Americanisation of International Law
West Bengal National University of Juridical Sciences; United Nations Interregional Crime and Justice Research Institute
November 20, 2010
The study of America’s dominance in the legal realm today assumes special relevance in the study of Development of International Laws in the 21st century. The development of laws, today in the 21st century differs greatly from the preceding times, as this era embodies the existence of a world characterized with the phenomenon of Globalization or more particularly that of Americanisation. In other words, this era lies essentially different from a world of Colonialism, existing in the 19th and 20th century, during which the ideas of International Law were set forth concretely. In the words of Ugo Matteei this is “primarily because in the ages of colonialism political battles for international power were mostly carried on with an open use of force and political violence (in such a way that final extensive conflict between superpowers was unavoidable), whereas in the age of globalization and of economic Empire, political violence has been transformed into legal violence.” This legal violence has ensued primarily because countries today, seek to impose their view of a just law in a globalized regime so as to have the force of authority over other countries, as mandatory compliance with international norms has assumed much significance today. In other words International law has become the principal language in which domination is being expressed in the era of globalisation.
The ways in which the patterns of law have been historically exported can be captured within a variety of models. A first model is that of direct imperialistic/colonial rule, or imposition of legal patterns by military force, as it happened during times of military conquest i.e. the Napoleonic Code imposed in Belgium; McArthur's reforms in post-World War II Japan, and so forth. An easy example of the United States falling in this model would be the democratization of Islamic countries like Iraq and Afghanistan in it’s “War against Terror.”
A second model of exporting laws is by imposing one’s legal conceptions by bargaining, so as to get one’s legal model accepted by means of a subtle blackmail. Targeted countries are persuaded to change the law according to Western standards so that they get access to the international market and remain economically viable. History offers examples of this model in China, Japan, and Egypt early in the last century, and today, this is the most important way in which the World Bank, International Monetary Fund, World Trade Organization, and European Union operate through the developing and former socialist world. The United States does not fall as an exception to the perpetrator of this model. An illustration to the usage of such a model of bargaining by the United States can be seen in bilateral investment treaties favouring the standard of compensation in accordance with the Hull formula rather than on lines suggested by the Calvo doctrine. The Hull formula, it is worth mentioning, is a legal concept significantly American in nature.
A third model, constructed as fully consensual, has been presented as diffusion by prestige, focusing on a deliberate process of institutional admiration that leads to the reception of law by the subject states. In other words through hegemony. A clear enunciation of this model would be the incorporation of Article 51 in the Law of Sea Convention, 1982, in which the acceptability of an American interpretation of the rights of Archipelagic States is well exemplified.
The study of Americanization of International Laws, which is achieved through the above mentioned models, is important because during the last ten years, the refinement of imperialistic and hegemonic aspects of American law on the global scenario has been unprecedented. The pre-emptory strikes in Kosovo and Iraq have raised the importance of International Law and issues concerning its definition and violation to an unparalleled scale. Debates have now arisen on the standard of legality of acts being adopted by countries acting on behalf of the world, that are seemingly in violation of International Law. The legitimacy of the new imposed law is being questioned on grounds of Cultural Relativism. The question raised in the previous era, of what is International Law is not being discussed now; rather what is being questioned now is the consensual aspect of International Law. Who has drafted these laws or how have they come into existence is the question haunting the legal minds and common folk alike especially those who are being imposed to the ‘new’ laws in the name of globalisation. This paper is an attempt at addressing these questions.
Number of Pages in PDF File: 40
Keywords: International Law, TWAIL, Critical Legal Studiesworking papers series
Date posted: November 21, 2010
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