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T H E H I S T O RY A N D T H E O RY O F
I N T E R NAT IO NA L L AW
General Editors
NE HAL BHUTA
Chair in International Law, University of Edinburgh
ANTHONY PAGDEN
Distinguished Professor, University of California Los Angeles
BE NJAMI N ST R AUMAN N
Alberico Gentili Senior Fellow, New York University School of Law
In the past few decades the understanding of the relationship between nations
has undergone a radical transformation. The role of the traditional nation-
state is diminishing, along with many of the traditional vocabularies which
were once used to describe what has been called, ever since Jeremy Bentham
coined the phrase in 1780, ‘international law’. The older boundaries between
states are growing ever more fluid, new conceptions and new languages have
emerged which are slowly coming to replace the image of a world of sovereign
independent nation states which has dominated the study of international
relations since the early nineteenth century. This redefinition of the international
arena demands a new understanding of classical and contemporary questions
in international and legal theory. It is the editors’ conviction that the best way
to achieve this is by bridging the traditional divide between international legal
theory, intellectual history, and legal and political history. The aim of the series,
therefore, is to provide a forum for historical studies, from classical antiquity to
the twenty-first century, that are theoretically-informed and for philosophical
work that is historically conscious, in the hope that a new vision of the rapidly
evolving international world, its past and its possible future, may emerge.
Assistant Editor
M A X H . MAYE R
1
3
Great Clarendon Street, Oxford, OX2 6DP,
United Kingdom
Oxford University Press is a department of the University of Oxford.
It furthers the University’s objective of excellence in research, scholarship,
and education by publishing worldwide. Oxford is a registered trade mark of
Oxford University Press in the UK and in certain other countries
© The Several Contributors 2019
The moral rights of the authors have been asserted
First Edition published in 2019
Impression: 1
All rights reserved. No part of this publication may be reproduced, stored in
a retrieval system, or transmitted, in any form or by any means, without the
prior permission in writing of Oxford University Press, or as expressly permitted
by law, by licence or under terms agreed with the appropriate reprographics
rights organization. Enquiries concerning reproduction outside the scope of the
above should be sent to the Rights Department, Oxford University Press, at the
address above
You must not circulate this work in any other form
and you must impose this same condition on any acquirer
Crown copyright material is reproduced under Class Licence
Number C01P0000148 with the permission of OPSI
and the Queen’s Printer for Scotland
Published in the United States of America by Oxford University Press
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Library of Congress Control Number: 2019941484
ISBN 978–0–19–884963–6
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Links to third party websites are provided by Oxford in good faith and
for information only. Oxford disclaims any responsibility for the materials
contained in any third party website referenced in this work.
Series Editor’s Preface
In a recent essay, noted intellectual historian Samuel Moyn observes that in the
explosion of recent work in the history of international law, the ‘historiograph-
ical interest in the continuity of [international law’s] imperial entanglements’ has
dwarfed the examination of the period of the ‘decolonization of international law’
that took place between 1950 and 1970.1 The eighteenth and nineteenth century
transformations of a European public law in to a universal legal order had, as Hegel
well-understood, entailed the subordination and incorporation of vast numbers
of peoples not-yet-able to conform to the political and social mores of European
public law, into empires.2 But between 1950 and 1970, an epoch-making trans-
formation of international society took place: several intercontinental empires dis-
solved into dozens of new nation-states, at the outset through violent and often
brutal conflicts between colonizer and colonized,3 and then by a rapid ‘delegitim-
ization of any kind of political rule that is experienced as a subjugation’ of a popula-
tion by alien occupants.4 The result, as Jörg Fisch observes, was that while hitherto
trusteeship and colonial domination in international law had been seen as serving
the advancement of progress, ‘Colonial domination was [made] illegitimate per se
and therefore had to be eliminated as quickly as possible . . . now colonialism pre-
vented the development of colonial peoples’.5 Between 1945 and 1965, sixty-seven
new states were admitted as members of the United Nations (UN), transforming
its membership from overwhelmingly western and European to Asian, African,
and Latin American by a substantial majority. In 1960 alone, seventeen new states
joined the UN, sixteen from Africa.
The result of this revolution in the membership of the society of states had im-
mense consequences for the content of international law. Jansen and Osterhammel
note that decolonization challenged the ‘conceptual underpinnings of the
1 Samuel Moyn, ‘The High Tide of Anti-colonial Legalism,’ Journal of the History of International
1991), 367–371.
3 Famously accounted for in Hegelian and psychoanalytic terms as a negation of a negation, by
Frantz Fanon. Fanon, The Wretched of the Earth: ‘Decolonization is the meeting of two forces, opposed
to each other by their very nature, which in fact owe their originality to that sort of substantification
which results from and is nourished by the situation in the colonies. . . . Decolonization is the verit-
able creation of new men. But this creation owes nothing of its legitimacy to any supernatural power;
the ‘thing’ which has been colonized becomes man during the same process by which it frees itself.’
(Farrington, trans. Grove Press, New York, 1963) 36–37.
4 Jan C Jansen and Jürgen Osterhammel, Decolonization: A Short History (Princeton, 2017), 1–2.
5 Jörg Fisch, The Right of Self-Determination of Peoples: The Domestication of an Illusion (Anita Mage,
6
Jansen and Osterhammel, 153.
7
Ibid.
8 AdomGetachew, Worldmaking after Empire—The Rise and Fall of Self-Determination (Princeton,
2019) 3.
9 George S Williamson, ‘Retracing the Sattelzeit: Thoughts on the Historiography of the French
Revolutionary and Napoleonic Eras,’ Central European History 51 (2018) 66–74, 68.
10 UpendraBaxi, ‘Some Remarks on Eurocentrism and the Law of Nations’ in RP Anand, ed, Asian
common heritage of human kind, acquired rights, jus ad bellum and permanent
sovereignty over natural resources, and institutions such as the ICJ and the World
Bank. The picture which emerges is necessarily incomplete, as this impressive
volume of collected essays represents an important starting point for a whole new
oeuvre of history that begins to pull more determinedly at specific threads of the
stories that are gathered together here. One implication is clear, though: the period
1950 to 1970, which was at once the epoch of Cold War and decolonization, was
anything but a hiatus of international law making.12 It was,if anything, a period of
surprising anticipation of the potential to forge a new global order of economic and
political justice, within and through an international legal order of co-existence
and cooperation: sovereign equality and non-intervention were to be buttressed,
and go hand in hand, with state-led economic development and an international-
ized welfarism epitomized in the plan for a New International Economic Order.13
Oddly, this quite-recent past seems in many ways stranger to us than earlier
epochs—such as the early modern European contexts of the reinvention of the jus
gentium and the jus naturale, the historiography of which is more established. As
Moyn suggests in his essay mentioned above, less than seventy years after decol-
onization began to gather force and speed, it now requires some effort to recover
the intelligibility of the hopes and illusions that characterized the ‘long transition
from imperial to cosmopolitan dreams.’14 This could be because, as Dann and von
Bernstorff as well as Moyn point out, the dreams of an egalitarian post-colonial
order in global law and politics steadily retreated, not due to a re-embrace of direct
imperial and colonial rule, but through a radical recasting of both former imperial
and postcolonial states’ relationship to economic governance.15 But the legal and
political concepts of Dann and von Bernstorff ’s international legal Sattelzeit re-
main very much part of our experience of the international legal order, even as they
appear now the subject of a new and more centripetal battle over their content and
order-giving possibilities. If we are to have a chance of grasping what is at stake in
the present contestation, we need to better understand the battles that went before.
Nehal Bhuta
Edinburgh
July 2019
12 On the critique of Cold War as hiatus, see: Matt Craven, Sundhya Pahuja, and Gerry Simpson,
‘Reading and Unreading: Historiographies of Hiatus’, in Craven, Pahuja and Simpson (eds) International
Law and the Cold War (Cambridge University Press, 2019).
13 See the special issue of Humanity on ‘The New International Economic Order,’ Volume 6, Issue 1
(2015).
14 Moyn, ‘The High Tide of Anti-colonial legalism’, p 7.
15 See now the new locus classicus, Quinn Slobodan, The Globalists: The End of Empire and the Birth
AA Afro-Asian
AD Anno Domini
AFROSEC Afro-Asian Organization for Economic Cooperation
AIDS Acquired Immune Deficiency Syndrome
AJIL American Journal of International Law
ANC African National Congress
ARAMCO Arabian American Oil Company
ASSR Autonomous Socialist Soviet Republic
BIS Bank for International Settlements
BIT Bilateral Investment Treaty
BSAC British South Africa Company
CDDH Notification system of the Conférence Diplomatique sur la Réaffirmation et
le développement du Droit International Humanitaire Applicable dans les
Conflits Armés
CEPAL Comisión Económica para América Latina y el Caribe
CERD United Nations Committee for the Elimination of Racial Discrimination
CHM Common Heritage of Mankind
CIA Central Intelligence Agency
CSCE Conference on Security and Cooperation in Europe
CTC Counter-Terrorism Committee
DoS Department of State
ECLAC Economic Commission for Latin America and the Caribbean
ECOSOC United Nations Economic and Social Council
EEC European Economic Community
EJIL European Journal of International Law
EPTA Expanded Programme for Technical Assistance
ESC European Social Charter
EU European Union
FCN treaty Treaty of Friendship, Commerce and Navigation
FFI French Forces of the Interior
FLN Front de Libération Nationale
G77 Group of 77
GA General Assembly
GATT General Agreement on Tariffs and Trade
GDP Gross Domestic Product
GEP Group of Eminent Persons
GNP Gross National Product
HIV Human Immunodeficiency Virus
IBRD International Bank for Reconstruction and Development
xvi List of Abbreviations
I. Introduction
On 14 December 1960, five years after the Bandung Conference, the UN General
Assembly (UNGA) with an overwhelming majority of 89 votes did ‘solemnly
proclaim(s) the necessity of bringing to a speedy and unconditional end coloni-
alism in all its forms and manifestations’.1 No state voted against the resolution, but
all of the still-existing colonial powers, including the US, abstained. By the mid-
1970s more than two-thirds of the world’s population lived in ‘newly independent
states’ having emerged from the former Western and Asian Empires, increasing
the absolute number of states dramatically from fifty-one in 1945 to 144 in 1975.2
This meant not just a numerical change. Instead, the decolonization era came with
a fundamental challenge to (legalized) Western hegemony through a new vision of
the institutional environment and political economy of the world. It is during this
era, which arguably was couched between classic European imperialism and a new
form of US-led Western hegemony, that fundamental legal debates took place over
a new international legal order for a decolonized world. In fact, this book argues
that this era presents, in essence, a battle that was fought out by diplomats, law-
yers, and scholars, particularly over the premises and principles of international
law. In a moment of relative weakness of European powers, ‘newly independent
states’, and international lawyers from the South fundamentally challenged trad-
itional Western perceptions of international legal structures.
In the words of George Abi-Saab, who himself became a protagonist in this en-
deavour, the third world rejected
the traditional view staunchly held in Western quarters, that a new State is born
in a legal universe that binds it, newly independent Third World States started
1 Declaration of the Granting of Independence to Colonial Countries and Peoples, UNGA Res 1514
(XV) (14 December 1960) UN Doc A/RES/1514(XV); for the voting record, see UN Doc A/PV.947,
GAOR 15th Session, 1273–74.
2 See ‘Growth in United Nations Membership, 1945– present’ <https://
www.un.org/ en/
sections/
member-states/growth-united-nations-membership-1945-present/index.html> accessed 6 August 2019.
Jochen von Bernstorff and Philipp Dann, The Battle for International Law: An Introduction In: The Battle for
International Law: South-North Perspectives on the Decolonization Era. Edited by: Jochen von Bernstorff and
Philipp Dann, Oxford University Press (2019). © The Several Contributors.
DOI: 10.1093/oso/9780198849636.003.0001
2 Jochen von Bernstorff and Philipp Dann
3 Georges Abi- Saab, ‘The Third World Intellectual in Praxis: Confrontation, Participation, or
Operation Behind Enemy Lines?’ (2016) 37 Third World Quarterly 1957, 1958–59.
4 Gerrit W Gong, The Standard of Civilization in International Society (Clarendon Press 1984);
Antony Anghie, Imperialism, Sovereignty and the Making of International Law (CUP 2008) ch 2 and 3,
especially pp 109–10 and 182–94 (hereafter Anghie, Imperialism).
5 On these voices, see the contributions to this volume in Part II. A.
The Battle for International Law 3
and to govern the relationship between peoples and human beings on this globe
beyond the existing Western order, which they rejected, claiming that the new par-
ticipants could not be bound by a system created without them—or even with the
apparent intention of subjugating them. Other protagonists wanted the third world
to ‘enter’ the existing discursive structures based on the concept of equal state-
sovereignty, taking a (sometimes more, sometimes less radical) reformist approach
to the concepts, rules, and principles traditionally subsumed under the term inter-
national law by the centre.
These voices pulled various sites and fields into the discursive battle that was
international law—fields as diverse as were the main protagonists and their strat-
egies: negotiations on new fundamental multilateral treaties6 were turned into
battle-sites. In addition, central concepts of existing international law such as sov-
ereignty, non-intervention, and self-determination, as well as the main tenets of
international economic law, were subject to significant controversy within and out-
side of the United Nations (UN).7
These debates and their third-world international legal protagonists, as well as
the new embattled concepts, have often been portrayed as a short-lived Southern
or socialist (Cold War-) revolt within UNGA with ultimately minor and negli-
gible implications for international law and legal scholarship. As the contribu-
tions to this volume show, nothing could be more mistaken. Not only that the
outcome of this battle has fundamentally shaped what we presently conceive of
as international legal structures. With hindsight, we hold that international legal
structures in many areas of international relations have been transformed during
this era, albeit with the effect of enabling a transition from classic European im-
perialism to new forms of US-led Western hegemony. The underlying aspirations,
strategies, and failures of this battle thus are of vital importance for any future
project aiming to address and alter the relationship between international law
and fundamental inequalities in this world.8 In that sense, this volume attempts
to provide an intellectual history of the transformation of international law in
the 1950s to 1970s and to offer a better understanding of the contestations to the
then-dominant perceptions of order. By doing so it aims to give the reader a better
grasp of how the world became what it is today by new historical insights into the
conditions, contingencies, and necessities of what led to its current depressing
and desolate state. The remainder of this introduction proceeds in three steps.
Section II provides a broader context of the ‘decolonization era’, the aspirations,
6 For example, the two international human rights covenants, the Vienna Convention on the Law of
Treaties, the Vienna Conventions on State Succession, the UN Convention on the Law of the Sea, and
the two Additional Protocols to the Geneva Conventions.
7 On different fields of battle, see the contributions to this volume in Part I.
8 See Nils Gilman, ‘The New International Economic Order: A Re-Introduction’ (2015) Humanity
1 (who wonders how it came that an agenda that was seen in its time as necessary and fundamental is
today almost forgotten or rejected as unrealistic).
4 Jochen von Bernstorff and Philipp Dann
and challenges shaping the battle for international law during this time. Section
III introduces the central battle fields. Finally, Section IV looks at the protagonists
of battle, that is, authors and scholarly landscapes in which they were set, as well
as institutions (III.).
1. 1950s–1970s as Sattelzeit
The dominant narrative stresses the years of 1945 and 1989 as major turning points
in the history of the global order and international law. We want to offer an alter-
native reading, highlighting the changes that begin to occur in the early 1950s as a
transformative phase leading into what is called the ‘decolonization era’—a period
of time situated between the end of post-1885 European imperialism in the mid-
1950s and the beginning of unipolar US hegemony in international relations of
the 1980s and 1990s.9 With this periodization, we argue for an alternative and less
Eurocentric perspective on the history of international law.10
The third world quest for formal independence first culminated as a conscious
and concerted ‘trans- civilizational’ movement with the Afro- Asian Bandung
Conference in 195511 and lasted roughly until the mid-1970s with the Declaration
on the New International Economic Order. It opened a new chapter in world his-
tory. It marked the end of classic European-led imperialism that had crystallized
in the Berlin conference of 1885, when only fourteen Western states had carved up
Africa without any Asian or African participation, but continued during the nego-
tiations of the UN Charter in 1945, when mere eleven out of fifty-one negotiating
states came from Africa or Asia. The post-Bandung era marked the moment in
which international law, for the first time, could claim to constitute a universal legal
order at least in a formal and geographical sense.12 Beginning in 1966, sixty-one
states from Africa or Asia constituted a majority within the UNGA, in which ‘most
of the world’ (as Partha Chatterjee aptly put it13) were at least formally represented.
and perspectives. Oliver Diggelman, ‘The Periodization of the History of International Law’ in Bardo
Fassbender and Anne Peters (eds) Oxford Handbook on History of International Law (OUP 2012) 997;
see also Pahuja and Saunders, Chapter 6, this volume.
10 Pahuja and Saunders (this volume) write: ‘Periodization is always an argument, never a fact’.
11 Luis Eslava, Michael Fakhri and Vasuki Nesiah, ‘Introduction’ in Luis Eslava, Michael Fakhri and
Vasuki Nesiah (eds) Bandung, History and International Law: Critical Pasts and Pending Futures (CUP
2018) (hereafter Eslava et al., ‘Introduction’); Onuma Yasuaki, A Transcivilizational Perspective on
International Law: Questioning Prevalent Cognitive Frameworks in the Emerging Multi-Polar and Multi-
Civilizational World of the Twenty-First Century (Hague Academy of International Law 2010).
12 Eslava et al., ‘Introduction’ (n 11).
13 Partha Chatterjee, Politics of the Governed: Reflections on Popular Politics in most of the World
The three decades between the early 1950s and late 1970s connect the end of
‘classic’ European imperialism with the long rise of US dominance in international
relations and a specific model of global capitalism, which was often called ‘neo-
imperialism’ or ‘neo-colonialism’ by critical contemporary voices.14 One could
understand these years according to Koselleck’s Sattelzeit concept15—the bridging
of two different forms of global Western dominance—a transitional phase in
which fundamental concepts of international law were re-imagined, politicized,
and transformed. These debates were also influenced by the ideological and mili-
tary rivalry between the US, the USSR, and China, often referred to as the Cold
War. The threat of a nuclear stand-off between the US and the Soviet Union es-
pecially shaped popular and scholarly perceptions of international politics during
this time, masking to an important degree the continuous rise of US economic,
political, and cultural dominance in the world. According to Koselleck, such a
transitional phase is marked by a change of meaning of ‘constitutive’ political and
legal concepts. Through politicizing, contesting, and defending the content of nor-
mative structures, the politico-legal fabric is transformed and then subsists over
time in a new historical era.16 As to international law between the 1950s and 1970s
these battles over meaning and new content of rules were the result of the collapse
of European imperialism; at the surface, they played out in legal debates around
doctrinally recognized ‘sources’ of international law—in new legislative projects
through multilateral conventions, in disputes over changing customary law, and in
discursive battles over the meaning of general principles of international law. At the
same time, these discursive battles represented deeper challenges and politizations
of entrenched post-1885 international legal structures and normative assump-
tions, such as the pervasive standard of civilization and assumed racial hierarchies.
While the third world’s battle for a new international law succeeded in abolishing
central discursive structures created by European imperialism, it ultimately could
not prevent new forms of Western domination from being established, which, in
that sense, are a product of the battle for international law. Western governments
and international lawyers managed in a classic hegemonic move to translate the
discursive rifts created by the Third-World attacks into reforms and processes of
restructuration, again portraying Western interests in a new world of formally in-
dependent states as universal interests.17 International legal discourse and the in-
herent conservative bias of law as ingrained social practice was used by Western
actors to counter requested revolutionary innovations as incompatible with the
14 Kwame Nkrumah, Neo-Colonialism: The Last Stage of Imperialism (International Publishers 1965).
15 Reinhart Koselleck, ‘Einleitung’, in Otto Brunner, Werner Conze and Reinhart Koselleck (eds),
Geschichtliche Grundbegriffe, vol 1 (Klett-Cotta 1994) XV.
16 ibid.
17 Ernesto Laclau, ‘Identity and Hegemony: The Role of Universality in the Constitution of Political
Logics’ in Judith Butler, Ernesto Laclau and Slavoj Zizek, Contingency, Hegemony and Universality:
Contemporary Dialogues on the Left (Verso 2000) 44.
6 Jochen von Bernstorff and Philipp Dann
18 Bernstorff this volume; on ‘conservative or status quo-oriented choices’ in international legal prac-
Theoretical Approach to Policy Analysis’ (2018) 40 Administrative Theory and Praxis, relying on
Laclau’s concept of ‘social heterogeneity; Ernesto Laclau, On Populist Reason (Verso 2005) 139–56.
20 Von Bernstorff Chapter 2, this volume.
21 Pahuja and Saunders Chapter 6, this volume.
22 Craven Chapter 4, this volume, referring to Carl Schmitt’s Nomos of the Earth.
23 Sornarajah Chapter 7, this volume.
24 Dann Chapter 12, this volume.
25 Joge Esquirol, ‘Latin America’, in Bardo Fassbender and Anne Peters (eds), The Oxford Handbook
of International Law (OUP 2012); Arnulf Becker Lorca, Mestizo International Law (CUP 2014) (here-
after Becker Lorca, Mestizo International Law).
The Battle for International Law 7
ripe for universal application.26 In contrast to Lenin’s The Right of Nations to Self-
Determination (1914), during the Peace Conference Wilson explicitly stated that
‘it was not within the privilege of the conference of peace to act upon the right of
self-determination of any peoples except those which had been included in the ter-
ritories of the defeated empires’.27
As Mitchell and Massad demonstrate, Wilson`s approach to self-determination
before and during the Peace Conference was not only a selective one but also had
managed to turn Lenin’s anti-colonial understanding of self-determination into
an ambivalent concept that could be used for stabilizing and normalizing colo-
nial relationships.28 Of his famous fourteen points, the fifth promised ‘a free, open
minded, and absolutely impartial adjustment of all colonial claims, based upon a
strict observance of the principle that in determining all such questions of sov-
ereignty the interests of the populations concerned must have equal weight with
the equitable government whose tile is to be determined’. The idea to introduce a
balancing test between native ‘interests’ or consent and the interests of the colon-
izer acting as a trustee of ‘civilization’ had its roots in the 1885 Berlin Conference,
where the US pushed for legitimation of territorial control through formalized
agreements with native ‘chiefs’.
During the Peace Conference it was the highly influential Jan Smuts, a South
African politician and adviser to both the United Kingdom (UK) and the United
States (US) government, who managed to convince Wilson to create a man-
date system along these lines. Independence was an issue only for fully ‘civilized’
peoples—for all other populations consent and paternalistic consideration of local
interests sufficed. Smuts helped to amalgamate the concept of self-determination
with the older quest of white settler colonies for ‘self-rule’ and independence vis-
a-vis the metropole within larger imperial structures.29 Both for settler colonies
and for direct forms of colonialism, the formal consent of local rulers, repre-
senting ‘communities’ usually set up by the colonizers for this very purpose, was
supposed to strengthen the legitimacy of the colonial project.30 When local con-
sent was clearly absent, balancing between the interests of ‘civilization’ represented
by the colonizer (or white settlers) and local resistance would, in the eyes of most
Western international lawyers, inevitably tilt towards the colonizer. Additionally,
both world organizations institutionalized supervisory structures for mandates
26 Erez Manela, The Wilsonian Moment: Self- Determination and the International Origins of
Anticolonial Nationalism (OUP 2009); see also Barsalou and Bowring this volume.
27 On the reception of Lenin’s and Wilson’s diverging concepts: Joseph Massad, ‘Against- Self-
Determination’ (2018) 9 Humanity (hereafter Massad, ‘Against Self-Determination’).
28 ibid; see also Timothy Mitchell, Carbon Democracy: Political Power in the Age of Oil (Verso 2013)
in order to legitimize empire, Susan Pedersen, The Guardians: The Legend of Nations and the Crisis of
Empire (OUP 2017) 109.
8 Jochen von Bernstorff and Philipp Dann
(League of Nations) and trust territories (UN) in their founding documents, based
on that same balancing logic shying away from a radical break with the colonial
era.31 It found its expression in the mandate or trusteeship concept as such, which
presupposes that the colonized still need the colonizer to gradually lead them to
a higher Western state of ‘civilization’, which will then allow for self-rule and in-
dependence. In that sense, self-determination as used by European jurists had a
different and much more flexible meaning in the colonial context than it had in an
intra-European one, where, over the course of the nineteenth century, it had be-
come an ‘all or nothing’ discursive vehicle of nation building and the quest for im-
mediate and fully independent statehood. As applied in the peripheries of the great
powers, the concept thus came with a normalizing internal structure inscribed by
the standard of civilization. One of the legacies of the Bandung Conference and
GA-Resolution 1514 is bringing into disrepute the normalizing dimension of the
concept of self-determination in the colonial context, and in doing so, substan-
tively transforming twentieth-century international legal structures.
Couched between phases of Western dominance, the battle for international
law was shaped by a growing momentum and optimism by Third-World protag-
onists and contemporaries about ‘decolonization’ and its potential. At the begin-
ning, under the leadership of politicians like Jawaharlal Nehru (India), Gamal
Abdel Nasser (Egypt), Kwame Nkrumah (Ghana), Josip Broz Tito (Yugoslavia),
and Sukarno (Indonesia), the third world seemed relatively united in its attempt
to occupy a space of neutrality in the Cold War’s ideological confrontation.32 The
non-aligned movement as it emerged right after the Bandung conference was a self-
confident counterproposal to the existing structure of international relations and
their legal underpinnings. The widely shared experience of colonial subjugation
and liberation was turned into a new ideal of international relations that rejected
interventionism, exploitation, and racism—and demanded the respect for equality,
non-interference, non-violent solution of conflicts, and material solidarity. The
foundation of the UN Conference for Trade and Development (UNCTAD) was
meant to further institutionalize this cooperative quest for a joint international
agenda beyond the bloc confrontation. With the 1960 UNGA Resolution 1514 on
‘the granting of Independence to Colonial Countries and Peoples’, the group of
newly independent countries had already shown its growing assertiveness in using
the UN as platform. There was also an increased willingness to create institutional
structures for their demands. Against this background, the soon widely popular
notion of third world, as coined by Alfred Sauvy, the French journalist and an-
thropologist, captured much of this idea. In reference to Abbe Sieyes’s notion of
31 Mark Mazower, No Enchanted Palace: The End of Empire and the Ideological Origins of the United
(OUP 2013) 1; Khan, Group of 77, MPEPIL (2011) para 5; Vijay Prashad, The Darker Nations: A People’s
History of Third World (The New Press 2008).
The Battle for International Law 9
the third estate in the context of the French revolution, the notion expressed the
self-understanding of the newly independent governments to represent the ma-
jority of states and people in the world and the demand that this world’s democratic
majority should not just be recognized in its position, but also granted its effective
rights as democratic majority. It was not a hierarchical notion in the sense of the
‘also-ran’ third (behind the first and the second) world, but the proud emancipative
voice of the democratic majority.
At the same time, the (post-Bandung) decolonization movement in many ways
continued earlier struggles of the Latin American states, the Ottoman Empire,
China, and other non-Western states for full recognition of the principles of formal
equality and non-intervention. Their early twentieth-century struggles for inde-
pendent statehood and against unequal treaties, gunboat diplomacy, extraterri-
torial jurisdiction, corporate exploitation, and institutional under-representation
in many ways served as blueprints for the third world before and after decolon-
ization.33 These early twentieth-century struggles for full inclusion into—and
modification of—nineteenth century European international law also had made it
virtually impossible for the Europeans to infinitely defer formal decolonization in
Africa and Asia. Already within the League of Nations, references to civilizational
superiority as a justification for colonial rule had increasingly become discredited
as an official argument.34 The gradual demise of the standard of civilization as a
widely shared official European doctrine in the 1930s prepared the ground for
the non-discrimination clause in the UN Charter and the fight against ‘racialism’
proclaimed in Bandung in 1955. According to scholars of the third world, racism
was not only tolerated by international legal structures, but also by a constitutive
element of nineteenth-century international law:
International law was imbedded with white racism and thus promoted the
interests of the whites while rigorously subordinating those of others. White
racial discrimination was thus a fundamental element of international law during
the period in question.35