An Introduction to Rethinking International Law

The title of this course is Rethinking International Law, and the title is a very good place for us to start. The first question we'll begin with is what does it mean to rethink international law? We obviously have three words here rethinking, international, and law. We can break it down even further. Re and We have inter and national and law. We try to define these terms individually. Thinking. Thinking involves an application of the mind, acts of cognition. It's the instance of trying to know or perceive something. Inter is also an easy one. Inter simply means between. Well next we have national. National is a little more complicated. When we use the word national, we usually imply that it's of or pertaining to the nation-state, the nation-state or a large body of people, a particular territory. Sometimes there will be allusions to a common culture, a common language. Next we have law. Law also is a little more complex. We can think of law in terms of regulations. These will involve forms, processes, institutions that are tied to a political state. We can think of law as meaning, type of normative order that is tied to specific communities. We can think of law as a social phenomenon. We can also think of law as a form of consent or a social contract that binds all members of a particular community, the rules by which we agree to cohabitate. Law can also be seen as an instrument of control or coercion. And finally we have the read. Prefix simply means, again, kind of do over. The implications might be that we have a certain ambivalence to the way we've done things in the past. Perhaps we've developed higher expectations. Perhaps we have a sincere belief in the potential of international law and we feel that what we have today doesn't quite capture what it is that we're trying to achieve. There are other implications as well of the use of this prefix, the use of this prefix before the word thinking. Some of the other implications are that this is not a restructuring or a remaking. Because this is not a restructuring or remaking of international law, we seem to be suggesting that there is the possibility of building on the past. Whether this is to capitalize on some of the strengths of the international legal system as it exists or simply to avoid past mistakes. If we string all of these interpretations together, the definitions provided for these individual terms, we might come up with something like this. Feeling a certain ambivalence, we elect to apply our minds again and differently to the corpus of regulations, meanings, cultures, norms that organize relations between bodies of people. Now this seems a little more satisfactory than simply the title, Rethinking International Law. Well it seems more satisfactory, but of course there is something of a but. If we take it a little further, we see that there are a number of terms that require some unpacking. Some of the words that stand out are feeling, minds, and meanings. Feelings, minds, and meanings imply a form of subjectivity. In contrast to this subjectivity, we also have a corpus of regulations. I say in contrast, for a corpus of regulation infers objectivity. The phrase provided then seems to distinguish between objective and subjective knowledge with both possessing relevance and value. Two more layered terms remain, cultures and people. Now applying the notion of culture to knowledge, we observe variations in understandings of subjectivity and objectivity. So if we were to apply culture to language, we can use a simple expression, the term lucked out. Now depending on which part of the world one comes from, the term lucked out can either mean one is lucky, but it can also mean that one has run out of luck, the exact opposite. We can also apply culture to knowledge. For instance, the European understanding of equality, primarily formal, is very different from the African understanding of equality, which is situated within a community and therefore primarily substantive. The categories we operate with, whether objective or subjective, thus appear to be loose or open to contestation. With this in mind then, we can qualify this phrase even further. Feeling a certain ambivalence, we elect to apply our minds, again indifferently to the corpus of regulations, meanings, cultures, norms that organize relations between bodies of people. Our aim is to explore objective and subjective knowledges as they pertain to the international legal corpus while accounting for the cultural nuances in our interpretation. Now the concept of rethinking international law seems to be taking shape. It does, however, beg another question. Why? Why engage in this exercise of rethinking international law? As I said earlier, the prefix re- highlights the interest in a different path, but a different path towards what? This is where different agendas or even different moralities emerge. I, for instance, undertake this exercise because I'm particularly concerned with the continued subservience of the third world to the first and what I perceive as the failure of international law to redress the subject-object relationship established during the colonial era. Law, of course, is not the sole source of the problem, but as history demonstrates, it is possible to use law as a means of pursuing different normative orders. Education is an important phase in the continuum of international law and one, I believe, whose potential has yet to be capitalized upon, hence my contribution to this project, to this exercise of rethinking international law by offering this course. To me, and this will be discussed in greater detail throughout the course, the purpose of education is to change and improve things. In this particular instance, to change and improve the practice of international law. A question you might consider is why did you register for this course and what are you hoping to gain from it? I'd like to conclude this clip by providing you with a brief overview of the variety of topics that will be covered throughout the course, all of which I believe are interrelated and create a cohesive whole. We begin with an exploration of education, a legal education, and most specifically international legal education. Reflecting on education provides students with a better grasp of the purpose of this exercise. Next, we consider the history of international law, commencing with its embryonic moment, colonization. In this instance, we see how European outer state law came to form the foundation of the law of nations. Following this, we move on to another critical moment, decolonization struggles, where attempts were made by the third world to shed the colonial yoke. These attempts were made both militarily and legally. Decolonization leads us into the development gap. What is development? Is a difference in development what separates the first and third world? What role has law played in reforming or exacerbating this gap? Of course, a development gap is indicative of inequality, inequality within the global system. Should international law challenge or seek to redress global inequality? This is an important question that we will consider during week six. During week seven, we tackle the pink elephant, power. International law is often derisively described as little more than real politique. Is there truth to this assertion? Is power the end-all and be-all of the international legal system? Following this, we move on to ideology. Is capitalism an ideology? Is liberalism an ideology? What about third-worldism? What about international law? How does ideology fit into the international legal project? After ideology, we move into trade, and with good reason. Trade figures front and center in most international legal deliberations, with the inference that most problems we face can be resolved by simply increasing the amount of trade. Of course, the trade narrative has not gone unchallenged. For instance, free trade has been challenged by fair trade. Now, whether colonialism or capitalism or liberalism or any of these other systems of social organization, none of these projects have gone unchallenged. How does international law handle resistance, whether this resistance is in the form of illegal activities or in the form of extra-legal activities? One way that resistance has manifested is through regionalization, and during week 11, we look at alternate international legal projects. What do these alternatives look like? How are they different? Our final two weeks are dedicated to the future of international law. Roughly 11 weeks are spent rethinking international law, and the final two are no different, with emphasis being placed on what a future international legal regime might look like. First, we will consider the place of democracy in international lawmaking. Can it, or even should it, be more democratic? Second, recognizing the multi-polarity of the world, whether it be in terms of culture or ideology or aspirations, a question that we consider is how we account for global diversity in what is effectively a standardizing project. And it is at this point that the course ends. But before the course ends, it must begin. And like any exercise or any project, it begins with a premise. The premise of this course is that the artifice of international law as a state-centric institution appears to be fading. How might a people-centric approach change both the meaning and machinery of international law? This is the starting point of our rethink of international law.