The challenge of the NIEO in the debate on international distributive justice Overcoming the false necessities of the international order

THE CHALLENGE OF THE NIEO IN THE DEBATE ON

INTERNATIONAL DISTRIBUTIVE JUSTICE

Elisabetta Carrubba

12797928

International and European Law: Public International Law Supervisor: Geraldo Vidigal

Submitted on 19 June 2020

ABSTRACT

This thesis moves from the idea that much of the discourse on international distributive justice, that is, a fairer distribution of wealth and resources among countries, is haunted by a false necessity, namely that distributive justice is structurally incompatible with the international order.

This thesis explores the debate on international distributive justice, using the philosophy of Jhon Rawls as its starting point. It aims at assessing w the ways in which the mainstream approach to international distributive justice is replicated in international legal structure and in what way it hinders the realisation of substantive justice. Finally, it seeks to evaluate the New International Economic Order (NIEO) as a comprehensive project of international – as opposed to global - distributive justice and the extent to which it was able to challenge the ‘false necessity’ of an international legal order unresponsive to distributive concerns.

The NIEO, which was inspired by postcolonial theory, had a clear aspiration which in essence was social justice among trading countries and it rested on a thesis: that the international order was asymmetrical and international law, by failing to address that asymmetry, was complacent to the perpetuation of unsustainable levels of inequality. The potential of the NIEO rested in the fact that rather than adopting a destructive stance towards international law it aimed at exposing how those structures of domination were perpetuated by international law and what fixes could be adopted to transcend the imperialist quality of the law.

Similarly, it shows us is that the idea of international justice, which was then appropriated by philosophers who conceptualised it in projects of cosmopolitan global justice, has in truth a strong political origin which was directly inspired by the global South. The NIEO was the first extensive project in international relations and international law to elevate egalitarian distributive justice to a worldwide scale.

T

ABLE OF

C

ONTENTS

INTRODUCTION... 3

THE RELATIONSHIP BETWEEN LAW AND JUSTICE ... 6

1. Justice as an instrument of critical evaluation ... 6

2. Rawlsian Theory of Distributive Justice ... 7

3. False necessities: International Distributive Justice and the International Order ... 8

DISTRIBUTIVE JUSTICE IN THE INTERNATIONAL LEGAL ORDER ... 13

1. Sovereignty ... 13

2. Efficiency as the measure for distribution ... 16

3. Human rights as basic needs ... 19

THE NEW INTERNATIONAL ECONOMIC ORDER ... 23

1. The ideological basis of the New International Economic Order ... 24

2. The strategy of the NIEO and its approach to international law structures ... 27

a. equity ... 29

b. right to development ... 31

INTRODUCTION

International economic law has been faithful to its mission of “lifting all boats”, mainly through global trade and financial liberalisation. The number of people living in extreme poverty has decreased globallyand yet not even poverty reduction has been evenly distributed among countries. In the East Asia and Pacific region, the number of millions of people living below the international poverty line has decreased from 1239 in 1981 to 158 in 2018, but in Sub-Saharan Africa it has gone up from 279 million in 1990 to 419 million in 20151. It is thus not surprising that downward trends

in poverty have largely been driven by China’s and East Asia’s industrialisation2. In 2017, new

estimates suggested that 8 men owned more than half of the world combined3. The world today is

characterised by unprecedented levels of wealth concentration and intra-state inequality but also by increasing inter-state inequality between the developed and the developing world.

We have all know that “there is no alternative”, but was there really no alternative? Claims of necessity can have a constitutive effect in the evolution of social structures, and a legitimising one in discourses about social structures. When Unger wrote False Necessity, he intended his work to be a program for social reconstruction, by showing “how to carry forward the radical project of freeing our practical and passionate dealings from the constraints imposed upon them by entrenched social roles and hierarchies”4. False necessities are the constraints that allow social hierarchies to survive

and outlive change as they create the illusion that present order is the only possible order. This thesis moves from the idea that much of the discourse on international distributive justice, that is, a fairer distribution of wealth and resources among countries, is haunted by a false necessity, namely that it is structurally incompatible with the international order. The present thesis seeks to evaluate the New International Economic Order (NIEO) as a comprehensive project of international distributive justice

1 Data retrieved from the World Bank Poverty and Equity Data Portal. Keeping into account the population growth in both regions, poverty has experienced a decline of 13% in relation to the whole of the population from 1990 to 2015 in Sub-Saharan Africa. East-Asia has instead experienced a decline of 60% from 1990 to 2018 in poverty rates.

2 Carolina Sanchez, ‘From local to global: China’s role in global poverty reduction and the future of development’ (World Bank Taobao Village Summit, 7 December 2017)

3 Oxfam, ‘An Economy for the 99%’, Briefing Paper (15 January 2017)

4 Roberto Mangabeira Unger, False Necessity: Anti-Necessitarian Social Theory in The Service of Radical

and the extent to which it was able to challenge the ‘false necessity’ of an international legal order unresponsive to distributive concerns.

The starting point for exploring the debate on international distributive justice is the philosophy of Jhon Rawls. Expressing the mainstream view of the international order, Rawls rejected the possibility of extending his theory of justice to the international level. Attempts to overcome Rawls’s theory abandoned the mainstream and statist view of the international order, instead favour a cosmopolitan theory of justice, rejecting inter-state obligations in favour of obligations of a global character. Against this, the NIEO constitutes the most comprehensive project of inter-state economic justice, offering insights in how the debate on international justice was theorised within a statist framework. The NIEO adopted a political stance, arguing that it is social and material inequality that prevents existing structures of international law from delivering fair distributive results. Scholars of the NIEO argued for giving practical value to the principles of justice that already existed in the current system and worked at changing the perspective through which we understand them. They sought to transform formal justice into substantive justice, not by changing the rules of the game, but by showing that for the game to function as it was meant to be, the world had to start from an equal footing. It was sovereignty and not principles of cosmopolitan justice that opened questions as to the deeper issues of economic sovereignty and a right to development, with a view of achieving a fairer international society.

The first chapter is theoretical in nature. It deals with the claim that the absence of an appropriate international structure from which standards of justice can be derived makes it impossible to appraise the law from a moral perspective. The problem of extending Rawls’s difference principle – the main source of his theory of domestic justice – to the international level as it clashes with the very structure of international law is exhaled to investigate the place of distributive justice within a statist and mainstream view of the international order. For Rawls, an institutional conception of justice is ill suited in a system that lacks a sufficiently dense institutional apparatus such as international law, leading him to claim that distributive justice could play no part in the international legal order. Thus modern theorists who seek to devise theories of justice for a fairer international system, when faced with this incompatibility problem, conclude that the international legal order requires a structural and normative revolution in order to accommodate distributive justice.

The second chapter analyses the ways in which the mainstream approach to international distributive justice is replicated in international legal structure and in what way it hinders the realisation of substantive justice. Three aspects of the international order are identified, topical in understanding how the international deals with international inequality and what instruments it provides to remedy

it. These three aspects are: sovereignty, which structurally limits substantive justice to formal equality and consensus-based solutions; the highly market-oriented framework of international economic law, which provides a standard for distribution too concerned with aggregate growth rather than with a just allocation of economic benefits; and finally a minimal approach to human rights, which normatively limits the way international inequality is understood by focussing on cases of absolute rather than relative destitution.

The last chapter proposes a second typology for thinking about distributive justice in the international legal order, as exemplified by the New International Economic Order (NIEO) and that to date constitutes the most articulated attempt by the developing world to reform international law to bring about social and economic justice. The principle of “equity” and of a right to development were in particular exhaled as constituting the core of the “new” international system. Inequality was not understood as a market failure but as a condition that was created and that was perpetuated under the shield of the “neutrality” of international law. Their idea of justice was political insofar as it called for the idea of responsibility of the developed world in the underdevelopment of the third world.

THE

RELATIONSHIP

BETWEEN

LAW

AND

JUSTICE

1. J

While substantive justice is concerned with the way in which the law confers and distributes rights and obligations among different classes of agents, formal justice is concerned with the just application of legal rules to a class of persons regardless of the substantive content of those rules5.

As Hart shows, justice, from a legal perspective, is less contentious when it deals with injustices not in the substantive sense but in the formal one, and hence when it considers justice in relation to the applications of procedural standards6. Procedural standards are in fact prescribed by the law itself to

the point that a just application of the law amounts to the notion of “proceedings by law”. Namely, adherence to law is in itself just. Hobbes, for example, held that “the definition of injustice, is no other than the not performance of covenant. And whatsoever is not unjust, is just”7. This is a suitable

position to take if one wants to avoid the problematic issue of too closely associating law with an “ideological” position of what is substantively just8. As Lyons argues, the basic requirements of

formal justice “are supposed to be exempt from the controversy over substantive principles of justice and their possible justification”9. Yet, while formal justice is a necessary constituent part of a just

legal system10, focussing on it alone removes the critical potential from the idea of justice. “The idea

that justice consists in conformity to law then implies, on the one hand, that deviation from the law is always wrong, and, on the other hand, that no such justification could be based on the injustice of the law, since a law cannot be unjust”11.

It is specifically the fact that justice is primarily concerned with the ways in which classes of people are treated that makes it a fundamental instrument for the critical evaluation of the law itself, not only of its administration. When seen in this way, it is clear that the standard for justice cannot be derived

5 Hedley Bull. The anarchical society: a study of order in world politics. (Macmillan International Higher Education, 2012), 76

6 H. L. A. Hart, The concept of law. (Oxford: Clarendon Press, 1961), 160 7 Thomas Hobbes, Leviathan (1651) chapter XV, para 1-2

8 David Lyons, ‘On Formal Justice’ (1973) 58 Cornell L. Rev. 9 Ibid. 833

10 John Rawls, A Theory of Justice – Revised Edition (Cambridge: Harvard University Press, 1999). At p 51, he argues that “formal justice in the case of legal institutions is […] an aspect of the rule of law which supports and secures legitimate expectations”.

from the law itself12. The standard against which we criticise the law has to be independent of the

law. It thus follows however that the main problems when thinking about substantive justice is epistemological in nature. Namely, how can we devise a standard of justice that is universally true? Is justice an intrinsic characteristic of social institutions or should social institutions be subsumed to the objective of justice? For natural law, justice is an inherent virtue of all interpersonal relations13

and insofar as what is just or unjust is thought to be a universally true fact, justice lies beyond the scope of moral criticism But for theories of justice relying on an external standard of justice borrowed from moral and political philosophy - against which the existing legal regimes are then evaluated, whether the outcome is normatively defensible or not - will wholly depend on their moral premises. To be sure, both Rawls’ difference principle, discussed in the following section, and the principle of maximal utility, despite reaching different conclusions, make claims about the just standard against which the law should regulate the distribution of resources. And yet a tradition of philosophers has tried to remedy this moral relativism by devising an objectively defensible moral standard from which to deduce principles of justice that move beyond the a priori conception of justice of natural law.

2. R

T

D

J

The most accredited formulation of objective justice is found in Rawls’ Theory of Justice, grounded in the tradition of social contractarianism. Social contract theory and pre-contractarian natural law differ regarding the justification given to principles of justice. For pre-contractarians, such as Grotius, their legitimacy derived from natural law14. For contractarians such as Rawls, it is the insecurity of

those natural law entitlements which makes the contract the ultimate source of justice – whether natural rights pre-date the social contract or not is insignificant once they become socially accepted as positive facts. Rawls seeks to identify a neutral original position from which principles of justice can then be formulated but, unlike pre-contractarians, he takes as given the structure of modern societies to which such principles have to be applied. The starting point of his theory is not the state of nature but the modern state and its institutions. Justice corresponds to the “principles that free and rational persons concerned to further their own interests would accept in an initial position – known

12 Hart, The Concept of Law (n 6), 167

13 Francesco Fagiani, ‘Natural law and history in Locke's theory of distributive justice’ (1983) Topoi 2, 163

14 _{Janne Nijman, ‘Grotius’ Imago Dei Anthropology: Grounding Ius Naturae et Gentium’, in M. Koskenniemi et}

as the original position – of equality as defining the fundamental terms of their association”15. In the

original position, in order to reach a state of equality, the parties to the agreement are “made ignorant of their special resources and talents to prevent them from bargaining for principles that are inherently unfair because they favour some collection of resources and talents over others”16. Hence the original

position presupposes total equality, both material and of opportunity setting the ground for the two well-known Rawlsian principles of justice – namely the greatest equal liberty principle and, more importantly, the difference principle. The difference principle is an important source of substantive justice, in that it admits inequality only and insofar as it is at the advantage of the least advantaged or, as Rawls puts it, “injustice is tolerable only when it is necessary to avoid an even greater injustice”17. Rawls thus stated his second principle as follows:

Social and economic inequalities are to be arranged so that they are both (a) to the greatest expected benefit of the least advantaged and (b) attached to offices and positions open to all under conditions of fair equality of opportunity.

The “scientific” justice of Rawls thus aims at setting “an Archimedean point for assessing the social system without invoking a priori considerations”18.

3.

F

:

I

D

J

I

O

Interestingly, Rawls never considered that his theory of justice could produce the same effects internationally as it produced within the national boundaries. It was Charles Beitz who first argued that Rawls’ principles ought to apply globally as well.19. Rawls argued that if the original position

were to be replicated on an international plane “principles of justice between free and democratic peoples would include certain familiar principles long recognized as belonging to the law of peoples”, namely, formal equality, rules of war and of justifiable self-defence, non-intervention, the principle

15 Rawls, A Theory of Justice (n 10), 10

16 Ronald Dworkin, Taking Rights Seriously (Bloomsbury, 2013), 189 17 Rawls, A Theory of Justice (n 10)

18 Ibid, 231

of pacta sunt servanda and self-determination20. Visibly missing in Rawls’ international theory of

justice is any equivalent to the domestic difference principle - in Rawls’ view, concerns of economic inequality among nations or people would play no role in an international theory of justice21.

What accounts for such a radical different understanding? One of the most evident differences is that the two philosophers – Beitz and Rawls – base their claims on diverging premises regarding the structure and purpose of the international order and thus on the normative expectations of international law.

Rawls’ first claim is that justice is the first virtue of social institutions22. He thus rejects an

individualistic conception of justice and asserts that justice is a strictly social and institutional concept23. This means that claims to justice need to have a site and to be premised on the function

and the rules of the specific context in which they apply. In Rawls’ account, principles of justice are only applicable to the “basic structure of society”, namely the arrangement of the major political and social institutions of a well-ordered society24, in that it is the only structure which is sufficiently

ramified, coercive and effective to have a pervasive role in shaping people’s life expectations. The basic structure of society effectively determines who has access to what, hence it is necessary for that determination to be based on principles of justice25. In contrast, Rawls sees the global basic structure

in purely Wesphalian fashion, where peoples organised in states are economically self-sufficient and distributionally autonomous , so that, as Buchanan notes, the basic structure of the international, expressed through international law, “is nothing more than the set of rules stating the rights and duties of states” and agreed by the peoples themselves 26. As Freeman argues, it is this lack of an overarching

coercive system of laws at the international level which limits the scope of distributive justice. He argues that “what makes possible the incredibly complicated system of legal norms that underlie production, exchange, and consumption [at societal level] is a unified political system that specifies

20 John Rawls,‘The Law of Peoples’ (1993) Critical Inquiry 20(1)

21 Oisin Suttle, Distributive Justice and World Trade Law: A Political Theory of International Trade

Regulation (Cambridge University Press 2017), 40

22 Rawls, A Theory of Justice (n 10)

23 Sabrina Martin, ‘A non-ideal global basic structure’ (2016) Etikk I Praksis - Nordic Journal of Applied Ethics 10(2), 13

24 John Rawls" in Stanford Encyclopedia of Philosophy (25 March 2008). At: <https://plato.stanford.edu/entries/rawls/>

25 Rawls, A Theory of Justice (n 10)

these norms and revises them to meet changing conditions….Nothing comparable to the basic structure of society exists on the global level.”27

On the other side of the spectrum, Beitz argued that there indeed exists something comparable to the basic structure of society at the global level. He grounded his claims on evidence of increasing levels of economic and political interdependence transcending national boundaries and existing in the form of nonvoluntary relationships, thus beyond the scope of state consent which serves as a constitutional norm supporting the international legal order28. Moreover, Buchanan invokes the existence of

regional and international agreements such as GATT, NAFTA and the European Union and of global financial and legal institutions as proof of the existence of a global basic structure which has gone a long way from the loose Westphalian order assumed by Rawls29. In the global basic structure, the

pattern of interaction is sufficiently dense so as to effectively “assign fundamental rights and duties and shape the division of advantages that arise through social cooperation”30, constituting a proper

site for principles of justice. Moreover, he significantly moved away from Rawls in that he rejected the view of peoples as the proper subjects of international justice and argued that the individual should also be retained as the main subject of justice internationally. This position rests on a cosmopolitan rather than a statist understanding of the international order: it is concerned with global rather than international justice. It is not concerned with duties of justice that societies owe to each other but with duties of justice that are owed to individuals, simply by virtue of being part of a global community. Beitz thus overcame Rawls’ limitation by moving away from the anarchic understanding of international politics, founded on the independence of states regulating their behaviour through mutually agreed rules of international law31. By challenging statism as the main organising principle

of international relations, he was in fact challenging the very structure of international law.

The different interpretations of Rawls’ Theory of Justice thus highlight one important issue for global and international justice that goes at the heart of structural change. The same normative framework could be interpreted both as a call for a thorough reshaping of international rules, as in Beitz’s account, or to reinforce the existing international order, as in Rawls’ view.

27 Samuel Freeman, ‘The Law of Peoples, Social Cooperation, Human Rights, and Distributive Justice’ (2006) Social Philosophy and Policy, 23(1), 39.

28 Beitz, ‘Justice and International Relations’ (n 19), 374 29 Buchanan, “Rawls’s Law of Peoples” (n 26), 706

30 John Rawls, Political Liberism (Columbia University Press, 2005), 258

Reflecting on the contextual importance of structure for the definition of the content and scope of principles of justice, Martin argues that “focusing on the basic structure as the subject of justice has tended to lead theorists to make a choice: either there is no global basic structure and therefore obligations of justice remain domestic only (the statist position) or there is sufficient institutional basis at the global level to warrant affirming a basic structure global in scope, meaning that duties of justice must also be global (the cosmopolitan position)”32. This latter approach, though, requires

accepting the inadequacy of a purely contractarian model for the international order. This opposition has been replicated and reinforced historically. As Barry argues, in structuring the relations between states, the objective of establishing a peaceful order overshadowed all other objectives, so that distributive justice and fairness were never taken seriously33. It seems thus that there is thus an

“inherent tension” between the order provided by the international legal system and the various aspirations for justice which remain alien to that order34. Insofar as claims of justice are premised on

the realisation of a world common good, they presuppose that such good should overrule state particular interests and are thus prima facie incompatible with the very structure of international law. As Bull argues “ideas of world or cosmopolitan justice are fully realisable, if at all, only in the context of a world or cosmopolitan society. Demands for world justice are therefore demands for the transformation of the system and society of states and are inherently revolutionary”35. Pogge is one

of most vocal cosmopolitans addressing the incompatibility between the current international order and distributive justice. In his paper on Cosmopolitanism and Sovereignty he argues that “from the standpoint of a cosmopolitan morality […] this concentration of sovereignty at one level is no longer defensible”36. The core of his argument rests on the complicity of the international system in the

creation and perpetuation of inequalities to the extent that in his theory aspirations for better justice effectively correspond to collective obligations to reform international law and institutions37.

Similarly, Martha Nussbaum is sceptical of the claim that an adequate account of justice at the global

32 Martin, ‘Global Basic Structure’ (n 23),11

33 Brian Barry, Political Argument: A Reissue with a New Introduction (New York and London: Wheatsheaf Harvester, 1990) p. lxxiv (1st ed. 1965).

34 Bull, The anarchical society (n 5), 83 35 ibid 84

36 Thomas Pogge, “Cosmopolitanism and sovereignty.” (1992) Ethics 103, 58 37 Suttle, Distributive Justice (n 21), 42

level can be achieved by relying on the model of “international cooperation as a contract for mutual advantage among parties similarly placed in a state of nature”38.

The moment we turn away from a purely formalistic conception of justice towards substantive justice at the international level, an inherent structural tension between aspirations of justice and the limited reach of the structure of the international order surfaces polarising the debate between the protection of status quo structures and their total overcoming.

38 Martha Nussbaum, Frontiers of Justice: Disability, Nationality, Species Membership (Belknap Press, 2007), 226

DISTRIBUTIVE

JUSTICE

IN

THE

INTERNATIONAL

LEGAL

ORDER

This section will deal with the relationship between international law and the international order so as to understand the way in which the latter resists accommodating principles of distributive justice. I will focus on the approach to economic justice favoured in the current global economic order by way of international law. It will be argued that the premises of economic justice in the current order rest on the combination and interaction of three main principles: the sovereign equality of states, a “basic needs” approach to human rights and on the preponderance of utilitarian considerations underlying the international economic system.

1.

S

State sovereignty has been defined as the fundamental principle of world politics39, laying the

foundation – as well as imposing important limitation – for all international law regimes, including international economic law. Not surprisingly Article 2(1) of the UN Charter states that “the Organization is based on the principle of the sovereign equality of all its Members”40, placing

sovereignty as something akin to a constitutional principle in the largest multilateral organisation in the world. State sovereignty is articulated on the international plane as external and internal sovereignty. Its external dimension underpins the principle of sovereign equality which “has attained almost an ontological position in the structure of the international legal system”41. By placing smaller

states procedurally on an equal footing with bigger and more powerful states, the principle of sovereign equality, consistently with Rawls’ conclusions, is considered one of the most important and familiar sources of justice in international law. If the external dimension of sovereignty is legally translated in the principle of formal equality of all states, its internal dimension results in an absolute prohibition to intervention in the sovereign matters of another state. Accordingly, article 2(7) of the UN Charter provides that “nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state […]”42.

39 Bull, The Anarchical Society (n 5), 134

40 United Nations, Charter of the United Nations, 24 October 1945, 1 UNTS XVI, article 2(1)

41 Benedict Kingsbury, ‘Sovereignty and Inequality’ (1998) European Journal of International Law 9, 600 42 Charter of the UN (n 40), article 2(7)

As Kingsbury argues, the concept of sovereignty has both proactively and reactively frustrated attempts to channel international law towards addressing inequality. In its external dimension, the conceptual scheme of formal equality has served, if at least in theory, as the main instrument to counterbalance the vast material inequality among states. General Assembly resolution 2625 (XXXV) of 24 October 197043 sets out the principle of sovereign equality of states in the following

terms: “all states enjoy sovereign equality. They have equal rights and duties and are equal members of the international community, notwithstanding differences of an economic, social, political or other nature”. This formulation identifies the principle of equality as belonging to the legal sphere rather than to the material one, so that “the word “differences” could, without any damage to the spirit of the text, be replaced by “inequalities”44. At the same time, the internal dimension of sovereignty

provided a framework whereby the responsibility for mitigation of economic inequalities was largely left to the internal state apparatus and away from the market-orientation of international economic law.

This double understanding of sovereignty determined the development of international law as a system of “minimal law necessary to enable state-societies to act as a closed system internally and to act as territory-owners in relation to each other”45. Reflecting the mainstream view of the international

order, Bull identifies international law as a system of “rules of coexistence in international society”. The existence of an international society forms the supreme normative principle of international political organisation46. Sovereignty is prior to international law: it is not international law that

generates sovereignty, but sovereignty that generates international law. As such the scope of rules of international law is constrained between the paramount objective of ordering the international society while respecting and upholding the sovereign independence of states, hence, in Bull’s words, they primarily aim at regulating the “coexistence of states”.

It is sovereignty that lays the foundation for the classic interpretation of international law as a system of prohibitive – rather than prescriptive - rules. In the classic passage in the Lotus47 case the

43 UN General Assembly, ‘Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in accordance with the Charter of the United Nations’ 24 October 1970,

A/RES/2625(XXV)

44 Éric David, ‘Quelques Reflexions sur l’Égalité Économique des États’, (1974) Revue Beige de Droit International, 418

45 Philip Allot, Eunomia – New Order for a New World (Oxford University Press,1990) 46 Bull, The Anarchical Society (n 5), 65

Permanent Court of International Justice (PCIJ) elucidated the implications of sovereignty for the scope and purpose of international law.

“International law governs relations between independent States. The rules of law binding upon States therefor emanate from their own free will as expressed in conventions or by usages generally accepted as expressing principles of law and established in order to regulate the relations between these co-existing independent communities or with a view to the achievement of common aims. Restrictions upon the independence of States cannot therefore be presumed”48.

By framing consent as the necessary function of state sovereignty, the Court concluded that “far from laying down a general prohibition, [international law as it stands at present] leaves [states] in this respect a wide measure of discretion, which is only limited in certain cases by prohibitive rules; as regards other cases, every State remains free to adopt the principles which it regards as best and most suitable”49.

Where international law moves beyond rules of coexistence towards rules of cooperation, such as those regulating social and economic life, Bull argues, is when cooperation is wilfully sought by members of the international society in matters in which a consensus has been reached regarding objectives that go beyond what is necessary for mere coexistence50, with consent at the heart of the

generation of legal obligations.

On the other hand, consent provides the basis from an extension from prohibitive to prescriptive rules through the basic rule of pacta sunt servanda, which establishes the presumption allowing agreements to exist. The content of the agreement is not so important as the fact that it exists by virtue of consent – save some exceptional cases51. Consent as the expression of state sovereignty provided the ultimate

legitimising tool for international legal rules and for institutional activities even where legitimacy might have been in doubt from a moral perspective.

48 Ibid, at [44] 49 Ibid, at [46]

50 Bull, The Anarchical Society (n 5), 67

51 See for example United Nations, Vienna Convention on the Law of Treaties, 23 May 1969, Treaty Series, vol. 1155, p. 331s, article 53: ‘A treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law’

From the previous argument we deduced that what justice entails in the relations between states is far from being agreed upon. In such a scenario, international law is effectively justified in pushing demands for substantive justice that do not find expression in expressions of state will out of its agenda, and to argue that its absence goes beyond considerations of right or wrong, as its exclusion simply rests on a matter of incoherence with the order secured by respect of sovereignty. As Bull argues, “when demands for justice are put forward in the absence of a consensus within international society as to what justice involves, the prospect is opened up that the consensus which does exist about order or minimum coexistence will be undone. The question then has to be faced whether order or justice should have priority”52.

The absence of a basic structure of the international society beyond state consensus restricts the linkage space between ethics and international law, so that it is the sovereign equality of states and the principles from there derived (peaceful settlement of disputes, good faith in the fulfilment of international obligations and so on) which constitute the ethical philosophy of international law53.

2.

E

Insofar as distributive justice is understood as the principles informing the proper distribution, given competing claims, of social primary goods54, it would be incorrect to claim that because of the

formalism and neutrality of international law the international economic order does not provide for principles of distributive justice. Indeed, international economic law when confronted with different economic arrangements entailing different distribution of resources does provide grounds for choosing the optimal scenario, namely the one which is more efficient from an economic perspective. It is economic efficiency which constitutes the default standard against which the allocative fairness of international economic law is assessed55.

When it comes to the distributive consequences of international trade law the contentious point is not whether efficiency should guide economic relations or not. While the goal of efficiency is certainly a

52 Bull, The Anarchical Society (n 5), 92

53 Isabella D. Bunn, ‘Linkages Between Ethics and International Economic Law’ (1998) U. Pa. J. Int'l Econ. L., 19, 319.

54 Suttle, Distributive Justice (n 21), 30 55 ibid 47

desideratum of international economic systems56, it is doubtful whether it can alone provide a

measure of justice. Efficiency can serve as a means to choose between alternatives bearing different distributional setting only when understood in Kaldor-Hicks terms, namely when it elevates the total gains generated as the ultimate criteria for evaluation of economic systems and is thus not concerned with how that wealth is distributed57.

It is on the premise of wealth maximisation that free trade is defended as the ultimate objective of international trade law, premised on the principle that freeing trade “leads to an efficient allocation of the world’s scarce resources, generating greater output and consumption than would be possible under protectionism”58. While defended on positive grounds, namely aggregate economic benefits,

the outcomes it generates are charged with normative legitimacy: it is free trade, through the law of comparative advantage, which spontaneously generates the best distribution of opportunities and resources possible59. Not surprisingly trade liberalisation under the General Agreement on Tariffs

and Trade (GATT) was not seen as an end to itself but rather as a means to achieve higher standards of living at a global level60. The GATT preamble aims at ensuring that countries secure a share in the

growth of international trade by “entering into reciprocal and mutually advantageous arrangements directed to the substantial reduction of tariffs and other barriers to trade”61.

Even accepting, as Kapstein does, that under perfect free trade arrangements each and every state would benefit from mutual advantage, the reality remains that “the level playing field” on which such

56 It is not contested that a more efficient system leads to a better enjoyment of wealth and resources. However, the problem identified by Veljanovski is that: “Economists usually separate efficiency from income distribution questions, and then ignore the latter. […] In any efficiency analysis the real costs of redistributing income must be taken into account and a comparison made between the pure efficiency effects of proposed laws and the

inefficiency that may be generated when their distributive consequences are deemed to be unacceptable” (Cento G. Veljanovski, ‘Wealth maximization, law and ethics—On the limits of economic efficiency’, (1981)

International Review of Law and Economics 1(1), 12-13)) 57 Suttle, Distributive Justice (n 21)

58 Ibid, 46

59 FR Tesón, “Why Free Trade is Required by Justice” (2012) 29 Social Philosophy and Policy, 126 60 Remarks by Susan Esserman in Frank J. Garcia. ‘Why Trade Law Needs a Theory of Justice’ (2006) Proceedings of the Annual Meeting (American Society of International Law), 100

61 General Agreement on Tariffs and Trade 1994, Apr. 15, 1994, Marrakesh Agreement Establishing the World Trade Organization, Annex 1A, 1867 U.N.T.S. 187, 33 I.L.M. 1153 (1994)

arrangements are premised is a façade62. While the aggregate global economic wealth increases,

inequalities both within and within countries are exacerbated. To be sure, international material inequality is a complex phenomenon which cannot be traced back to a single cause, but rather depends on a multifaceted interaction of national and international factors. Yet the complex nature of the problem has not discouraged commentators of the current international trade system from criticising the blindness of the system to the asymmetrical distribution of power and resources as partaking in the perpetuation of inequalities. Garcia is firm when he claims that “international trade exacerbates existing problems in the distribution of resources and creates new ones – the rich can get richer, and the poor poorer”63.

Where the system is praised on the alleged neutrality of the basic tenets of international economic law such as reciprocity and mutual advantage it fails to acknowledge that while the rules might very well be neutral, the distribution of bargaining power and technological advantage between nations is far from being neutral. In the post-war GATT talks, Clair Wilcox speaking as an American delegate attacked the developing countries for requesting a distributive agenda that would privilege the poor and limit the rich64. Rather than treating the developing’s world’s arguments as a corrective

instrument for the unequal structure of the trade system, he only treated it as a perverse diversion from the formal system of equal obligations.

Yet the unequal bargaining power between developed and developing countries is evident. Sectors where the developing countries did have comparative advantage but that were sensible to the developing world, such as agriculture and textiles, initially remained outside the scope of trade agreements and heavily protected by the developed world65. The disequilibrium in levels of

technological advance and productive capacity also had disastrous consequences for the underdeveloped. Under the model of the international division of labour grounded in the idea of comparative advantage the assumption is that the benefits of technical progress would be distributed evenly and thus that raw material producing countries would be able to access their share of the

62 Ethan Kapstein, Economic Justice in an Unfair World: Toward a Level Playing Field (Princeton: Princeton University Press, 2006)

63 Frank J. Garcia, ‘Trade and Inequality: Economic Justice and the Developing World’, (2000) 21 Mich. J. Int'l L., 975

64 Clair Wilcox, A Charter For World Trade (The Macmillian Company, 1949), 32 65 Kapstein, Economic Justice (n 62), Fairness in Trade

benefits through international trade, with no need to industrialise66. Prebish instead notes that with

the post-War economic boom, the benefits derived from the increased productivity that was spreading through the Americas did not reach the periphery, that is, the decolonised Latin America, in a measure comparable to that of the industrial countries67. A 2004 Fao report showed that between 1961 and

2001 the average prices of agricultural products traded by the least developed countries had dropped by almost 70 percent relative to manufactured goods and that between 1970 and 1997 non-oil exporting countries in Africa experienced a loss of 119 percent of their combined annual GDP in revenues due to the declining terms of trade68.

A just allocation of economic benefits is thus not necessarily a by-product of wealth maximisation and although it is not my aim to argue that they are mutually exclusive the relationship between development at the core and underdevelopment at the periphery has been too easily trumped by cost-benefit analysis in mainstream economics. Despite the disparate position of scholars in respect to free trade, international division of labour, wealth maximisation and so on, they seem to agree that elevating utilitarianism as the dominant political theory has detrimental effects in terms of just outcomes. Rather “the only wealth maximizing outcome that is ethically attractive is the one based on a ‘just’ assignment of initial rights”69, expressing a serious concern for how existing material

inequality is replicated in international economic relations.

3. H

Socioeconomic rights are concerned with securing the minimum subsistence for a dignified life, hence they have a strong correlation with the objective of poverty eradication and economic justice. Not surprisingly Salomon considers international human rights as articulating the “principal ethical discourse of our times”70 and the Committee on Social, Economic and Cultural Rights (CESCR)

General Comment on the right to food underlines that the scope of the right is “inseparable from

66 Raul Prebish, ‘The Economic Development of Latin America and its Principal Problems” (1950) United Nations Publication E/CN.12/89/Rev.l, 1

67 ibid

68 FAO, ‘The State of Agricultural Commodity Markets’ (2004) 69 Veljanovski, ‘On the limits of economic efficiency’ (n 56)

70 Margot Salomon, ‘Why Should it Matter that Others Have More? Poverty, Inequality and the Potential of International Human Rights Law’ (2011) Review of International Studies 37, 2139

social justice”71. The mainstream approach to international human rights in fact defends “the

civilising influence of human rights that can temper the inequities” – or ‘market failure’, the author specifies – “that unbridled globalisation would otherwise produce”72. International human rights are

thus seen as the main counterbalance for the problem of inequality.

The appropriate standard for the realisation of socioeconomic rights is set in the CESCR General Comment No 3 on the nature of state parties’ obligations, the objective being that of securing “a minimum core obligation to ensure the satisfaction of, at the very least, minimum essential levels of each of the rights”73. The prevailing interpretation of human rights is primarily based on a minimalist

approach, focused on providing for the basic needs of individuals. On the other hand, the principle of progressive realisation, constituting the other aspect of socioeconomic rights and which moves beyond the minimalist doctrine, is not an interpretation which, to date, has been meaningfully developed at the international level74.

Despite privileging an approach that focuses on remedying the most abject forms of destitution, in its statement on poverty, the CESCR acknowledged that the realisation of poverty eradication is hampered by structural factors that go beyond the reach of the minimal interpretation of human rights and more generally that “lie beyond their control in the contemporary international order”75. Among

such global structural obstacles, the committee mentions unsustainable foreign debt, the widening gap between rich and poor, and the absence of an equitable multilateral trade, investment and financial system. And yet, Salomon contends that “its pronouncements on asymmetries in political and economic arrangements notwithstanding, the Committee has not transitioned from a focus on poverty and the idea of universal basic rights to one more sensitive to demands of global equality”76.

71 CESCR, General Comment No. 1, The Right to Adequate Food (Art. 11 of the Covenant), (20th session, 1999) UN Doc. E/C.12/1999/5

72 David Kinley, Civilising Globalisation: Human rights and the global economy. (Cambridge University Press, 2009), 1

73 CESCR, General Comment No. 3, The Nature of States Parties’ Obligations (art 2(1)), (5th session, 1990), UN Doc E/1991/23 (1990), annex III, para. 10

74 Salomon, ‘Why Should it Matter that Others Have More?’ (n 70)

75 CESCR, Substantive Issues Arising in The Implementation of the International Covenant On Economic, Social and Cultural Rights: Poverty and the International Covenant on Economic, Social and Cultural Rights (25th session, 2001) UN Doc. E/C.12/2001/10

While the focus of international human rights on the marginalised classes and the poor might intuitively seem the proper object of human rights protection77, Moyn criticises such exclusive focus

on the basis that, when talking about inequality focusing on poverty means acting on the outcome rather than on the source of the problem78. However, while some argue that incentives for the

disregard of structural inequality lie in the structure of the public international order and that international human rights law has at least the potential to confront such disregard79, others are more

cynical on the relationship between international human rights law and the perpetuation of the status quo.

In The Shock Doctrine, Naomi Klein draws attention to the fact that Amnesty International’s 1976 report on Argentina state sponsored violence makes no mention of abuses being integral to the implementation of the Chicago School policies, paving the way to an economic restructuring along neoliberal lines80. Her argument seems to stir in the direction of asserting a relationship of complicity

between human rights and the advancement of neoliberal ideology, an argument which is common in the Marxist tradition81. From her perspective, human rights are conveyed more as an ideology than

as an international instrument, effectively serving the protection of the status quo structures82. As

Marks argues “where the effects of neo-liberal reconstruction began to bite, activists confined their criticism to the denunciation of abuses, leaving unchallenged the conditions in which those abuses had become possible”83.

Against these two poles – the mainstream and the Marxist - I partake with Samuel Moyn, who claims that international human rights should neither be declassed as ideology in the hands of market fundamentalism nor should they be idolised as the ultimate means to remedy international injustices. He stakes out “a moderate position between those who claim that human rights are unrelated to political economy and distributive injustice … and those who think the human rights revolution has

77 Robert McNamara, ‘Address to the Board of Governors’, (Nairobi, Kenya, 24 September 1973)

78 Samuel Moyn, ‘A Powerless Companion: Human Rights in the Age of Neoliberalism’, (2015) 77 Law and Contemporary Problems

79 Salomon, ‘Why Should it Matter that Others Have More? (n 70)

80 Naomi Klein, The Shock Doctrine: The Rise of Disaster Capitalism (Knopf Canada, 2007), 87. See also: Susan Marks, ‘Human Rights and Root Causes’ (2011) The Modern Law Review, 58

81 Moyn, ‘A Powerless Companion’ (n 78), 148

82 Kate Nash, ‘The Cultural Politics of Human Rights and Neoliberalism’ (2019) Journal of Human Rights, 18(5) 83 Susan Marks, Four Human Rights Myths in Human Rights: Old Problems, New Possibilities (Kinley et al. eds. 2013), 9

been a mere sham masking inhumane domination”84. Hence the way in which the evolution of

international human rights has proved to be detrimental to the objective of reducing economic inequity is not through wilful complicity but rather through wilful ignorance.

In The Last Utopia, Moyn outlines his “displacement thesis”, arguing that human rights provided a distraction as well as an ineffective tool for more pressing problems of structural injustice. Although rejecting the relationship of complicity between human rights and neoliberal ideology, he argues that human rights are not a remedy for inequality. Rather their silence on issues of inequality has helped legitimise the current economic structure’s disregard for distributive justice. Moyn argues that it is possible that the prominence that international human rights have acquired is symptomatic of a loss of structural accounts of social relations without necessarily being causally responsible or morally culpable for it85. He says that “in their legalized forms, human rights do not purport to provide an

egalitarian agenda. It is perfectly possible to imagine a fully achieved local and global regime of human rights protection that simultaneously features the worst hierarchy of wealth and other primary goods known to history”86.

It is thus not surprising that many consider human rights to serve as best as rhetorical admonitions. Their focus on the minimum floor of human protection is symptomatic of an abandonment of the egalitarian impulse replaced by a focus on a set of ad-hoc protections designed to alleviate only the most abject forms of destitution. By placing the spotlight on the minimum floor of protection, human rights have allowed the ceiling for hierarchical wealth concentration to be obliterated87.

84 Samuel Moyn, Not Enough: Human Rights in an Unequal World (Harvard University Press, 2018) 85 Moyn, ‘A Powerless Companion’ (n 78), 159

86 Ibid, 161 87 Ibid, 162

THE

NEW

INTERNATIONAL

ECONOMIC

ORDER

Formally proclaimed in Algiers in 197388, the New International Economic Order was already on the

making when in the 1960s the Group 77 exploited the post-colonial momentum to advocate reforms of the legal structures dominating international economic relations89. In 1962, the efforts of the Group

77 led to the adoption of the UN declaration on Permanent Sovereignty over Natural Resources90,

which would then constitute a cornerstone of the NIEO91. However, it was at the beginning of the

1970s that, having acquired the majority of the seats in the UN as a result of gained independence of many African and Asian states, the Group 77 seriously began to push the New International Economic Order within the institutional framework of the UN. The process resulted in the adoption of three major documents in 1974. The Declaration on the Establishment of a New International Economic Order92 accompanied by a Programme of Action93 and the highly divisive Charter of Economic

Rights and Duties of States94. The Declaration on the establishment of the NIEO envisages an

international economic order “based on equity, sovereign equality, interdependence, common interest and cooperation among all states” which “shall correct inequalities and redress existing injustices” and “make it possible to eliminate the widening gap between the developed and the developing countries”95. Hence, at heart the NIEO was a project of global economic justice, informed by a

compelling moral vision of global order96.

The Declaration goes on to justify its effort on the basis that “it has proved impossible to achieve an even and balanced development of the international community under the existing international

88 Kamal Hossain (ed.), Legal Aspects of the New International Legal Order (New York: Nichols Publishing Company, 1980), 1

89 Margot Salomon, ‘From NIEO to Now and the Unfinishable Story of Economic Justice’ (2013) The International and Comparative Law Quarterly 62(1),36

90 UNGA Resolution 1803 (XVII) of 14 December 1962

91 _{UNGA Resolution 3201 (S-VI) of 1 May 1974, 4(e)}

92 Ibid

93 UNGA Resolution 3202 (S-VI) of 1 May 1974

94 UNGA Resolution 3281 (XXIX) of 12 December 1974 95 UNGA Res 1803 (n 90), preamble

economic order”97. What informed Third World scholars when channelling these reforms in the field

of international law was in fact a unified vision on the history and operation of international law. One of the most enduring and insightful legacies of the NIEO rests on providing us with a critical take on how we think about international law and international economic relations. As Özsu argues, “closer attention to the NIEO is useful for developing a sharper understanding of the legal thinking that has been made available for mass consumption during the past several decades”98. It is thus

important to address the ideological and philosophical basis of the NIEO in order to understand its critical stance towards international economic law and of its call for a redistribution of world resources supported by law.

1. T

N

I

E

O

Reading Bedjaoui’s manifesto, Towards a New International Economic Order99, it appears clear that

the NIEO owes its ideological basis and structure to critical and postcolonial theory. Postcolonial theory rests on the recognition that the relationships between the developed and developing world are intrinsically asymmetrical due to the phenomenon of imperialism, which not only reprents a historical legacy but also came to dominate the structure of international law, thus surviving even in a post-colonial world100. Postcolonial inquiry is concerned with unmasking and eradicating the assumptions

and analytic frameworks which have dominated conventional international law101.

The evolution of classic international law consists of doctrines developed in Europe and extended over time to the non-European world, where the latter played an insignificant role and was treated as the recipient of western rationality102. The particular feature of such evolution, however, is that

despite being grounded on one specific civilisation, its appeal to rationalism could overshadow its

97 UNGA Res 1803 (n 90), at 1

98 Umut Özsu, ‘Neoliberalism and the New International Economic Order: A history of “Contemporary Legal Thought”’ in Justin Desautels-Stein and Christopher Tomlins (eds), Searching for Contemporary Legal Thought (Cambridge University Press 2017)

99 _{Mohammed Bedjaoui, Towards a New International Economic Order (Holmes & Meier, 1979)}

100 Antony Anghie, "Towards a Postcolonial International Law." In Singh, Prabhakar, and Benoît Mayer (eds.) Critical International Law: Postrealism, Postcolonialism, and Transnationalism (Delhi: Oxford University Press, 2014)

101 Ibid.

102 Antony Anghie, ‘The Evolution of International Law: Colonial and Postcolonial Realities’ (2006) Third World Quarterly 27(5)

regionalism. Justified as abstract, rational and neutral, norms of international law were in fact intended for universal application103.

What we see is that classic international law developed as a system of universal rules by way of privileging neutrality, both in its public and economic dimension. As Jouannet notes, the ideological neutrality of international law had a profound and revolutionary impact on the process of decolonisation in that it provided a system in which “all societies could develop and act according to their own cultural traditions provided that they adhered to the minimal rules essential for the maintenance of international peace”104.

Jouannet considers this universalising tendency of international legal thought to go at the heart of the relation between international law and hegemonic practice. In particular he talks about a paradox in international law: “international law, past and present, is the reflection of a particular – Western – culture, whilst at the same time claiming not only to internationalize but also to almost universalize the values that it conveys”105. Similarly, Pahuja identifies a ‘dual quality’ of international law arising

from its universal character, namely it contains at the same time an imperial and a counter-imperial dimension106. Its imperialist or postcolonial quality is manifest in the way international law

universalises by way of exclusion of alternatives, elevating a system of values and interests to constitute the ‘definitional truths’ of international law. Its counter-imperialist or political quality, on the other hand, relies on that very universalisation to generate aspirations – or promises, as Pahuja calls them - that transcend law’s imperial quality107. It is not surprising that the aspirational character

of international law is defined in relation to its relationship to an idea of justice. It is this constant tension towards justice which gives ‘a certain restlessness, breathing life’ to the law108. Jouannet

considers this paradox a constitutive part of international law, and one that will never be overcome. “International law”, she argues, “is intrinsically paradoxical. It is paradoxical because it is both one and the other, it is an instrument for universalization and a reflection of ambivalent particularities; a

103 Anthony Carty, ‘Critical International Law: Recent Trends in the Theory of International Law’ (1991) 2 EJIL,1 104 Anghie, ‘Postcolonial International Law’ (n 100), 197

105 Emmanuelle Jouannet, ‘Universalism and Imperialism: The True-False Paradox of International Law?’ (2007) EJIL 18:3, 379

106 Sundhya Pahuja, Decolonising International Law: Development, Economic Growth and the Politics of

Universality (Cambridge University Press 2011), 97

107 Ibid 108 Ibid 33

means of domination and a space for cooperation and emancipation”109. Ironically, international law

evolved in such a way that not even its hegemonic use could contain its aspirational impetus towards law’s “invincible promise”110. Universalism crystallises doctrines in truths that abstract from the

socio-economic realities to which they owe their existence, but at the same time creates momentum for an inclusive interpretation of the law that follows evolving consideration of what constitutes the universal common good. A similar tension is addressed by Bedjaoui who claims that international law “seems to be evolutionary by nature, yet conservative in function”111. If on the one hand “it

reflects a social reality which is changing and which it is obliged to try to keep up with”, on the other “by being the expression of social relations, it fixes or stabilizes the social milieu of which it is the product”112.

This double understanding of international law provides the ideological basis of the New International Economic Order, as for Critical Race and Postcolonial Theory.113 Like critical theory the NIEO was

“deconstructionist” in nature, namely it aimed at the “breaking down of consistent and persistent attempts by positivist international lawyers to avoid the dilemmas at the heart of their subject, through highly elaborate, apparently technical, recourse to the language of (state) consent as a representational language”114. It is premised on the deconstruction of the ‘universalist compulsion’ of international

law deployed to obscure its imperialist tendency, to go beyond the positivist language of consent and to uncover why a certain consensus on the quality of the law was formed. Critical theorists hence do not necessarily take issue with the principle of consent as a necessary condition for the legitimacy of the law. They are concerned with consent as the sole condition for the legitimacy of the law and thus with the way in which injustices can be perpetuated under the aegis of formal equality115.

The potential of the NIEO rested in the fact that rather than adopting a destructive stance towards international law as merely a formal structure of colonial domination, it aimed at exposing how those

109 Jouannet, ‘Universalism and Imperialism’ (n 105) 110 Pahuja, Decolonising International Law (n 106)

111 Bedjaoui, Towards a New International Economic Order (n 99), 112 112 Ibid

113 Thomas, Chantal, ‘Causes of Inequality in the International Economic Order: Critical Race Theory and Postcolonial Development’ (1999). Cornell Law Faculty Publications. Paper 1103, 4

114 Anthony Carty, ‘Critical International Law: Recent Trends in the Theory of International Law’ (1991) 2 EJIL,1 115 Chantal, ‘Causes of Inequality in the International Economic Order’ (n 113), 2

structures of domination were perpetuated by international law and what fixes could be adopted to transcend the imperialist quality of the law116.

Therefore, the NIEO was founded on a strong belief in the aspirational and evolutionary nature of the law, and rather than retreating from it, Bedjaoui calls for an augmentation of formal structures and institutions created by international law117. Where he sought to expose the political exploitation of

international law structures and the structural violence of the international economic order, he also sought to expose the potential of international law as a catalyst for change.

The remainder of this chapter analyses in which way the NIEO articulated its claims to substantive justice within the framework of the existing structures of international law.

2. T

NIEO

The project of the NIEO advocated for a reformed international economic order founded on:

• Permanent sovereignty over natural resources, of which a right to nationalisation of foreign owned property is a corollary118. The NIEO also called for regulation of control over the

activities of all transnational corporations, as NIEO advocates saw the model of foreign investment inadequate for the generation of indigenous growth in developing countries and generating instead an outflow of wealth to the home countries of the investors119.

• The creation of a more equitable trading system between developed and developing countries, in line with the economic objectives of obtaining an international trading system “based on efficiency and mutual and equitable benefit” and a furthering of the expansion of the world economy120. Such a system would thus provide for stable and fair commodity prices121 and

non-reciprocal trade preferences122.

116 Anghie, ‘Postcolonial International Law’ (n 100),199

117 Bedjaoui, Towards a New International Economic Order (n 99)

118 Article 2 CERDS (n109). See also: Eduardo Jimenez de Arechaga, ‘Application of the Rules of State Responsibility to the Nationalization of Foreign-Owned Property in Hossain (ed.) Legal Aspects (n 88) 119 Thomas Chantal , ‘Tranfer of Technology in The Contemporary International Order’ (1998) Fordham International Law Journal 22(5), 2107

120 Article 27 CERDS (n 94) 121 Article 28 CERDS (n 94) 122 Article 18 CERDS (n 94)

• Improved terms of access of developing countries to modern technology through the formulation of an international code of conduct for the transfer of technology123.

While it is clear that the NIEO actively challenged the positivist rationality, it has to be appreciated that the challenge was one born within the framework of positivist rationality. The NIEO did not contest the centrality of the positivist ‘fact’ – as opposed to a normative aspiration - as the basis of legal analysis but based its mission on changing the ‘fact’ on which international law was premised on. This required searching a principle for change that could accommodate consent and consensual politics, as the NIEO endeavour was to work within the existing framework rather than from without124. “It needs to be stated categorically” urges Khurshid, “that the accepted foundations of

international law are not being challenged. But the interpretation that has been used now for a long time is certainly under challenge”125.

It is sovereignty that, despite being closely associated with imperialism, provided the very basis for the claims for economic justice advanced in the New International Economic Order126. In its historical

context, Bedjaoui saw the principle of permanent sovereignty as “the driving force of great change towards a more equitable world”127. Hence the legal foundation for the thrust of the NIEO’s reforms

was provided by the same foundational principle of the ‘old’ international economic order, namely sovereignty. The way in which it differed from the classical understanding of sovereignty is that in the eyes of the Group 77 formal equality was not coextensive with functional equality so that “states cannot be equally sovereign if they are not equally developed”128. Sovereign equality had to be

interpreted substantively through affirmative action and reverse discrimination129.

If on the one hand sovereignty was thought to endow developing countries with substantive rights, most notably over their natural resources, the formulation of sovereignty in traditional international law as a formal principle only setting the spatial limits of states’ rights and obligations provided the very basis on which to reject its substantive interpretation. Not surprisingly, their initial claims to permanent sovereignty over natural resources were accused of being a dangerous excess of

123 UNGA Res 3202 (n 93), at IV. Transfer of Technology

124 Samal Khursid, ‘Justice and the New International Economic Order’ in Hossain (ed.) Legal Aspects (n 88) 125 Ibid

126 Salomon, ‘From NIEO to Now’ (n 89)

127 Bedjaoui, Towards a New International Economic Order (n 99), 234 128 Ibid