a "broad dialectic opposition to international law",which perceives
international law as facilitating the continuing exploitation of the Third World through subordination to the
West. TWAIL scholars (known as TWAIL-ersseek to change what they identify as international law's oppressive
aspects, through the re-examination of the colonial foundations of international law

History

Early origins (Generation I)

TWAIL was inspired by the decolonization movements that occurred after World War II[3] in Latin America,
Africa, and Asia. Symbolically, the conference held in Bandung, Indonesia, in 1955[3] is seen as the birthplace
of TWAIL, as it was the first attempt by African and Asian states to create a coalition to address the issues
specific to the Third World. TWAIL came about to address the material and ethical concerns as well as hardships
of the Third World.

New age movement (Generation II)[

The study of TWAIL and its organization originated from a group of Harvard Law School graduate students in
1996 Subsequent to a conference regarding post-colonialism, critical race theory and law and
development studies held at Harvard Law School in December 1995, graduate students held a meeting to
analyze the viability of creating third world approaches to international law. TWAIL scholars have subsequently
held conferences at various universities:

Harvard Law School, 1997 Osgoode Hall Law School, 2001 Albany Law School, 2007 University of British
Columbia,

Objectives

TWAIL's main objectives include:

 Developing an understanding as to how international law perpetuates the subordination of non-

Europeans to Europeans through international legal norms.
 Creating opportunities for Third World participation in international law.
 Proposing an alternative mechanism of international law that coexists with other critiques of the
neoliberal approach to international law
 Eradicating underdevelopment of the Third World through scholarship, policy, and politics
 Understanding and engaging Third World scholarship in the analysis of international law.

Concepts

Third World[edit]

The Third World according to TWAIL-ers, is a group of states, which are politically, economically, and
culturally diverse, but are simultaneously united in their common history of colonialism.[18][19] TWAIL
emphasizes that even after the end of the Cold War, the Third World is still a political reality. Some TWAIL-ers
believe this distinction to be even more alive today, due to the aggregation of diversification of states based on
economic development. They underline that the maintenance of the unity of the Third World is crucial in
combating the continuing domination of the First World and that the term has no pejorative connotation. The
First World is considered to be the group of states engaged in imperial practices and which continue to dominate
global politics and economics.

Approaches[

TWAIL reconsiders the history and development of international law and highlights the colonial legacy inherent
in it. TWAIL reevaluates the power relationships of the current world order to eradicate the racial hierarchy and
oppression present in international law. Although the goal is common, the methods employed to effect those
changes vary. Hence, TWAIL is a diverse and ‘coalitionary movement’ - its scholars use different methodologies
like Marxism, feminism and critical race theory. Therefore, there is no elaborate common TWAIL doctrine, but
all TWAIL-ers are nevertheless united in their struggle for the greater involvement of Third World peoples in
international law.

International Law[

TWAIL-ers underline that international law was created during the colonial era and that it was used to legitimize
the global processes of marginalization and domination of the colonized people by Western powers. They refuse
to accept the universal character of the international legal system, as it emerged solely from the European and
Christian tradition. In contrast, Third World countries were assimilated by force into the international legal
system, which does not reflect their diverse heritage. TWAIL-ers reject the idea that after the end of World War
II international law has moved on from its imperialistic origins. Although the system appears to be legitimized
by recognizing human rights and the right to self-determination, TWAIL-ers believe that international law is still
a tool of oppression and that decolonization processes were merely illusory. Amongst the modern forms of
domination, TWAIL-ers include:

The limitation of the Third World states’ sovereignty through transferring their autonomous powers to
international institutions controlled by the First World

The arbitrary application of the humanitarian intervention

The internationalization of proprietary rights

TWAIL-ers also emphasizes the inability of Third World leaders to secure the interests of their people and their
failed opposition to the First World hegemony, which further hinders the struggle for the liberation of Third
World peoples. However, TWAIL highlights that some concepts in international law simultaneously serve as
both an instrument of oppression and emancipation – like the international human rights regime, which not only
justifies the internationalization of property rights but also the protection of peoples’ freedoms. Hence TWAIL-
ers recognize that some elements of the system need to be preserved.

Scholars[

TWAIL is not a uniform school of thought and TWAIL-ers do not take a unanimous stance. Some of them are
more reconstructionist while others are more oppositional in their approach. Nevertheless, the scholars, in a
decentralized network, share a common concern for the Third World. Some of them teach TWAIL courses at
various universities around the world.

Criticism[

TWAIL-ers are sometimes accused of having a nihilistic approach. David P. Fidler,[39] Jose Alvarez and Naz K.
Modirzadeh criticize TWAIL for offering no positive agenda for action or reform in international law and
relations. Alvarez uses the example of the genocide in Sudan and TWAIL-ers’ refusal to subscribe to the
lobbying of the Security Council to take the desired action in the case. Alvarez's own work contains many
TWAIL-like themes and he has often been just as critical of certain liberal approaches to international law as
TWAIL scholarship has been. Post-structuralist critiques of TWAIL assert that the argumentative logic of
TWAIL ultimately operates according to the very conservative analytical framework it sets out to transcend.

It has also be pointed out that the TWAIL movement, itself, was shaped by Europeans and North Americans,
while purporting to speak on behalf of the "Third World". Naz K. Modirzadeh has observed that "[t]he vast
majority of TWAIL scholarship is produced and published in the Global North. Virtually all TWAIL gatherings
have been organized and funded by Global North institutions, even in the rare event that they have physically
taken place in the Global South."

In a recent 2020 study, the TWAIL movement was criticised in relation to it justifying Civilizational Colonialism
in the sensitive areas of High Asia (a metaphoric categorisation) in which many areas were included
like Kashmir, Hazara, Nuristan, Laghman, Azad Kashmir, Jammu, Himachal Pradesh, Ladakh, Gilgit
Baltistan, Chitral, Western Tibet, Western Xinjiang, Badakhshan, Gorno
Badakhshan, Fergana, Osh and Turkistan Region. These rich resource areas are surrounded by the five major
mountainous systems of Tien Shan, Pamirs, Karakoram, Hindu Kush and Western Himalayas and the three main
river systems of Amu Darya, Syr Darya and Indus. The work highlights the role of United
States, China, Russia, UK, India, Pakistan, Afghanistan, Kazakhstan, Uzbekistan, Kyrgyzstan, Tajikistan, Turke
y, Iran and other players involved in The New Great Game over who will dominate High Asia. The work
criticises TWAILers for ignoring sensitive areas like these and further tries to explore Pan-High Asianism and
High Asian Approaches to International Law (HAAIL) as the potential way forward for the region which can be
sub-categorised into the Western Pahari, Greater Dardic, Trans-Himalayan, Badakhshan and Sogdiana Belts.

TWAIL

Abstract:

What is a third world approach to international law, what does it represent and what does it add to the existing
literature of International Law? Is it useful to even ask these questions? This essay is an attempt to shed light of
international law seen and perceived by ‘third world scholars’ in order to present a possible alternative that
questions and criticizes the practices and beliefs of the existing international law. It is an attempt to understand
the history, composition and development of international law from ‘below’.

1. Introduction

A critical third world approach is an attempt to re-give sense to international law. A meaning that does not
disregard the lives of the ordinary people. An approach that make the lives and experiences of the peoples of the
world and the agencies of the subaltern real agents of change and emancipation. My argument here, according to
this perspective is that the development of international law since the 16th century is strongly connected to the
colonialism which can be seen in important areas, such as laws relating to the acquisition of territory,
recognition, state responsibility and state succession. However, any post colonial or third world perspective is
only an attempt with a historical critique to produce rather a universal international law.

2. Towards a Critical History

If we consider history as a critical means in this research, we will see how the colonial project is situated at the
very heart of international law. This means that it is not possible today to separate modern international law
from past doctrines and practices. One of the main obstacles in front of a universal international law from
example is the dogma of sources of international law. In the 1970s for instance, third world scholars noticed that
the resolutions, adopted by the United Nations General Assembly did not bring any change in the international
law.

Paul Kennedy, Yale historian and author of “The Parliament of Man” and “The Rise and Fall of Great Powers,”
reminds us in this book that the internal contradictions that exist at the UN today were present at creation, so to
speak. Kennedy even notices that “any reform of the UN Charter, such as creating a standing army

or increasing the number of permanent members of the Security Council, must be approved by all five of the
existing permanent members. However and over the years there have been endless commissions, reports, and
proposals calling for structural reform at the UN, but none have succeeded in persuading the current five to
change the status quo. One must concede that if the current

five cannot agree on reform, it would be even more difficult for a larger group.” Steve Bonta, the author of
Inside the United Nations: A Critical Look at UN said in his book that “The UN is also promoted by misleading
and even deliberately deceptive language, and is based on false and dangerous principle”. (P3)

In his last book he goes further and says that:

The UN founders’ objective was to create an organization that could take effective collective measures for the
prevention and remove threats to the peace and suppression of acts of aggression or other breaches of the
peace….the United Nations was to be a mechanism for the entire world to gang up on any country thought to be
a threat.” Or, in other words, in good Communist fashion, the UN would bring peace to the world through war.

This negative or at least critical view about the workings of the United Nation where International Law is every
thing but international is what made third world scholars and other post colonial theorists to present their
perspective in an attempt to present an alternative or at least contribute to the making of this universal law that
overlooked the subsequent struggles of the poor and marginal sections in the third world.

3. Between today and Tomorrow

Looking at the present of the International law with its divided self gives us a clearer picture although the new
capitalist class tries to unify the world market through international law viewing the production of a unified
global economic space as a historical task, which is exactly what the European national bourgeoisie did in
producing a national economic space in the 18th and 19th centuries.

This divided self illustrates the incapacity of the International Law to deal with the global spread of alienation
that underlie contemporary international relations. In his Article, “ l’Organisation des Etats Unis: Quel Avenir?”,
Ali Ratsbeen argues that any ambitious reform for the UN and in the International Law is a real challenge to the
member states because of the visions of unilateralism.”

To better describe the picture, Karl Marx in one of his early writings indicated four kinds of alienation: the
alienation of human beings from nature; the alienation of humans from their own productive activity; the
alienation of human beings from their ‘species being’; and the alienation of humans from each other. I think that
this categorization illustrates very accurately the injustice of modern international law.

Today, the violence against nature represents is a real crisis: the problem of global warming and other
cosmological troubles, man and nature are controlled and manipulated by market fundamentalism. International
environmental law is unable to respond to this global ecological crisis. It works with an empty concept of
sustainable development that is filled with the greed of global capital. Therefore, International environmental
law, is today subordinated to corporate interests.

Alienation is also present in the policy of labour dislocation resulting in the physical and mental destruction of
workers and their families especially when the flexibility policy is practiced in third world countries where there
is no social security.

International law as it is today promoting the concept of welfare and prosperity that transform producers into
commodities in the name of consumer choice which explains the centrality that the WTO has acquired in global
life. On the other hand, international law seems incapable to guarantee the basic needs of humanity. The right to
health for instance has been subjected to the market.

Now that the present seems not very promising, let us have a look at what we would like the future to be and
whether the perspectives of the third worked scholars would make a difference. These scholars think that the
fragmentation of international law is a real danger to global justice and peace. What makes it worse is the debate
on whether international trade law should promote the free movement of goods and services or environment
protection. In addition to that, debates between international lawyers usually with a western education and views
on international law that are from making a real integrity for a real universal international law that has only be
the specialty of western educated international lawyers.

Post modernity likewise and other similar absurd accounts look at this reality as a condition of a post modern
world. However, from the perspective of third world peoples, this reality is the result of an alienated
international law, and the narrow perspectives of a few disciplines that seem to ignore the complexity of humans
as non-divisible economic, political and social selves. This is exactly what the third world scholars see as
threatening and weakening at the same time a more global or universal approach and implementation of Internal
Law that is supposed to be rather characterized by solidarity and unity rather than fragmentation.

The third world scholars don’t not stop here or just complain and give rather pessimistic descriptions of reality.
They also suggest and give alternatives. They think that there many tasks before international lawyers to do if
we are to look for alternatives and to resist the hegemony of international law as it is today. International law
that we talked about and criticized before are now called to be more critical. They should revisit the histories of
international law looking for a more balanced structure and work and discover how global justice could be
achieved through international law.

It is no wander that the future of international law will also depend on the investigations on the imperial nature
and colonial heritage of it that should not be let only to political scientists to explore. Global history has proved
to be a very useful in both understanding and approaching phenomena and institutions and get better understood.
Historiography is now under investigation of global history and the past practices of international law are very
likely to offer lessons, and correct mistakes and fill in lacunas and voids and account for shameful practices or
sometimes point with fingers to this or that guilty cultural or political institutions. The link and conspiracy with
colonialism have to be recognized and dealt with and re written in addition to all the resisting forces and the
subaltern agencies and the everyday people who rejected this form of imperialism and who rather dreamed of
and sought for a new history that we can safely call a global Law that does not favor any one to any one.

A democratic global history can only be possible if we revisit and unveil the discursive discriminating practices
and the empire of the international law as a law that was not always international or global but rather
ethnocentric, repressive and schizophrenic.

In his “International Law from Below: Development, social movements and Third World Resistance”
Balakrishnan Rajagopal, MIT Professor presents another advice to international lawyers. His book offers a
fundamental critique of twentieth-century international law from the perspective of Third World social
movements, examining in detail the growth of two key components of modern international law – international
institutions and human rights – in the context of changing historical patterns of Third World resistance. Using a
historical and interdisciplinary approach, Rajagopal presents compelling evidence challenging debates on the
evolution of norms and institutions, the meaning and nature of the Third World as well as the political economy
of its involvement in the international system. At the heart of this investigation he places global justice at the
heart of the debate.

4. International lawyers face their discipline

Since the international is rapidly becoming internal, international law student will have to link this discipline
into a clear discourse of social justice and global justice. This should be the final aim and the motto of the
discipline itself which would teach them about the silenced voices and the voices of the subaltern that always
remain the weak voices for justice, equality, and human rights.

These lawyers should start from the belief that we don not live in a just world, what institutions and what ethical
standards should we recognize and apply throughout the world?!

These are the questions. Asking these questions would lead an even greater audience to get involved in the issue
where global economic relations will have to be redefined as well, the corporate sector will have to be more
ethical and the capitalist greed will be obliged to be more transparent and accountable, social rights would be
better protected, labour and health and the environment would become at the center of international law
agendas. Citizenship will be a real drive to a fair international law, an international law of the people and for the
people.

Good life then is not how the global capital defines it. A good life should not be dominated by capitalist and
corporate forces that control the life of people and create their desires that are not real needs. International
Lawyers are supposed to also take part in the reshaping of the norms and codes of the workings of these
corporations and how their employees could be protected.

A good life should be maintained by justice not power where democracy, citizenship and civic engagement can
take place. International law in its calls for cooperation should not forget the struggles and endeavors of the poor
who live the real consequences of cooperation that they usually did not choose themselves but was rather
imposed on them under many names.

Another important huge task for the international lawyers to take into account is to fight violence through
international law. If a reform would take place in the capital world and social corporate responsibility will start
to real mean what is says, violence would really happen here and there and thus our social relations would
become better and more humane. International lawyers should formulate laws that would enforce such
behaviours and commands. Having said that, international lawyers should also find ways to organize what I
have been calling resistance all along this essay. Secterian violence should thus be dealt with as well as a kind of
violence and the image problem that people have of each other and that is the accumulation of many
indignations and dissatisfactions and injustices of the international law should also be understood and dealt with
accordingly.
International law should learn from the past and history of its long presence not always very useful that violence
and wars and sanctions have not really brought about any changes or changed any behaviors but rather
aggravated them and created anger and injustice in many regions of the world.

5. Conclusion

Now that we have developed all these critical tasks and overviewed some third world alternatives and ideas of
the functioning of international law, I would like to end by mentioning that this task is not an easy task but that
requires participation and cooperation of sovereign states, change in educational curricula and media,
participation of civil society that is already playing in the ground with democratization and human rights issues
in addition to citizenship and development projects. The change in discipline itself is now clear to be a necessity.
The billions of people that have long been victims of the theories and practices of the international law and the
united nations resolutions that places like Rwanda, Somalia, Darfur, Sudan, Kosovo, Bosnia, Palestine and Irak
proved its inadequacy and inability to bring about real change and justice need now to be remembered. This is
what an international law from below would mean.

It is also high time to recognize that African States have contributed to the development of modern international
law because despite its apparent marginalization in the international system, Africa can stake a valid claim to
being part of the on-going process of shaping new rules and principles of international law while strengthening
and democratizing existing ones. Some the results we will expect are the broadening of the refugee definition
and the principle of non-refoulement in the area of refugee law; the rights of access and transit to the sea and the
concept of the exclusive economic zone in the law of the sea; the principle of uti possidetis; the concept of
`peoples’ rights’, as distinguished from that of `human rights’; the very expansion of the traditional
categorization of human rights to embrace the so-called third generation rights, such as the right to development
and, in general, certain principles in the area of international fluvial law concerning the common management
and utilization of shared watercourses.

CILT

To write of critical international legal theory (CILT) is to hunt a snark. As in Lewis Carroll’s famouspoem, there
is something important to be captured, but there lingers a very real possibility that itsdistinctive charms and
potency might “vanish... away” in the telling.1 For like many of the bodiesof work by which it has been
informed, CILT does not denote any single movement, school orapproach. Those identified with CILT are quite
likely to reject such a label, or to opt for somealternative (“New Approaches to International Law” (NAIL), for
instance, flourished during the1990s).2 Those so identified often disagree about what it is that they may be up to
in theinternational legal field, and what it is that they should aspire to achieve, even as they oftencollaborate
with and support others so identified. As a consequence, it is far from clear that CILTexists in any consistently
recognizable form. To the extent that it does, it is better grasped in thedoing than in the description. For purposes
of this chapter, however, let us bracket these bumps,cracks and holes and write something approximating a map
—and not, as in Carroll’s poem, ablank one—to aid navigation to, within and from CILT

This chapter begins by identifying two, braided historico-political fuel lines for work in the field ofCILT
(namely, Critical Legal Studies (CLS) and global critiques of liberalism). It then exploresthree overlapping
phases of CILT scholarship: a pre-1989 reckoning (dating from the 1980s) withthe non-materialization of the
promises of socialist revolution and the disappointments ofcosmopolitan, decolonization, and development
projects; a 1989 to 1999 reckoning with theapparent triumph of liberalism/neo-liberalism and the Washington
Consensus; and a currentphase, dating from approximately the turn of the millennium, of reckoning with the
post-Washington Consensus, the renewed spread or entrenchment of authoritarian nationalism, andthe
prevalence of casualization and economic inequality. In each of these phases, CILT has beenmarked by certain
persistent commitments and proclivities. Broadly, CILT theorizing has beenconcerned with understanding and
addressing the persistence of bias, the ambivalent operationsof power, in global order, and the role of
international law and lawyers within these. This chapterwill briefly examine how CILT scholars have addressed
these persistent themes, beforespeculating about some possible future key themes of scholarly work in this vein

I Fuel Lines
Despite its eclecticism, CILT has drawn inspiration from, or otherwise reacted to, certainpredecessors more or
less in common. The first of these is CLS. The second spans a range ofglobal critiques of liberalism. Each of
these “sources” warrants brief explanation, to set the stagefor an account of CILT.

1) Critical Legal StudiesCILT is not, contrary to some accounts, a straightforward application of CLS to
international law.3Nonetheless, most projects in CILT have drawn, directly and indirectly and in varying
degrees,upon a corpus of texts identified with CLS. It is, accordingly, appropriate to offer a brief précis ofCLS,
its provenance, and its various manifestations.The term CLS offers a shorthand for the diverse and often
internally conflicted body of workgenerated by a group of scholars in common law jurisdictions (primarily in
the United States) whoturned to critical theory and structuralism from the 1970s onwards in order to revisit and
renewlegal thought. In the aftermath of American Legal Realism, they sought to extract from thattradition
something other than a commitment to socially- and economically-attuned empiricism inlegal thought and
practice (breaking, in so doing, with the law and economics and the law andsociety movements).4 They did so
in order to work through a more or less shared sense of difficulties then facing legal scholars, and the
constituencies they purported to address or serve.5Mainstream legal scholars of the day were, in a famous
formulation of the CLS charge, “like apriesthood that had lost their faith and kept their jobs.”6 The failures of
legal formalism andobjectivism to deliver any “universal legal language of democracy and the market” had
beenelucidated at length and widely acknowledged, but much legal scholarship remained “devoted tocontaining
the subversive implications of this discovery.”7This invocation of legal formalism and objectivism recalls two
key arguments advanced by CLSscholarship, drawing variously on the lineages just identified (critical theory,
structuralism, andAmerican Legal Realism), which have also been features of CILT. The first entailed critique of
aparticular version of formalism identified (accurately or inaccurately) with nineteenth century legalthought.8
Legal formalism, for these purposes, comprised not just formalism as otherwiseunderstood (belief in the
capacity of deductive modes of reasoning to yield determinate answersto particular questions). It also signified a
commitment to methods of legal analysis andjustification that were understood to stand apart from “open-ended
disputes about the basic termsof social life, disputes that people call ideological, philosophical, or visionary.”9
In the legalformalist tradition so understood, the former entailed the application or interpretation of law,
whilethe latter constituted an extra-legal basis for the making of law. Against legal formalism, CLSscholarship
broadly contended that legal doctrine and legal concepts were too internallyincoherent to yield general rules
capable of consistent application. As a result, the distinctionbetween rule-making and rule-application could not
hold; every application entailed a “making” oflaw for the particular case out of resources both internal and
external to law, with neither theinternal nor the external being wholly determinative. Attendant upon CLS efforts
to collapse thisdistinction was the discrediting of the identity of the legally authorized decision-maker (the
judgein particular) as an ideologically neutral and disinterested figure.10 Also discredited was theaspiration, to
which much Legal Realism had up to that point held fast, to advance a scientisticunderstanding and practice of
law.11As a target of CLS, objectivism consisted similarly of something more specific than, albeit relatedto, the
generic meaning of the term (the belief that certain moral, scientific and philosophical truthsexist, and can be
established, independently of human knowledge or perception of them). It implied a “belief that the
authoritative legal materials [specific to any jurisdiction] . . . embody andsustain a defensible scheme of human
association”—a scheme often understood to comprisepolicy and principle alongside formal rule.12 Objectivism
entailed vesting that scheme withnormative force independent of “contingent power struggles or . . . practical
pressures” from whichparticular features of the scheme may result.13 It also involved an idea that a
“correct”interpretation of the law, with reference to a particular case, could be distinguished by anyonewith a
reasonable level of legal training, competence and experience, and enjoying access to therequisite data.14
Against objectivism, and in close alliance with their critiques of legal formalism,CLS scholars argued that it was
not possible to disclose or discern any “built-in legal content”enduring over time and space. Current social and
legal arrangements could not be imputed to“the requirements of industrial society, human nature, or moral
order.”15 Rather, sucharrangements were traceable to historically contingent factors and highly subjective
investmentsand struggles, as well as to recurrent patterns of privilege. This attack on objectivism wasadvanced
by CLS scholars doctrinally and historically. Via both methodological routes, abstractcategories were shown to
be devoid of determinative content such that any experience of feeling“bound” by the law had to be otherwise
explained.16The resources upon which CLS scholars drew in advancing these claims were
diverse.17Nevertheless, critical theory, structuralism, and American Legal Realism warrant briefidentification as
particular generative fields of investigation and borrowing by CLS scholars, andlater by scholars of
CILT.Critical theory alludes to a loosely affiliated body of work, and a set of insights, traceable to theInstitute
for Social Research established at the Goethe University Frankfurt in 1923.18 Seeking,initially, to explain the
non-realization of the socialist revolution anticipated in the writings of Marx,scholars of critical theory worked
to link cultural and ideological analyses to a partially-reconstructed Marxist theory of economics in order to
understand “the surprising survival ofcapitalism” notwithstanding its endemic contradictions.19 “Domination”
was a key term for thinkersidentified with critical theory. In their hands, it was a term signifying “a combination
of externalexploitation (e.g., the extraction of workers’ surplus value – explored exhaustively [by Marx] in
Capital) and internal self-disciplining that allows external exploitation to go unchecked.”20 Thelatter was, they
argued, inculcated by a whole range of cultural phenomena and social practicesthat appeared benign, beneficial
or banal and were, in many instances, experienced asexpressions of free choice. Among the phenomena
implicated in this, on which critical theoristsfocused in particular, were “reification” (“the process whereby
socially produced phenomena takeon a fixed, thing-like quality” as though products of nature or necessity) and
“legitimation” (theprocess by which certain social conditions, distributions of resources, and arrangements of
powercome to seem rightful by virtue of their integration with, and reproduction of, an ideologicalsystem).21
These were terms that CLS scholars employed in order to explain and confront theimbrication of law in the
production and persistence of unequal distributions of power, and viceversa. They have also been key terms for
CILT scholars.Structuralism refers to a mode of inquiry advanced in a number of fields—including
linguistics,anthropology, literary theory, and sociology—during the first three quarters of the
twentiethcentury.22 Characteristic of structuralist approaches was an effort to discern and describe
orderunderlying surface phenomena and events. Structuralist work tended to eschew diachronic (orhistorical)
explanations in favor of synchronic ones. Intentional, purposive human actions, andmeanings with which they
are invested, were also not decisive, or of primary interest, to thestructuralist. Rather, structuralist scholarship
elucidated patterns of cross-reference, repetitionand dependence common to a great variety of social
phenomena. Roland Barthes described the“goal” of so doing as follows:The goal of all structuralist activity,
whether reflexive or poetic, is to reconstruct an “object”in such a way as to manifest thereby the rules of
functioning (the “functions”) of this object.Structure is therefore actually a simulacrum of the object, but a
directed, interestedsimulacrum, since the imitated object makes something appear which remained invisible,or if
one prefers, unintelligible in the natural object.23For some CLS scholars (and later CILT scholars), structuralist
techniques and ideas offered apowerful way of decoding both the highly plastic and remarkably resilient
properties of legaldoctrine, without recourse to arguments of cause and effect or narratives of origin.24 In
thisrespect, CLS scholars’ structuralist borrowings were in tension with their critical theoryappropriations, as
David Kennedy has highlighted:Unlike critical theory, which constantly sought to identify and make responsible
the agentsof history, structuralism sets aside any question of agency. The structuralist asks howlanguage can
explain its puzzling flexibility and coherence without reference to either the object world described by words or
the subject world which invents and deployslanguage.25Critical theory set aside the intricacies and dynamic
properties of text or doctrine, whilestructuralism set aside historical explanation and questions of origin. Each
sought to escape theother. As a result, their combined legacy to scholars of CLS and others was more that of
“aproblem or a caution than a method.”26 Acknowledging this, an eclectic body of later work invarious fields—
work broadly designated post-structuralist—drew techniques and insights fromboth traditions to problematize
the stable antinomies of structuralism and to call into questionsome key referents of critical theory (including
that of a coherent historical subject).27 Tracingprocesses of differentiation, mimesis and displacement whereby
that which was discounted or setaside became so, poststructuralist scholarship showed just how unstable were
those hierarchiesupon which claims to authority have typically relied. In CILT—given its somewhat later
emergencethan CLS (a sequence discussed below)—it is mostly via post-structuralist work that thevocabularies
and motifs of structuralism were carried forward.28More widely acknowledged, as a progenitor of CLS
scholarship, is American Legal Realism, withwhich Gregory Shaffer’s chapter in this volume deals. Indeed, part
of what was at stake in thebattles among CLS scholars, and between CLS scholars and their critics, throughout
the 1970sand 1980s was precisely what to make of the Legal Realist lode or “mood” that Shaffer
explains.29CLS scholars sought to wrest this legacy from the hands of those who sought to press LegalRealism
into a variety of rightful, reformist molds: legal process scholars; liberal constitutionalists;law and economics
scholars; leftist legalists; and law reformers otherwise described.30Working with this heterogeneous heritage,
CLS scholars of the 1970s and 1980s were focusedalmost exclusively on domestic law. Only a few junior
scholars of the 1980s—David Kennedy inthe United States and, later, Martti Koskenniemi in Europe—took
public international law as afield in which to pursue inquiries along these lines.31 Perhaps because of the
relative marginalityof international law during the first phase of CLS work, work in this field was not derailed
by theintense battles that ultimately brought an end to the Conference on Critical Legal Studies in theUnited
States around 1992.32 Those were battles that divided, in Claire Dalton’s words, “theoristsfrom practitioners,
irrationalists from instrumentalists” and those who refused redemption or accommodation, from those
committed to reconstruction in the aftermath of critique.33 (In contrast,an annual Critical Legal Conference
started in the U.K. in 1984 and has been held annually,without interruption, ever since.)34Critical scholarship in
international law gained in prominence throughout the 1990s, as CLSweathered something of a backlash.
Scholars identified with critical race theory, third wavefeminism, and queer theory took CLS to task for its
parochialism and privilege, and theunacknowledged hierarchies with which this scholarship tended to be loaded,
inspiring a post-CLS fracturing (and renewal) of the critical enterprise in legal scholarship.35 During this “post-
CLS” phase, it was in the fields of international and comparative law where many scholars workedto extend,
problematize and diversify the CLS legacy.36 Moreover, though the influence of CLSwaned in the mainstream
legal academy in the United States, it retained a foothold in graduateprograms dominated by students from
outside the United States, many of whom were working inpublic international law.37 At the same time, those
programs were expanding and becomingincreasingly valuable to U.S. law schools as sources of fees and
vehicles for burnishing reputationand enlarging donor bases worldwide.38 As an affiliation with CLS became
somewhat of a liabilityfor junior scholars working in domestic law (in the United States and elsewhere), and
some leftthe academy altogether, CILT effected generational succession by engaging a global network of
researchers.39 CLS may have been “dead, dead, dead” by 1996, but CILT, in one form or another,lived on.40As
noted above, however, the life and times of CILT cannot be wholly explained by reference toCLS and its
aftermath. Scholars attentive to patterns of privilege and authority in the internationallegal field have long
quarried work that is either specific to this field or has held particularresonance for it. Some CILT scholars have
entered the field along routes that more or less by-passed the United States and its crucibles of CLS writing and
teaching

2) Global critiques of liberalismQuite apart from CLS, earlier bodies of work taking aim at liberalism (either
with explicit referenceto international law, or otherwise with a “global”, or root-and-branch aspiration) have
comprised arich intellectual and political seam for CILT scholarship to mine, and one to which CILT
scholarshiphas repeatedly returned. These include the solidarist critiques of liberalism and formalismadvanced
in late nineteenth century and early twentieth century France; the “anti-” motifdeveloped in nineteenth and
twentieth century German thought; feminists scholars’ and activists’engagements with international
organizations over the same period and in subsequent decades;and various strains of anti-colonial and post-
colonial writing. Other lines of political thought havealso informed critical international legal work from time to
time but escape mention here for wantof space (including, for instance, various types of anti-authoritarian
anarchism).42Solidarism has different implications in different national and disciplinary settings. (It has,
forinstance, quite a distinct meaning within the English school of international relations associatedwith Hedley
Bull.)43 Among the variants most suggestive of antagonisms that would later becomepivotal for CILT, however,
was that which emerged in late nineteenth and early twentieth centuryFrance, and among French-trained lawyers
based elsewhere.44 In quite varied ways, thoseassociated with solidarism advanced a critique of laissez-faire
individualism, and the economicinequalities it propagated, while also rejecting socialist accounts of the state as
a vehicle of thecapitalist class.45 They did so both empirically and normatively. Empirically, they posited
aparticular understanding of “social reality”—a reality characterized by interdependence—as constitutive of
legal and political order. This account of legal order implied an anti-formalunderstanding of law: that is, one
opposed to the sufficiency or reliability of approaching law as arationally integrated scheme within which one
right answer to any legal question can bediscovered by the suitably qualified and dedicated jurist.46 This
extended to the critique of rights.47Normatively, they advanced a reformist political program, at both the
national and internationallevels, in support of progressive taxation, access to education, poor relief, labor market
regulation,and institution-building towards these and related goals. Relatively infrequently have CILTscholars
explicitly revisited the ambivalent legacies of this solidarism.48 Nonetheless these earlieriterations of
formalism/anti-formalism in international legal thought have afforded CILT somethingagainst which to lever
their work in much the same way that CLS scholars levered againstAmerican Legal Realism.Anti-moralism,
anti-liberalism and other “anti-” positions (not to be confused with nihilism)advanced by the iconoclastic
German thinkers of the late nineteenth and early-to-mid twentiethcenturies, Friedrich Nietzsche and Carl
Schmitt, have long been generative—albeitcontroversially so—for CILT scholarship.49 International lawyers
Nietzsche and Schmitt were not,but the scale of their political vision, and the jurisprudential and political targets
of their work, havemeant that their work has held particular resonance for CILT, quite apart from any filtration
of thatwork through CLS.50 From Nietzsche and Schmitt’s brutal excoriations of liberalism
andhumanitarianism, in particular, CILT scholars have learned how to bring to the surface that whichgets
smuggled in via accounts of the good, progress, rightfulness, or other versions of the norm,and to track who
wins and who loses under these terms.51 Also highly influential in this context is one successor for whom
Nietzsche was pivotal: Michel Foucault.52 It is in debt to Foucault, as wellas Nietzsche, that CILT scholars have
developed counter-disciplinary ways of working withhistorical materials.53 It is also thanks to Foucault’s work
that CILT scholars have been able tograsp and trace distinctively modern strategies of governance and
operations of power that haveproliferated since the eighteenth century, especially in the crafting of state and
individualsubjectivity.54A further body of work that has long been generative for international law and lawyers
of both“mainstream” and “critical” persuasions is the thinking and practice of feminism on the globalplane, on
which Karen Engel, Vasuki Nesiah and Diane Otto write in this volume.55 CLSscholarship did engage with and
make occasional “use” of feminist work for its own purposes.56However, the significance of feminist
scholarship for CILT has been far more enduring and wide-ranging than it ever was for CLS. It was feminist
interlocutors with CILT, for instance, that firstintroduced some concerns characteristic of CILT into the pages of
that venerated flagship ofinternational legal scholarship: the American Journal of International Law, in 1991.57
Feministscholars and activists have highlighted significant new routes and targets for CILT work.58Moreover, to
the extent that CILT has generated its own presumptions about languages,experiences and aspirations being held
in common, feminist scholarship has encouraged a push-back against those supposed commonalities. Finally, it
is important to acknowledge that, unlike CLS scholarship, CILT has long drawn insightsand tactics from anti-
colonial and post-colonial literature and continues to do so. This was thecase even before this intersection
gained greater visibility through the initiation of TWAIL (ThirdWorld Approaches to International Law), on
which James Gathii writes in this volume. At leastfrom the inter-war period onwards, international lawyers
treated the colonial encounter as pivotalto the constitution of international legal order.60 For many, effective
“management” of colonialism’sbrutal legacies has long been a crucial test of international law’s viability in the
modern era.61 Byreading literatures of anti-colonialism, and engaging with postcolonial literary theory and
historicalwork, CILT scholars elaborated upon this sense of colonialism’s “centrality” to make powerful
newinterventions in, and reorientations of, legal scholarship. Among the contributions made byscholars so
engaged have been the provocative unmooring of identity as a basis for post-critiqueredemption, and the
furthered understanding of those strategies of avoidance and deferral onwhich authoritative sensibilities of
international law often depend.62 In this context, new insightshave also been put forward into the role of the
image, and of perspective and scale, in internationallegal work.63 Perhaps most influential among these
contributions has been the development of acogent counter-narrative—or set of counter-narratives—surrounding
the status, character andconstitution of sovereignty in international law.64With these resources, CILT has
advanced, to date, in three main phases, cycling through a rangeof enthusiasms, disappointments, skirmishes and
preoccupations. None of the phases about tobe sketched has entailed some rolling-out or operationalization of a
pre-formed theory in the realmof the empirical. Rather, each has been a period of CILT’s making and remaking,
disorientationand reorientation, dissipation and regrouping. Whereas “mainstream” international law, over the
same period, cultivated “academica mediocritas, that cult of the virtues of moderation and poisein things
intellectual that implies the rejection of all forms of excess, even in matters of inventionand originality,” CILT
scholarship has sometimes seemed in pursuit of academica extremus.65That is, CILT contributors have often
experimented with trying to push the limits of what hasappeared, at the time of writing, to be academically and
politically possible.66 The pedagogictradition associated with CILT (which has included a practice of regularly
recounting whathappened when and where within CILT itself, in a wide range of patently interested ways)
hasbeen enlivening and enabling for many, but it has never been straightforward.67 CILT work hasoften seemed
deeply imbricated in battles waged at a place and time more or less inaccessibleto the reader who encounters the
work in the present. This can be dizzying (not unintentionallyso) and means that the work in question defies neat
periodization. Any panorama of CILT work—this one included—is best read, in this light, with caution.

III Three phases

fThe earliest iteration of CILT took shape in the 1980s, as briefly described above. At this time,during the
waning of the Cold War, scholars informed by critical theory were reckoning still withthe non-materialization of
socialist revolution. They were grappling, also, with the disappointmentsof the cosmopolitan, decolonization,
and liberal development projects—in short, with the defeatof what David Trubek and Marc Galanter termed
“liberal legalism”.68 Ronald Reagan and MargaretThatcher had redirected thinking and policy in economics and
foreign affairs, such that the UnitedStates and the United Kingdom together comprised an engine of liberalizing,
privatizing,militarizing and rationalizing energies projected throughout the world.69 In the absence of “a
strongliberal or left political movement open to alternative programmatic thinking,” scholars who hadpreviously
found engagement with Marxist writings productive turned from revolutionary toreflexive endeavors.70 What
seemed pressing was to challenge faith in the broad architectures ofthought and allegiance by which the
twentieth century had, to that point, been marked. It was inthis context that seminal structuralist works were
produced by those two key figures mentioned earlier: David Kennedy and Martti Koskenniemi.71 Their aim
was no less than to create an“interested simulacrum” (recalling Barthes, above) of the entire corpus of public
international law:its doctrines, its intellectual history, and its professional style.72 And they pulled it off. The
later ofthe two works in question – Koskenniemi’s – has, in particular, attained iconic status, even if itmay have
been more frequently referenced, and described in generalities, than closely read.73From 1989 to 1999, as the
Berlin Wall tumbled and the force it had embodied seemingly shatteredand dispersed, CILT rose to greater
prominence within the international legal field. This alignedquite well with a pan-disciplinary fascination with
“new voices” associated with the breakdown ofCold War alliances and the emergence of new public-private and
sub-national configurations andconstituencies.74 It cross-fertilized, too, with prevailing scholarly emphasis on
the power of ideasand language in international politics and law (although that emphasis sat rather
awkwardlyalongside continuing ambivalence about intellectualism in international legal work).75 As they
triedto reckon with the apparent triumph of liberalism/neo-liberalism and worry around the edges ofthe
Washington Consensus, CILT scholars seemed to have less time or appetite for thepainstaking, root-and-branch
theoretical projects of the 1980s.76 Attempting to keep up with theincessant shell game of locating global power
seemed hard enough.77 Nonetheless, the 1990’s did see CILT scholars advance understanding of the complex
interpenetration of public andprivate legal and political orders (or nationalism and cosmopolitanism) on the
global plane, as wellas cutting through the comfort zones of global identity politics in cogent, innovative
ways.78Around the year 2000, CILT underwent a process of winnowing and reorientation. Annual
NAILconferences had ended, and the appellation “NAIL” had been ceremonially abandoned, with
the“movement” having become bloated and fractious.79 The discipline at large was by then filled“cheek by jowl
with people calling for new thinking and renewal,” and scholarship in internationallaw was “brimming over
with new angles and methods for renewing and preserving the field byescaping its past limitations.”80 It had
become harder than ever to distinguish the marginal fromthe mainstream. At the same time, celebration of the
capital-generating potential of technologicaldisruption was in the early stages of becoming ubiquitous.81
Financial crises in East Asia andLatin America discredited the Washington Consensus and ushered in a new
phase of legalreformism.82 And securitization intensified, as the targeted “muscular humanitarianism” of
the1990s gave way to more explicitly chauvinistic, nativist and generalized modes of globalviolence.83 In this
context, the continuing preoccupation of CILT scholarship with the shortcomingsof liberal legalism and
formalism sounded, at times, off key. Rerouting somewhat, CILTscholarship turned more attention to anti-
formal, non-doctrinal forms of legitimation, and extendedinto a greater array of subfields of international law.84
CILT scholars also began to confrontgrowing economic precarity amid the financialization and securitization of
more or less everything.85 The post-structuralist potential of history—intellectual and imperial
historiesespecially—became an area of particular focus, alongside continuing engagements withanthropology
and sociology.86 Meanwhile, new centers of support for, interest in, and activityaround, CILT emerged beyond
the United States: in Melbourne, Helsinki, Bogotá, London, Cairoand Toronto. At many of these sites, CILT
scholarship maintained a productive dialogue withTWAIL (the subject of James Gathii’s chapter in this volume,
as noted above). So dispersed, CILTcame to seem at once more resilient and less trenchant than it had in the
1980s.In each of the phases just described, CILT scholarship has been galvanized, to varying degrees,by a sense
of crisis, as well as maintaining a robust internal critique about the limits and potentialof crisis thinking, or the
practice of thinking of historical change episodically.87 In the third of thesephases, ongoing for the past two
decades, those crises animating CILT scholarship have not beena world away from those worries by which
scholarship in the mainstream has been mostexercised, namely: the interminable war on terrorism (and
continuing diffusion of the languageand techniques of counter-terrorism); the normalization of emergency and
the expanded reach ofexecutive powers; the continuing immiseration of the many for the benefit of the few,
apparent inthe intractable (and, in many settings, growing) gap between the wealth and income of the
world’smost privileged and those of the great majority of the world’s population; the desperate efforts
ofundocumented migrants and the intensification of nativist resentment towards them; and ourseemingly
incessant march towards an ever-more depleted and destructive climate.88 However,
what CILT scholarship does not, for the most part, share with the disciplinary mainstream is aworry that
international legal order as such is undergoing crisis, whether that be a crisis ofdeformation, fragmentation,
marginalization or de-legitimation. About such prospects, CILTscholars have not, on the whole, lost much sleep.
Rather than worry about international law’sdeclining effectiveness as a mitigant of crisis, CILT scholarship
tends to cast international law aslong complicit in the aforementioned crises and in sustaining and reproducing
their structural pre-conditions. It is this persistent hunch that is likely to seed future CILT on a number of
fronts.Before speculating about some directions that work might take, let us consider some strengthsand
weaknesses that CILT exhibits.

IV Strengths and Weaknesses

Now observed at “middle age”, it is possible to identify certain strengths and weaknesses of CILT(internal
conflicts and variations notwithstanding).Among its strengths are the distinctive contributions that CILT
scholarship has made to social andlegal thought. A range of compelling ways of thinking through the
hybridization of cultural,economic, and legal power, and of explaining the persistence of bias in global legal
order, havebeen put forward in CILT scholarship.89 This has been achieved, for instance, by elucidating therole
of style and technique in shaping and entrenching dynamics of international legal order.90 Inthis regard, and in
others, CILT scholarship has enlarged our understanding of the constitutiveeffects of the work of legal
professionals, and fostered greater reflexivity about law’s and lawyers’role in the disparate global distribution of
authority, violence, and resources. In addition, CILT hashelped international lawyers become more attuned to
the normative significance of backgroundrules and quotidian practices, including those to which international
legal scholars themselvessubscribe. In its efforts to decode complex entanglements of public and private power,
andgrapple with the interdependence of the material and the ideal in global affairs, CILT scholarshiphas also
helped ensure that those working in the field of international law are somewhat betterprepared than many of
their domestic law counterparts to confront dilemmas emergent incontemporary settings (about which I will say
more below).CILT’s concern with the global politics of distribution has also extended well beyond
theconventional repertoire of international legal reformism. It has extended, for instance, to aremarkably
effective practice, on the part of a significant number of CILT scholars, of redistributingsymbolic, social and
economic capital on the global plane. This has been achieved through theredirection of elite institutional
resources (that is, qualifications, recommendations and funding)towards researchers and research projects that
(for all their strengths) might not typically beregarded, or have regarded themselves, as so entitled.91 This has
entailed, also, a longstanding
commitment to the forging of scholarly allegiances (and, from time to time, their fracturing andrearrangement)
through organizing, gathering, pedagogy and mentoring. By these means, CILTscholars have lent support to a
wide range of relatively marginalized constituencies, both withinand beyond the academy, while largely
avoiding the righteousness and proselytism in which such“gifts” often come wrapped.CILT has had weaknesses
too, some of which might be seen as strengths in the sense thattackling them recurrently has helped to maintain
a sense of onward momentum in the field. Forall its post-structuralist protestations to the contrary, for example,
CILT scholarship has remainedfixated on a relatively narrow range of apparent centers and subjects of power,
such as the state,international organizations and multinational corporations. CILT scholars have helped see to
itthat “the State is reimagined as just one more institution in a complex and transnational civilfabric.”92 Yet it
remains the case that there is, in many CILT narratives, somewhere or someonedefinitive to look to, or blame,
when challenging inequity and injustice on the international plane,whether that be the World Bank, or some
other avatar of all things wrong with the world. As muchas it has sometimes overstated the power of its own
diagnoses (of this finger-pointing kind orothers), CILT scholarship has also quite frequently overestimated the
newness of, and theemancipatory potential associated with, its “revelations”—the bringing to light of
historicalcontingency, perhaps especially.93 This is, in turn, related to a propensity of CILT writing
tounderestimate the sophistication, insight, and adaptability of its targets. In some CILT work,almost everyone
seems a dullard about the operations of power, and their own complicity in thoseoperations, except the author in
question, her friends and allies. As Duncan Kennedy has said of“contemporary elite jurists” more broadly, they
have a tendency to “work to uncover hiddenideological motives behind the ‘wrong’ legal arguments of their
opponents [or predecessors], whileaffirming their own right answers allegedly innocent of ideology.”94 This
has, in turn, generated,at times, an awkward and problematic relationship between the CILT critic and her
“clients”, orthose on whose behalf she purports to write, act and teach.95 Some CILT writing has also
tendedtowards the overwrought and abstruse, making it stylistically poorly aligned with the worries abo
exclusion and disentitlement often voiced within it. It is doubtless possible to fault CILTscholarship on other
grounds as well, especially when that work is evaluated against aims andmethods more or less alien to its
terrain.96

V Future Directions

Any prognostication about the future direction of the diverse and unwieldy CILT “movement” isfraught with
risk. Offered here are three personal hunches about what might emerge as keythemes of CILT during its next
phase or are already (to varying degrees) emerging as such,namely: diffusion and digitization; the remaking and
hollowing out of empires; the Anthropoceneand the nonhuman.Diffusion and digitization refer to the challenge
of envisioning agency and enacting critique amidthe incessant gleaning, eddying, blocking, processing and
pooling of digital data—much of itautomated—by which every dimension of global affairs is now informed.
Structuralist binaries(even those cut through with post-structuralist nuance) often seem clunky, static and
cartoonishin this context, as do the ideal types of critical theory. Already, during the period of early CILTwork,
this was recognized as a challenge. In 1985, the influential German media theorist FriedrichKittler wrote: “since
1973, when Thomas Pynchon’s Gravity’s Rainbow was published, it hasbecome clear that real wars are not
fought for people or fatherlands, but take place betweendifferent media, information technologies, data
flows.”97 Even so, it is a challenge that hasintensified during the decades since, and that CILT seems still to be
only in the early stages oftackling. There is, nonetheless, much in the CILT repertoire likely to be helpful in this
respect.Much CILT scholarship has drawn attention to the prevalence of glitches, automaticity andunintended
consequences in the architecture and outcomes of international legal work. Thosetechniques that have been
employed by CILT scholars to grapple with moirés of grammar andknowledge format can have purchase on
digital lexica and infrastructure. So too can certain CILTtactics have continuing salience in this context,
especially those of drawing out ambivalence,sharpening awareness of stakes, and highlighting points of
resistance amid the informationalengorgement and complexity long typical of the global plane.The reference to
the remaking and hollowing out of empires suggests the importance (andlikelihood) of CILT scholarship taking
fuller account of the extent and ramifications of U.S. decline,the rise of China and India, and the changing
dynamics of global inequality. Phenomena offinancialization, underemployment and growing casualization (the
so-called “gig economy”), andthe entrenchment of working poverty (often accompanied by populism) in many
jurisdictions—and international law’s and institutions’ historic and contemporary implication in
thesephenomena—demand greater attention from CILT scholars. In this context, recent efforts to revist and
extend work in law and political economy sound a promising note.98 These are, moreover,calls to which CILT
scholars are well-positioned to respond, given prior work along this axis.Finally, thinking through the place and
potency of international law amid epochal shifts—specifically, the “shock” of the Anthropocene—is already of
concern to CILT scholars and likelyto remain so.99 CILT scholarship is increasingly attentive to the significant
role of nonhuman (orhybrid human-nonhuman) actants on the global plane and the collapse of
nature/culturedistinctions in an everywhere-already-impure world. These mark important new fronts in
CILTscholars’ ongoing efforts to call into question international law’s productive effects and
materialinstantiations.100In short, the snark is still very much at large.

UDHR

“All human rights for all’ and ‘the world is one family” are the two notions that have relied on the broadened
definition of human rights, ensuring human dignity for every individual of the human race in the global village.

The question of fundamental human rights has been relevant ever since the rudimentary structure of human
society came to be established. Such rights can be said to comprise the basic needs of human beings, which
include the right to food, the right to breathe clean and unpolluted air, the right to shelter, the right to clothing,
and the right to a decent environment, all of which are essential for human beings to live and survive, as against
natural rights, which all living beings enjoy from birth and which no human agency can give or take away.

The Universal Declaration of Human Rights (UDHR) declares, from the outset, that its goal is to establish
worldwide human rights. The Universal Declaration of Human Rights (UDHR) is a building block in the
modern history of human rights since it draws from ancient to contemporary philosophies in response to the
horrific events of World War II.

What are human rights

The term “human right” does not have a specific scientific definition. These are moral claims that are
inalienable and inherent in all human beings solely because of their existence. These claims are expressed and
formalised in what we now refer to as human rights, and have been translated into constitutional/legal rights
established through the law-making processes of states/societies, both nationally and internationally.

Human rights are often defined as “inalienable fundamental rights to which a person is essentially entitled just
by virtue of being human.” Thus, human rights are understood as universal (meaning they apply everywhere)
and egalitarian (meaning they are the same for everyone). Human rights is a generic term that includes and is the
traditional civil and political rights and newly developed modern economic, social and cultural rights.

The concept of human rights is also closely linked to human dignity. The World Conference on Human
Rights which was held in 1993 in Vienna stated in its Declaration, “All of the human rights are drawn from the
basic concept of human dignity, worth inherited in the human being. Human rights and fundamental freedoms
revolve around the human individual.”

History of human rights

The sphere of human rights has witnessed consistent and significant developments over the past century,
especially after World War II, but at the same time, it is also important to note that human rights have always
been a cardinal part of mankind across various cultures and human civilisations.

The earliest evidence of human rights can be traced back to the Persian Empire of Cyrus around 539 B.C. It is a
recent theory that Cyrus, after the capture of Babylon, established racial equality and freed all the slaves. He
declared that every human being has the right to choose a religion of their own choice. Other principles with
regard to human rights were recorded on baked clay cylinders, which were commonly known as Cyrus
cylinders. The most recent discussions about the Cyrus cylinder began in 1971, when the UN received a replica
of the Cyrus Cylinder with an English translation of it.

Developments in England

Some of the significant developments witnessed in England with regard to human rights. These developments
include:

2. The Magna Carta Principles (1215)

3. The Petition of Right (1628)
4. The English Bill of Rights (1689)
5. The Magna Carta Principles (1215)

One of the major developments in the sphere of human rights was witnessed in England in the form of the royal
charter of Magna Carta in 1215 by King John of England. Magna Carta principles are considered a cornerstone
in the history of human rights as it is the first and foremost formal document on human rights. It introduced the
principle of “rule of law”, which is one of the major facets of human rights. This Charter was drafted as a peace
agreement with the main objective of ending the rebellion of barons against the monarch in England. The
charter was mainly focused on providing swift access to justice, protection of church rights, and protection from
arbitrary arrests. The charter also laid limitations on the feudal payments to the king.

The Petition of Right (1628)

The following development with regard to human rights was the ‘Petition of Right’ in the year 1628, during the
reign of King Charles I in England. This petition was drafted by the Parliament of England after prolonged
political tensions between the Monarch and the Parliament. The petition consisted of a list of various demands,
such as end to arbitrary imprisonment without trial, illegal taxation, etc. The Petition of Right is considered a
significant step in the long process of transitioning England from monarchy to parliamentary democracy.

The English Bill of Rights (1689)

The Petition of Right in England was followed by the English Bill of Rights 1689. The bill was converted into
law with the assent of William III and Mary II, the then monarchs of England. It gave various civil and
constitutional rights, including freedom of speech in the parliament, free elections, consent of the parliament for
taxation policies, non interference from the government and equal and just treatment before the court of law.

Developments in the U.S.

The U.S. Bill of Rights, 1789 is another prominent document in the evolution of human rights. Drawing
inspiration from the English Bill of Rights, the Congress of the United States in 1789 proposed amendments to
the constitution. A total of 12 amendments were suggested, out of which 10 were ratified as Articles 3 to 12 of
the Constitution by 1791. These 10 amendments to the U.S. Constitution are collectively and popularly known
as the U.S. Bill of Rights. These articles granted various rights, such as freedom of religion, freedom of speech,
freedom of the press, protection from cruel punishments, etc.

Developments in France

The next significant development with regard to human rights took place in France ahead of the French
Revolution. France’s National Assembly adopted the “Declaration of the Rights of Man and of the Citizen” in
1789. This particular declaration represents one of the fundamental instruments of human liberties; it introduced
one of the basic values of human civilisations, which is that all individuals are born free and everyone has equal
rights. The declaration guaranteed the freedom of speech, religion, right to property, etc. The principles
contained within this declaration inspired the French Revolution which is one of the most remarkable events not
just in the history of France but also in world history.

Developments post 18th century

All the rights that were slowly recognised during the long process of evolution are commonly known as first
generation rights. These are the various civil and political rights such as right to freedom of religion, freedom of
speech, right to property, right to vote, just and equal treatment before the law, prevention from arbitrary arrest
and imprisonment, right to vote, etc.

In the late 18th century and the early 19th century, many wars were fought between various countries, which led
to the deaths of numerous soldiers. As a concern for human rights during such wars, the first Geneva
Convention came into existence in 1864, which focused on treating the wounded soldiers of war. This
convention was replaced by the Geneva Convention of 1906, which was further replaced by the Geneva
Convention of 1929. In addition to the three Geneva Conventions, the first multilateral treaties between various
nations were commissioned in two Hague Conferences of 1899 and 1907 which addressed the conduct of
warfare by establishing laws and customs of war. After the adoption of the Universal Declaration of Human
Rights, 1948, the 1929 Geneva Convention was replaced by the Geneva Convention, 1949, which is in force to
this date.

Relationship between two generations of human rights:

Even though the two sets of rights are recognized by the UN in two different Covenants, they have a strong
relationship. It has been correctly recognised that both kinds of rights are equally vital and that without civil and
political rights, economic, social, and cultural rights cannot be fully realised, and vice versa.

Global dynamics preceding the drafting of Universal Declaration of Human Rights

Although the theological, philosophical, and political foundations of human rights intersected early on,
providing a diverse variety of viewpoints crucial to the formation of civil liberty as a concept, no universal
baseline for human rights was formed until the end of World War I. The Treaty of Versailles, signed in 1919,
resulted in the formation of the League of Nations and the International Labour Organisation, two of the earliest
international institutions dedicated to achieving peace and promoting social justice.

The League of Nations Covenant guaranteed ‘fair and humane labor conditions’, ‘just treatment’ particularly for
people from historically colonial countries and members of minority groups, and ‘freedom of conscience and
religion.’

Despite the efforts made to incorporate racial equality and non-discrimination articles, the concept of
international protection for human rights was never fully examined or recognised by the global community.

The Institut de Droit International (Institute of International Law), a well-respected worldwide law institution,
drafted and adopted the Declaration of the International Rights of Man at its meeting in New York in 1929. This
agreement declared that “every individual has equal rights to life, liberty, and property” regardless of nationality,
gender, language, or religion.

Ironically, the outbreak of World War II and its numerous losses drew greater attention to the subject of human
rights. WWII killed almost 60 million people between 1939 and 1945, including allied and axis soldiers and
civilians, making it the deadliest battle in human history. Sexual brutality, forced labor, mass bombings, and
human experimentation were among the horrors committed during and after the Holocaust.
With the pledge ‘Never Again’, the international community pledged to strengthen international collaboration to
prevent future crimes against humanity. US President Franklin D. Roosevelt issued one of the first major
humanitarian responses to the cruel conflict. In January 1941, he proposed the Four Freedoms, which recognise
the basic liberties to which all people are entitled as freedom of expression, religion, lack of want, and lack of
fear, as well as the ‘supremacy of human rights everywhere.’ Roosevelt’s Four Freedoms were so influential that
they were later incorporated into the preambles of the Universal Declaration of Human Rights and other
important human rights declarations.

The United States, the United Kingdom, the Soviet Union, China, and 22 other countries signed the Declaration
of the United Nations in January 1942. Many states, including Panama, Chile, South Africa, and Mexico,
proposed inserting human rights provisions in the UN Charter in April 1945, and as a result, the UN Charter
talks about the promotion of ‘respect for human rights and fundamental freedoms that is entitled to each and
every individual in this world, with this it also mandated the establishment of a Commission on Human Rights
under the Economic and Social Council

About the Universal Declaration of Human Rights (UDHR)

As previously said the concept of inalienable rights and fundamental freedoms is not new; nonetheless, the
social and political setting of the mid-twentieth century was unique and left an eternal impact on the
development of human rights. At a time when society was undergoing significant changes, the concept of human
rights was also compelled to shift as well. Following the end of World War II, the Holocaust inevitably shed
light on human rights issues, bringing those concerns to the forefront in the postwar era.

The scars left by World War II on the human fraternity made it necessary for every nation to realise the need for
an international instrument that would serve as an attempt or effort towards ensuring peace and the protection of
human rights. Therefore, a declaration that was essential and that would serve as a guiding light in the direction
of the protection of human rights and the establishment of peace across the globe was drafted by the
Commission on Human Rights. This declaration was drafted in complement to and support of the UN Charter,
which mentioned the promotion of respect for human rights and fundamental freedoms.

The Universal Declaration of Human Rights (UDHR) adopted by the United Nations General Assembly, is an
international declaration that establishes all human beings’ rights and freedoms. It was adopted by the General
Assembly on December 10, 1948, at the Palais de Chaillot in Paris, France, after being drafted by a UN
committee directed by Eleanor Roosevelt. The UDHR is a foundational text in the history of human and civil
rights, consisting of 30 articles in it. Although the declaration is not legally enforceable, the rights are inscribed
in the constitutions and national legislation of many countries.

The Universal Declaration of Human Rights, along with the International Covenant on Civil and Political Rights
with its two Optional Protocols, the International Covenant on Economic, Social, and Cultural Rights along with
its Optional Protocol, forms the International Bill of Human Rights.

The UDHR, as mentioned above, comprises a preamble and 30 Articles that include both civil and political, as
well as economic, social, and cultural rights. Though there is no clear classification of articles into the two
categories in The UDHR, they can be broadly classified depending upon the rights that each article guarantees.
Articles 2 to 21 and Article 28 can be classified as civil and political rights, and Articles 22 to 27 can be
categorised as economic, social, and cultural rights. The first article of the declaration is the conveyance of a
message to every individual to uphold the spirit of brotherhood, and the last two articles of the declaration, i.e.,
Articles 29 and 30, are more like an obligation than a right; they impose the duty or obligation upon every
individual and state to not exercise any of the rights enshrined in the Declaration in a way that would violate
others’ rights and freedoms.

World Human Rights Day is observed every year on December 10th, the anniversary of the adoption of the
Universal Declaration of Human Rights.

Significance of Universal Declaration of Human Rights

Since the Universal Declaration is not a treaty, it does not impose any legal duties on
governments directly. It is, however, a statement of universal principles that all
members of the international community share; it has also had a significant impact on
the creation of international human rights law.

The UDHR serves as an instrument that has exceptional significance in the sphere of
human rights. It is the primary proclamation that reflects the commitment of every
nation towards the protection of human rights. This document has great significance
mainly because of two reasons, firstly, for the fact that it is the first international
instrument ever that focuses on the need for protection of human rights across the
globe. Secondly, the UDHR paved the way for other various instruments on human rights
that are legally binding upon the state parties. This declaration became the basis of
international human rights law and laid a foundation for the evolution of human rights
law not just at the international level but also at the domestic level. It inspired nations
across the world to give significance to human rights and to respect each and every
individual.

As an impact of UDHR, every nation today, regardless of whether it is a democratic

country or not, has provided its citizens with at least the basics of human rights. The
UDHR supported by various other international instruments on human rights, has been
successful in reducing numerous practices such as racial discrimination, torture, slavery,
etc., to a great extent, which were very prevalent during the 19 th century. Recognition of
women’s rights is another achievement of the UDHR.

Though it is said that the Universal Declaration is not legally binding upon the state
parties directly, it is nevertheless important to understand that the mechanism under
international human rights law makes the UDHR indirectly binding upon the state parties
through the medium of forthcoming instruments on the subject of human rights. The
various instruments that have come into existence at the international level are
ultimately based upon the principles and rights laid down by the UDHR. Therefore, any
nation that is a party to any of the instruments on human rights has an indirect legal
obligation to comply with the provisions of the UDHR.

In addition, the Universal Declaration of Human Rights has given rise to several international treaties that are
binding on the countries that ratify them. These include:

 The International Covenant on Civil and Political Rights (ICCPR)

 The International Covenant on Economic, Social, and Cultural Rights (ICESCR)

Other legally binding agreements that expand on the rights enshrined in the Universal Declaration of Human
Rights include:

 The Convention on the Elimination of All Forms of Racial Discrimination, 1965

 The Convention on the Elimination of All Forms of Discrimination against Women, 1979
 The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,
1984
 The Convention on the Rights of the Child, 1989
 The Convention on the Rights of Persons with Disabilities, 2006

Universal Declaration of Human Rights and Human Rights in India

India, as a democratic and welfare nation, has always given utmost importance to human rights and has always
been committed to the protection of human rights, which is also reflected in the Indian Constitution.

The UDHR had a great influence on the Indian Constitution since the drafting of the document was completed a
year later to the adoption of the international instrument. India, being a signatory to the proclamation, ensured
that the principles enshrined in the UDHR are also reflected in the Constitution of India. The words “Secular,
Justice, Equality” in the preamble, the very beginning text of the Constitution, reflect the spirit of India as a
nation to promote and protect human rights. The simple terms in the preamble are supported by Part III and Part
IV of the Constitution, which discuss the fundamental rights and the directive principles of state policy.

Case laws

The Supreme Court of India has been playing a significant role in the evolution of domestic jurisprudence with
regard to the sphere of human rights. Though the Constitution lists down specific rights under Part III, the
Supreme Court through wide interpretation of the provisions under Part III, has always engaged in making the
fundamental rights inclusive. The Supreme Court, through its decisions, has added various rights, such as the
right to education and the right to privacy, within the meaning of the right to life and liberty under Article 21 of
the Constitution, as implied fundamental rights. The Supreme Court of India has also recognised and invoked
the UDHR in various cases. Some of the cases where the Supreme Court of India has discussed the UDHR are
briefly discussed below.

His holiness Kesavananda Bharati v. State of Kerala & Anr. (1973)

Brief facts:

 In the present case, the petitioner was the chief of a religious institution (Mutt) in the state of Kerala.
The Mutt’s land was acquired by the state under the Kerala Land Reforms (Amendment) Act, 1969.
The petitioner challenged this Act in the Supreme Court, contending that the Legislation is violative of
Article 26 which provides for freedom to manage religious institutions.
 The Parliament in the meanwhile passed 24th, 25th and 29th Constitutional Amendment Acts, which
added the Kerala Land Reforms (Amendment) Acts, 1969 and 1971 to the Ninth Schedule of the
Constitution and also curtailed the right to property as a fundamental right.
 The petitioner challenged the constitutional validity of these acts and the power of parliament to amend
fundamental rights.

Issues:

 Whether or not the parliament can amend the fundamental rights.

 Whether or not the impugned Constitutional Amendment Acts are valid.

Judgement:

Though the present case is a landmark one that dealt with various issues, the relevant portion of the judgement
with regard to human rights is the issue of the power of parliament to amend fundamental rights. The Court in
this case held that the parliament has the power to amend any provision of the Constitution, but the amendment
should not be violative of the basic structure of the Constitution which includes the fundamental features of the
constitution such as equality, justice, or any of the principles mentioned in the preamble of the constitution. The
basic structure also includes Part III of the Constitution which includes the fundamental rights. The Court also
held that though the UDHR is not legally binding, the way the fundamental rights are drafted by the constituent
assembly shows how India understood the nature of human rights. The Court further held that the declaration
describes some rights as inalienable.

ADM Jabalpur v. Shivkant Shukla (1976)

Brief facts:

 The president of India declared a national emergency through a presidential order under Article 352 of
the Constitution citing threat to security of India due to internal disturbances.
 The presidential order led to the suspension of fundamental rights guaranteed under Part III of the
Constitution. Simultaneously, the court proceedings with regard to the application of Article 14, 21 and
22 of the Constitution were also subject to suspension.
 The declaration of emergency was followed by arbitrary detention of various politicians and others.
 As a result of the presidential order, the lower courts suspended the proceedings dealing with the
application of rights under Articles 14, 21, and 22 of the Constitution. But the decision of a few courts
was not in favour of the government, and the government appealed such decisions before the Supreme
Court.
Issues:

Whether or not the fundamental rights can be suspended during an emergency.

Judgement:

Hon’ble Justice Khanna, the dissenting judge in this case, while interpreting the presidential order under Article
359(1), held that the interpretation of the presidential order, since it affects the fundamental rights or human
rights, should be in conformity with the international customary law. Justice Khanna stressed upon Article 8 and
9 of the UDHR which provide for the enforcement of fundamental rights and protection from arbitrary
detention. He observed that the Court should interpret the presidential order under Article 359(1) in a manner
which would bring it conflict with Article 8 and 9 of the UDHR. He therefore held that the presidential order
should not be construed to permit arbitrary detention or suspension of any remedy for the enforcement of
fundamental rights.

International Human Rights Law

What is HR

Human Rights are defined as rights of individuals and groups that are recognized as such in international treaties
and declarations as well as by customary international law. They include civil and political rights (right to
participate in elections, assembly, freedom of opinion, association and expression), economic (right to work),
social (right to social security, right to health) and cultural rights (right to participate in cultural life), the rights
of minorities. Together, these international human rights today comprise a distinct branch of IL, known
variously as International law of human rights or international human rights law (IHRL)

IHRL is Distinguishable from those guaranteed by national law and constitutions as also those that are deemed
to be inherent in human personality IHRL traces its antecedents to HR principle enunciated over the centuries by
different religions, philosophical and political traditions, and in national legal systems that has its sources in
contemporary IL.

The Nature of Human Rights

Human rights are rights we have simply because we exist as human beings - they are not granted by any state.
These universal rights are inherent to us all, regardless of nationality, sex, national or ethnic origin, color,
religion, language, or any other status. They range from the most fundamental - the right to life - to those that
make life worth living, such as the rights to food, education, work, health, and liberty. Preamble of UDHR -
recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is
the foundation of freedom, justice and peace in the world

Widespread acceptance about importance of HR, in the international structure, there is considerable confusion as
to their precise nature and role in international law.

ICCPR

United Nations (UN) on December 16, 1966 adopted two covenants in its Resolution 2200 A (XXI): The
International Covenant on Civil and Political rights (Hereinafter, ICCPR ) and the International Covenant on
Economic Social and Cultural Rights (Hereinafter, ICESCR), these were made in pursuance of the Universal
Declaration of Human Rights. Post the 1948 Universal Declaration of Human Rights, it gave the work to a
committee to prepare a Covenant for the enforcement of such rights. This also led to debates between the
capitalist and communist states, with countries such as the USA pressing the need for Liberty Rights , whereas
other communist states insisting on economic, social and cultural rights. The deadlock in the interests between
these led the UN to direct the committee to make two different Covenants.

international Covenant on Economic, Social and Cultural rights

The ICESCR is a multilateral treaty adopted by the United Nations General Assembly on 16 December 1966 as
part of the larger resolution on Universal Declaration of Human Rights. It aspires to provide non-self governing
and trust territories and individuals , labour rights, right to health , right to education and the right to an adequate
standard of living
International Covenant on Civil and Political Rights

The ICCPR is a multilateral treaty adopted by the United Nations on December 16, 1966, and came into force
on March 23, 1976. The Covenant commits parties to respect the civil and political rights of individuals, which
includes, right to freedom of speech and expression, right to freedom of religion, Freedom of assembly, electoral
rights, due process and a fair trial. As of 2019 the treaty has 173 parties and six signatories that are yet to ratify.

Objective

The international human rights movement was strengthened when the United Nations General Assembly
adopted the Universal Declaration of Human Rights in 1948, this combined with the ICCPR and the ICESCR
form the International Bill of Human Rights. The major objective of these Covenants is to ensure that each
person is guaranteed these rights without any discrimination.

Importance

The ICCPR was a trailblazer in the field of Human Rights enforcements, this is because the Universal
Declaration of Human Rights adopted in 1948 was majorly persuasive in nature and didn’t have any binding
powers as such. Therefore, the ICCPR was made with the intent of bearing legal power, in the sense that those
countries which sign and ratify the treaty, have to then abide by its provisions and will be held liable for
violation of those rights. Many countries that ratified the ICCPR also agreed that the Human Rights Committee
may investigate allegations by individuals and organisations that the state has violated their rights. Article
28 of the ICCPR established a Human Rights Committee , which shall consist of eighteen members and shall
carry out the following function:

1. Reporting;
2. Considering Individual communications- the committee can receive individual communications from
any individual under the jurisdiction of a State that is party to the first optional Protocol. The
communication has to be made by the person who alleges that his rights have been violated or any
person on his behalf. The communication cannot be anonymous. The person has to show that domestic
remedies have been exhausted, and the complaint should not be under consideration of any other
international body.
3. The committee also has the right to issue general comments on the interpretation and usage of different
Articles. This authority has been given to the committee under Article 40.
4. Under Article 41 of the ICCPR, one State party may submit to the committee that another State party is
not fulfilling its obligations, under the covenant. This provision is only applicable when both countries
have recognized the competence of the committee in this arena.

Main provisions

Article 1, 2

Right to Physical Integrity

Article 6, 7, 8,

Right to libery and security of a person

9, 10 , 11

Procedural fairness and rights of accused

14, 15, 16

Individual Liberties

12, 13, 17 18 19 20 21 and 22 23 24 26 27

Opinion protocols
There are two opinion Protocols to the Covenant. The first one established an individual complaints mechanism
allowing individuals to complain to the Human Rights Committee about violations of the Covenant. As of 2019,
there are 116 countries that are party to the first Protocol. The second opinion Protocol abolishes the death
penalty, however, it allows the States to implement death penalty for the most serious crimes of military nature,
committed during wartime. As of 2019, the second opinion Protocol has 87 parties.

India and the ICCPR

The body that regulates and protects human rights in India is the National Human Rights Commission ( NHRC).
For making a Treaty as binding in any particular State, it has to ratify the same, during this time any country can
also make some declarations. In this regard, India has also made certain declarations with respect to the ICCPR.

It has been stated by the government while ratifying the Treaty that Article 9 of the treaty works in consonance
with Article 22 of the Constitution of India, which provides for preventive and punitive detention laws. In this
regard, it has been explicated by the government that there is no enforceable right under the Indian legal systems
to provide compensation to victims of unlawful arrest. With respect to Article 13 of the ICCPR which prohibits
expulsion of resident aliens, the government of India reserves its right to apply its own domestic laws. India has
also complied with the principles of the ICCPR and established the National Human Rights Commission under
the Protection of Human Rights Act in the year 1993. The NHRC has wide ranging powers and all human rights
violation complaints can be made to the Commission itself. The Commission can send in recommendations to
courts with respect to human rights cases, and can take suo moto cognizance of these issues.

Conclusion

World War I & II left the world devastated, whether it be in terms of financial damage or human rights violation,
particularly in relation to prisoners of war. Post World War II, the United Nations was formed which tried to
reconcile the differences between countries and work towards a better future. Human rights are the very basis of
existence of all human beings, to be treated with dignity and to have basic rights are sacrosanct for the growth of
the human race. The Universal Declaration of Human Rights in 1948 formed the basis for a plethora of human
right laws to factor in, the most notable of which were the ICCPR and the ICESCR, both of these Treaties gave
way for rights that every person is bound to have irrespective of any and all of the factors. This article briefly
discussed one of those two Treaties in detail. It is deductible from this that the rights that are seen in the ICCPR
have also been formulated in India under Article 19 of the Indian Constitution. It provides for the Right to
speech and expression, assembly, association, movement, settlement, to practise any trade or profession and all
of these are also seen in the ICCPR.

Global Justice

The study of justice has been concerned with what we owe one another, what obligations we might have to treat
each other fairly in a range of domains, including over distributive and recognitional matters. Contemporary
political philosophers had focused their theorizing about justice almost exclusively within the state, but the last
twenty-five years or so has seen a marked extension to the global sphere, with a huge expansion in the array of
topics covered. While some, such as matters of just conduct in war, have long been of concern, others are more
recent and arise especially in the context of contemporary phenomena lik intensified globalization, economic
integration, and potentially catastrophic pandemics and anthropogenic climate change.

John Rawls’s seminal book The Law of Peoples initiated many debates about global justice (Rawls 1999).
Several questions soon became prominent in discussions including: What principles should guide international
action? What responsibilities do we have to the global poor? Should global inequality be morally troubling? Are
there types of non-liberal people who should be tolerated? What kind of foreign policy is consistent with liberal
values? Is a “realistic utopia” possible in the global domain? How might we transition effectively towards a less
unjust world?

Contemporary events also played an enormous role in prompting philosophical inquiries. Prominent cases of
genocide, ethnic cleansing, forms of terrorism uncommon prior to 2001, intensified interest in immigration to
affluent countries, increased dependence on the labor of those from low-income countries, and enormous threats
to well-being, security and the environment became common catalysts for further work. Philosophers began to
reflect on questions such as: Is it ever permissible to engage in coercive military action for humanitarian
purposes, such as to halt genocide or prevent large-scale violations of human rights? Can terrorism ever be
justified? Should affluent countries open their borders more generously than they currently do to those from
low-income countries who would like to immigrate to them? Are our current global economic arrangements fair
ones and if not, how should they be transformed? What responsibilities do we have to one another in a
globalized, post-Westphalian world order? How should we allocate responsibilities for reducing global injustice
in our world, such as in the case of distributing costs associated with addressing climate change?

Global and International Justice

A distinction is often drawn between global and international justice. The key point of difference between these
two notions involves clarifying the entities among which justice is sought. In international justice the nation or
state is taken as the central entity of concern and justice among nations or states is the focus. In the domain of
global justice, by contrast, theorists do not seek primarily to define justice between states or nations. Rather they
drill down through the state shell and inquire about what justice requires among human beings. Global justice
inquiries take individual human beings as of primary concern and seek to give an account of what fairness
among such agents involves.

What is a Theory of Global Justice?

In general, a theory of global justice aims to give us an account of what justice on a global scale consists in

and this often includes discussion of the following components:

1. identifying what should count as important problems of global justice

2. positing solutions to each identified problem
3. identifying who might have responsibilities in addressing the target problem
4. arguing for positions about what particular agents (or collections of agents) ought to do in
connection with solving each problem and
5. providing a normative view which grounds (1)–(4).

Theories of global justice aim to help us understand our world better and what our responsibilities are in it.
While some theorists aim purely at theoretical understanding, others hope also to provide an analysis that can be
useful in practical policy making concerning global justice matters. So, in general, a problem is one of global
justice when the problem either affects agents resident in more than

one state or the problem is unresolvable without their co-operation. For the problem to be considered genuinely
global rather than regional it should affect more than one regional area.

Rawls’ theory

John Rawls was a firm opposer of utilitarianism, which held the view that just or fair actions are the ones that
bring the greatest amount of good for the greatest number. He condemned utilitarianism because he opined that
it paves the way for governments to function in ways that bring happiness to a majority but ignore the wishes
and rights of a minority.

Rawls’ theory of justice is largely influenced by the Social Contract Theory as interpreted by Immanuel Kant,
another political philosopher. A social contract is a hypothetical agreement between the government and the
people governed that defines their rights and duties. Kant interpreted the social contract as one which is
unanimously accepted and agreed upon by all the people, and not just a particular group. So, as for Kant, a
society under a social contract is a society based on moral laws.

Rawls was a political liberal, which is why he emphasised the need for a state that is neutral between the various
perspectives of values. He calls his conception “justice as fairness.” He argues that if all the people in society
come together to make collective principles of governing themselves, the outcome would be the rules that are
influenced by only certain sections of people. This is because a variety of people exist in society; they may be
rich, poor, educated, uneducated, etc. People of such variety are bound to have differences in their opinions and
interests. These differences would eventually give birth to a situation wherein justice is compromised to satisfy
the interests of the influential sections of people. Ultimately, justice is not achieved.

Trying to figure out ways to achieve justice for all, Rawls proposed a hypothetical scenario where a group of
people ignorant of their or others’ social, economic, physical, or mental factors come together to make laws for
themselves. The idea behind this hypothecation is that under such a circumstance, everyone will be virtually
equal. Rule-making will not be influenced by the self-centred desires of particular sections of society. Then,
there will be no hierarchy in the bargaining power within the collective idea of justice. Under this state, there
will also be equal sharing of burdens and benefits among all. So, the theory of justice proposed by Rawls
advocates for a system of rule-making that ignores the social, economic, physical, or mental factors that
differentiate the people in society.

Objective of the theory

The very purpose of Rawls introducing the theory of justice was to find a way to create a well-ordered society.
According to him, a well-ordered society should predominantly have the following two elements:

 It should be designed to advance the good of its members and effectively regulated by a public
conception of justice;
 It should be a society wherein all people accept and know that all other people accept the same
principles of justice and that the basic social institutions satisfy those principles.

Now, to create a well-ordered society, Rawls calls to envisage ourselves as a group of competent moral
judges, able to decide between conflicting moral and political ideals from the perspective of reasonableness and
impartiality. This enabling is facilitated by two hypothetical devices – the original position and veil of
ignorance.

Sources of IL

1. Introduction

Where does international law come from and how is it made ? These are more difficult questions than one might
expect and require considerable care. In particular, it is dangerous to try to transfer ideas from national legal
systems to the very different context of international law. There is no “Code of International Law”. International
law has no Parliament and nothing that can really be described as legislation. While there is an International
Court of Justice and a range of specialised international courts and tribunals, their jurisdiction is critically
dependent upon the consent of States and they lack what can properly be described as a compulsory jurisdiction
of the kind possessed by national courts. The result is that international law is made largely on a decentralised
basis by the actions of the 192 States which make up the international community. The Statute of the ICJ, Art.
38 identifies five sources:- (a) Treaties between States; (b) Customary international law derived from the
practice of States; (c) General principles of law recognized by civilised nations; and, as subsidiary means for the
determination of rules of international law: (d) Judicial decisions and the writings of “the most highly qualified
publicists”.

This list is no longer thought to be complete but it provides a useful starting point.

2. Customary International Law

It is convenient to start with customary law as this is both the oldest source and the one which generates rules
binding on all States. Customary law is not a written source. A rule of customary law, e.g., requiring States to
grant immunity to a visiting Head of State, is said to have two elements. First, there must be widespread and
consistent State practice – ie States must, in general, have a practice of according immunity to a visiting Head of
State. Secondly, there has to be what is called “opinio juris”, usually translated as “a belief in legal obligation; ie
States must accord immunity because they believe they have a legal duty to do so. As the ICJ has put it:-

‘Not only must the acts concerned be a settled practice, but they must also be such, or be carried out in such a
way, as to be evidence of a belief that this practice is rendered obligatory by the existence of a rule requiring it.
… The States concerned must feel that they are conforming to what amounts to a legal obligation.’ (North Sea
Continental Shelf cases, ICJ Reps, 1969, p. 3 at 44)

A new rule of customary international law cannot be created unless both of these elements are present. Practice
alone is not enough – see, e.g., the Case of the SS Lotus (1927). Nor can a rule be created by opinio juris
without actual practice – see, e.g., the Advisory Opinion on Nuclear Weapons (1996).
But these elements require closer examination. So far as practice is concerned, this includes not just the practice
of the government of a State but also of its courts and parliament. It includes what States say as well as what
they do. Also practice needs to be carefully examined for what it actually says about law. The fact that some
(perhaps many) States practise torture does not mean that there is not a sufficient practice outlawing it. To quote
from the ICJ’s decision in the Nicaragua case:

‘In order to deduce the existence of customary rules, the Court deems it sufficient that the conduct of States
should in general be consistent with such a rule; and that instances of State conduct inconsistent with a given
rule should generally have been treated as breaches of that rule, not as indications of the recognition of a new
rule.’ (ICJ in Nicaragua ICJ Reps, 1986, p. 3 at 98.)

Regarding opinio juris, the normal definition of a belief in obligation (see, e.g., the North Sea Continental Shelf
cases (1969) above) is not entirely satisfactory. First, it ignores the fact that many rules are permissive (eg
regarding sovereignty over the continental shelf), for which the real opinio juris is a belief not in obligation but
in right. Secondly, and more fundamentally, there is something artificial in talking of the beliefs of a State. It
might be better to consider opinio juris as the assertion of a legal right or the acknowledgment of a legal
obligation.

Once there is sufficient practice together with opinio juris, a new rule of custom will emerge. Subject only to
what is known as the “persistent objector” principle the new rule binds all States. The persistent objector
principle allows a State which has persistently rejected a new rule even before it emerged as such to avoid its
application.

3. Treaties

Treaties (sometimes called agreements, conventions, exchanges of notes or protocols) between States – or
sometimes between States and international organizations – are the other main source of law. Strictly speaking a
treaty is not a source of law so much as a source of obligation under law. Treaties are binding only on States
which become parties to them and the choice of whether or not to become party to a treaty is entirely one for the
State – there is no requirement to sign up to a treaty. Why is a treaty binding on those States which have become
parties to it ? The answer is that there is a rule of customary international law – pacta sunt servanda – which
requires all States to honour their treaties. That is why treaties are more accurately described as sources of
obligation under law.

But many treaties are also important as authoritative statements of customary law. A treaty which is freely
negotiated between a large number of States is often regarded as writing down what were previously unwritten
rules of customary law. That is obviously the case where a treaty provision is intended to be codificatory of the
existing law. A good example is the

Vienna Convention on the Law of Treaties, 1969. Less than half the States in the world are parties to it but every
court which has considered the matter has treated its main provisions as codifying customary law and has
therefore treated them as applying to all States whether they are parties to the Convention or not. In theory,
where a treaty provision codifies a rule of customary law the source of law is the original practice and opinio
juris – the treaty provision is merely evidence. But that overlooks the fact that writing down a rule which was
previously unwritten changes that rule. From that time on, it is the written provision to which everyone will look
and debates about the extent of the rule will largely revolve around the interpretation of the text rather than an
analysis of the underlying practice.

Moreover, even where a treaty provision is not intended to be codificatory but rather is an innovation designed
to change the rule, it can become part of customary law if it is accepted in practice. See, e.g., the North Sea
Continental Shelf cases (1969):

‘Although the passage of only a short period of time is not necessarily, or of itself, a bar to the formation of a
new rule of customary international law on the basis of what was originally a purely conventional rule, an
indispensable requirement would be that within the period in question, short though it might be, State practice,
including that of States whose interests are specially affected, should have been both extensive and virtually
uniform in the sense of the provision invoked; - and should moreover have occurred in such a way as to show a
general recognition that a rule of law or legal obligation is involved.’ (ICJ Reps, 1969, p. 43)
 In reality the fact of a large number of States agreeing upon a treaty provision is itself an important piece of
State practice. If those and other States subsequently apply the treaty provision – especially where they are not
parties to the treaty – then it can quickly become part of customary international law. This consideration has led
some writers to distinguish between “traités contrats” (contractual treaties) which are only agreements between
the parties and traités lois (law-making treaties). In my view this confuses rather than assists. All treaties are
contractual as between their parties. But some also have an effect on the general law. In practice, it has been
through the adoption of numerous treaties on different areas of international law (war, terrorism, diplomacy,
treaty-making) that international law has undergone its most important changes in the years since 1945.

5. General Principles

While treaties and custom are the most important sources of international law, the others mentioned in Article 38
of the ICJ Statute of the ICJ should not be ignored. General principles of law recognized by civilised nations –
the third source – are seldom mentioned in judgments. They are most often employed where the ICJ or another
international tribunal wants to adopt a concept such as the legal personality of corporations (eg in the Barcelona
Traction Co. case (1970)) which is widely accepted in national legal systems. But international law seldom
adopts in its entirety a legal concept from a particular national legal system; instead the search is for a principle
which in one form or another is recognized in a wide range of national legal systems.

6. Judicial Decisions

Article 38(1)(d) refers to judicial decisions as a subsidiary means for the determination of rules of law. In
contrast to the position in common law countries, there is no doctrine of binding precedent in international law.
Indeed, the Statute of the ICJ expressly provides that a decision of the Court is not binding on anyone except the
partiers to the case in which that decision is given and even then only in respect of that particular case (Article
59). Nevertheless, the ICJ refers frequently to its own past decisions and most international tribunals make use
of past cases as a guide to the content of international law, so it would be a mistake to assume that “subsidiary”
indicated a lack of importance.

Article 38(1)(d) does not distinguish between decisions of international and national courts. The former are
generally considered the more authoritative evidence of international law on most topics (though not those
which are more commonly handled by national courts, such as the law on sovereign immunity). But decisions of
a State’s courts are a part of the practice of that State and can therefore contribute directly to the formation of
customary international law.

6. Writings The writings of international lawyers may also be a persuasive guide to the content of international
law but they are not themselves creative of law and there is a danger in taking an isolated passage from a book
or article and assuming without more that it accurately reflects the content of international law.

7. Other Sources The list of sources in Article 38 of the Statute is frequently criticised for being incomplete. In
particular, it makes no mention of the acts of the different organs of the United Nations. Today there can be no
doubting the importance of those acts in shaping international law, although they perhaps fit within the system
of Article 38 better than is sometimes imagined. The United Nations General Assembly has no power to
legislate for the international community; its resolutions are not legally binding. However, many of those
resolutions have an important effect on the law-making process. Some resolutions are part of the treatymaking
process, attaching a treaty text negotiated in the framework of the United Nations and recommended to the
Member States by the Assembly (this was the case with the Convention against Torture). While it is the treaty
which creates the legal obligation – and then only for the States which choose to become party to it – the
importance of the United Nations in the process of creating that treaty should not be underestimated.

In addition, as I have already mentioned, the positions which States take in the United Nations is part of their
practice and a resolution (or sequence of resolutions) which commands a sufficiently widespread acceptance and
which is regarded by the States as embodying a rule of international law can have an important effect on the
development of customary international law, so long as it is not contradicted by what States actually do
elsewhere (see, e.g., the discussion of the resolutions on nuclear weapons in the Advisory Opinion on Nuclear
Weapons (1996)). The studies of international law produced by the International Law Commission for the
General Assembly, especially if adopted by the Assembly, may also have an important effect on customary
international law, even if they are not turned into treaties (the ILC Articles on State Responsibility adopted in
2001 are a good example). The position of the Security Council is somewhat different. Decisions taken by the
Council under Chapter VII of the Charter and framed in mandatory terms are legally binding on all States
(Article 25 of the Charter). Moreover, under Article 103 of the Charter the duty to carry out a decision of the
Council prevails over obligations under all other international agreements (see the Lockerbie cases (1992)).
However, the Council does not create new laws but rather obligations in relation to specific issues and it is not a
legislature (see the decision of the ICTY in Tadic (1995))

7. A Hierarchy of Norms ?

A controversial question is whether there is a hierarchy of norms in international law. Article 38 makes no
reference to such a hierarchy but it is possible to discern elements of a hierarchy in certain respects. It is now
generally acknowledged that a few rules of international law are of such fundamental importance that they have
the status of jus cogens, that is peremptory norms from which no derogation is permitted. Whereas States can
always agree to depart (as between themselves) from ordinary rules of customary international law, they are not
free to depart from or vary a rule of jus cogens. Thus, a treaty which conflicts with a jus cogens rule is void
(Vienna Convention on the Law of Treaties, 1969, Article 53) and such a rule will prevail over inconsistent rules
of customary international law. However, it is important to bear in mind that (a) there are very few rules which
possess the status of jus cogens (e.g. the prohibitions of aggression, genocide, torture and slavery) and the
criteria for achieving such status are strict – near universal acceptance not merely as a rule but as a rule from
which no derogation is permitted; (b) cases of conflict are very rare and the suggestion that such a conflict exists
should be carefully scrutinised (see, e.g. the rejection both by the ICJ – Arrest Warrant case (2002) – and the
English courts – Jones v. Saudi Arabia (2006) – of the suggestion that the law on sovereign immunity conflicted
with the prohibition of torture). A treaty prevails over customary law as between the parties to the treaty but a
treaty will not affect the rights of States not party to that treaty. There is, therefore, no strict sense of hierarchy
between treaty and customary law, contrary to what is sometimes alleged.

Making and History of IL

Definition and scope

According to Bentham’s classic definition, international law is a collection of rules governing relations between
states. It is a mark of how far international law has evolved that this original definition omits individuals
and international organizations—two of the most dynamic and vital elements of modern international law.
Furthermore, it is no longer accurate to view international law as simply a collection of rules; rather, it is a
rapidly developing complex of rules and influential—though not directly binding—principles, practices, and
assertions coupled with increasingly sophisticated structures and processes. In its broadest sense, international
law provides normative guidelines as well as methods, mechanisms, and a common conceptual language to
international actors—i.e., primarily sovereign states but also increasingly international organizations and some
individuals. The range of subjects and actors directly concerned with international law has widened
considerably, moving beyond the classical questions of war, peace, and diplomacy to include human rights,
economic and trade issues, space law, and international organizations. Although international law is a legal
order and not an ethical one, it has been influenced significantly by ethical principles and concerns, particularly
in the sphere of human rights.

International law is distinct from international comity, which comprises legally nonbinding practices adopted by
states for reasons of courtesy (e.g., the saluting of the flags of foreign warships at sea). In addition, the study of
international law, or public international law, is distinguished from the field of conflict of laws, or private
international law, which is concerned with the rules of municipal law—as international lawyers term the
domestic law of states—of different countries where foreign elements are involved.

International law is an independent system of law existing outside the legal orders of particular states. It differs
from domestic legal systems in a number of respects. For example, although the United Nations (UN) General
Assembly, which consists of representatives of some 190 countries, has the outward appearances of a
legislature, it has no power to issue binding laws. Rather, its resolutions serve only as recommendations—except
in specific cases and for certain purposes within the UN system, such as determining the UN budget, admitting
new members of the UN, and, with the involvement of the Security Council, electing new judges to
the International Court of Justice (ICJ). Also, there is no system of courts with comprehensive jurisdiction in
international law. The ICJ’s jurisdiction in contentious cases is founded upon the consent of the particular states
involved. There is no international police force or comprehensive system of law enforcement, and there also is
no supreme executive authority. The UN Security Council may authorize the use of force to compel states to
comply with its decisions, but only in specific and limited circumstances; essentially, there must be a prior act
of aggression or the threat of such an act. Moreover, any such enforcement action can be vetoed by any of the
council’s five permanent members (China, France, Russia, the United Kingdom, and the United States). Because
there is no standing UN military, the forces involved must be assembled from member states on an ad hoc basis.

International law is a distinctive part of the general structure of international relations. In contemplating
responses to a particular international situation, states usually consider relevant international laws. Although
considerable attention is invariably focused on violations of international law, states generally are careful to
ensure that their actions conform to the rules and principles of international law, because acting otherwise would
be regarded negatively by the international community. The rules of international law are rarely enforced by
military means or even by the use of economic sanctions. Instead, the system is sustained by reciprocity or a
sense of enlightened self-interest. States that breach international rules suffer a decline in credibility that
may prejudice them in future relations with other states. Thus, a violation of a treaty by one state to its
advantage may induce other states to breach other treaties and thereby cause harm to the original violator.
Furthermore, it is generally realized that consistent rule violations would jeopardize the value that the system
brings to the community of states, international organizations, and other actors. This value consists in the
certainty, predictability, and sense of common purpose in international affairs that derives from the existence of
a set of rules accepted by all international actors. International law also provides a framework and a set of
procedures for international interaction, as well as a common set of concepts for understanding it.

Historical development

International law reflects the establishment and subsequent modification of a world system founded almost
exclusively on the notion that independent sovereign states are the only relevant actors in the international
system. The essential structure of international law was mapped out during the European Renaissance, though
its origins lay deep in history and can be traced to cooperative agreements between peoples in the ancient
Middle East. Among the earliest of these agreements were a treaty between the rulers of Lagash and Umma (in
the area of Mesopotamia) in approximately 2100 BCE and an agreement between the Egyptian pharaoh Ramses
II and Hattusilis III, the king of the Hittites, concluded in 1258 BCE. A number of pacts were subsequently
negotiated by various Middle Eastern empires. The long and rich cultural traditions of ancient Israel, the Indian
subcontinent, and China were also vital in the development of international law. In addition, basic notions of
governance, of political relations, and of the interaction of independent units provided by ancient Greek political
philosophy and the relations between the Greek city-states constituted important sources for the evolution of the
international legal system.

Many of the concepts that today underpin the international legal order were established during the Roman
Empire. The jus gentium (Latin: “law of nations”), for example, was invented by the Romans to govern the
status of foreigners and the relations between foreigners and Roman citizens. In accord with the Greek concept
of natural law, which they adopted, the Romans conceived of the jus gentium as having universal application. In
the Middle Ages, the concept of natural law, infused with religious principles through the writings of the Jewish
philosopher Moses Maimonides (1135–1204) and the theologian St. Thomas Aquinas (1224/25–1274), became
the intellectual foundation of the new discipline of the law of nations, regarded as that part of natural law that
applied to the relations between sovereign states.

After the collapse of the western Roman Empire in the 5th century CE, Europe suffered from frequent warring
for nearly 500 years. Eventually, a group of nation-states emerged, and a number of supranational sets of rules
were developed to govern interstate relations, including canon law, the law merchant (which governed trade),
and various codes of maritime law—e.g., the 12th-century Rolls of Oléron, named for an island off the west
coast of France, and the Laws of Wisby (Visby), the seat of the Hanseatic League until 1361. In the 15th century
the arrival of Greek scholars in Europe from the collapsing Byzantine Empire and the introduction of
the printing press spurred the development of scientific, humanistic, and individualist thought, while the
expansion of ocean navigation by European explorers spread European norms throughout the world and
broadened the intellectual and geographic horizons of western Europe. The subsequent consolidation of
European states with increasing wealth and ambitions, coupled with the growth in trade, necessitated the
establishment of a set of rules to regulate their relations. In the 16th century the concept of sovereignty provided
a basis for the entrenchment of power in the person of the king and was later transformed into a principle
of collective sovereignty as the divine right of kings gave way constitutionally to parliamentary or representative
forms of government. Sovereignty also acquired an external meaning, referring to independence within a system
of competing nation-states.

Early writers who dealt with questions of governance and relations between nations included the Italian
lawyers Bartolo da Sassoferrato (1313/14–1357), regarded as the founder of the modern study of private
international law, and Baldo degli Ubaldi (1327–1400), a famed teacher, papal adviser, and authority on Roman
and feudal law. The essence of the new approach, however, can be more directly traced to the philosophers of
the Spanish Golden Age of the 16th and 17th centuries. Both Francisco de Vitoria (1486–1546), who was
particularly concerned with the treatment of the indigenous peoples of South America by the conquering
Spanish forces, and Francisco Suárez (1548–1617) emphasized that international law was founded upon the law
of nature. In 1598 Italian jurist Alberico Gentili (1552–1608), considered the originator of the secular school of
thought in international law, published De jure belli libri tres (1598; Three Books on the Law of War), which
contained a comprehensive discussion of the laws of war and treaties. Gentili’s work initiated a transformation
of the law of nature from a theological concept to a concept of secular philosophy founded on reason. The Dutch
jurist Hugo Grotius (1583–1645) has influenced the development of the field to an extent unequaled by any
other theorist, though his reputation as the father of international law has perhaps been exaggerated. Grotius
excised theology from international law and organized it into a comprehensive system, especially in De Jure
Belli ac Pacis (1625; On the Law of War and Peace). Grotius emphasized the freedom of the high seas,
a notion that rapidly gained acceptance among the northern European powers that were embarking upon
extensive missions of exploration and colonization around the world.

The scholars who followed Grotius can be grouped into two schools, the naturalists and the positivists. The
former camp included the German jurist Samuel von Pufendorf (1632–94), who stressed the supremacy of the
law of nature. In contrast, positivist writers, such as Richard Zouche (1590–1661) in England and Cornelis van
Bynkershoek (1673–1743) in the Netherlands, emphasized the actual practice of contemporary states over
concepts derived from biblical sources, Greek thought, or Roman law. These new writings also focused greater
attention on the law of peace and the conduct of interstate relations than on the law of war, as the focus of
international law shifted away from the conditions necessary to justify the resort to force in order to deal with
increasingly sophisticated interstate relations in areas such as the law of the sea and commercial treaties. The
positivist school made use of the new scientific method and was in that respect consistent with the empiricist
and inductive approach to philosophy that was then gaining acceptance in Europe. Elements of both positivism
and natural law appear in the works of the German philosopher Christian Wolff (1679–1754) and the Swiss
jurist Emerich de Vattel (1714–67), both of whom attempted to develop an approach that avoided the extremes
of each school. During the 18th century, the naturalist school was gradually eclipsed by the positivist tradition,
though, at the same time, the concept of natural rights—which played a prominent role in the American and
French revolutions—was becoming a vital element in international politics. In international law, however, the
concept of natural rights had only marginal significance until the 20th century.

Positivism’s influence peaked during the expansionist and industrial 19th century, when the notion of state
sovereignty was buttressed by the ideas of exclusive domestic jurisdiction and nonintervention in the affairs of
other states—ideas that had been spread throughout the world by the European imperial powers. In the 20th
century, however, positivism’s dominance in international law was undermined by the impact of two world
wars, the resulting growth of international organizations—e.g., the League of Nations, founded in 1919, and
the UN, founded in 1945—and the increasing importance of human rights. Having become geographically
international through the colonial expansion of the European powers, international law became truly
international in the first decades after World War II, when decolonization resulted in the establishment of scores
of newly independent states. The varying political and economic interests and needs of these states, along with
their diverse cultural backgrounds, infused the hitherto European-dominated principles and practices of
international law with new influences.

The development of international law—both its rules and its institutions—is inevitably shaped by international
political events. From the end of World War II until the 1990s, most events that threatened international peace
and security were connected to the Cold War between the Soviet Union and its allies and the U.S.-led
Western alliance. The UN Security Council was unable to function as intended, because resolutions proposed by
one side were likely to be vetoed by the other. The bipolar system of alliances prompted the development of
regional organizations—e.g., the Warsaw Pact organized by the Soviet Union and the North Atlantic Treaty
Organization (NATO) established by the United States—and encouraged the proliferation of conflicts on
the peripheries of the two blocs, including in Korea, Vietnam, and Berlin. Furthermore, the development of
norms for protecting human rights proceeded unevenly, slowed by sharp ideological divisions.

The Cold War also gave rise to the coalescence of a group of nonaligned and often newly decolonized states, the
so-called “Third World,” whose support was eagerly sought by both the United States and the Soviet Union. The
developing world’s increased prominence focused attention upon the interests of those states, particularly as
they related to decolonization, racial discrimination, and economic aid. It also fostered greater universalism in
international politics and international law. The ICJ’s statute, for example, declared that the organization of the
court must reflect the main forms of civilization and the principal legal systems of the world. Similarly, an
informal agreement among members of the UN requires that nonpermanent seats on the Security Council be
apportioned to ensure equitable regional representation; 5 of the 10 seats have regularly gone to Africa or Asia,
two to Latin America, and the remainder to Europe or other states. Other UN organs are structured in a similar
fashion.

The collapse of the Soviet Union and the end of the Cold War in the early 1990s increased political cooperation
between the United States and Russia and their allies across the Northern Hemisphere, but tensions also
increased between states of the north and those of the south, especially on issues such as trade, human rights,
and the law of the sea. Technology and globalization—the rapidly escalating growth in the international
movement in goods, services, currency, information, and persons—also became significant forces, spurring
international cooperation and somewhat reducing the ideological barriers that divided the world,
though globalization also led to increasing trade tensions between allies such as the United States and
the European Union (EU).

Since the 1980s, globalization has increased the number and sphere of influence of international and regional
organizations and required the expansion of international law to cover the rights and obligations of these actors.
Because of its complexity and the sheer number of actors it affects, new international law is now frequently
created through processes that require near-universal consensus. In the area of the environment, for example,
bilateral negotiations have been supplemented—and in some cases replaced—by multilateral ones, transmuting
the process of individual state consent into community acceptance. Various environmental agreements and
the Law of the Sea treaty (1982) have been negotiated through this consensus-building process. International
law as a system is complex. Although in principle it is “horizontal,” in the sense of being founded upon the
concept of the equality of states—one of the basic principles of international law—in reality some states
continue to be more important than others in creating and maintaining international law.