Arab Uprisings:

Approach to Law

 

An Egyptian protester writes on the street using sand, which reads in Arabic: "the revolution continues" in Cairo's landmark Tahrir Square on 7 June 2012. (Photo: AFP - Mohammed Abed)

By: Michael Fakhri

Published Friday, June 29, 2012

Why did people in different Arab countries rise up against decades of autocratic rule at relatively the same time? This is a difficult question to answer because each uprising was the product of a long struggle, some of which had been going on for decades. Each uprising was specific to the respective country and organized by a group of people within a particular socio-political system. Also, the meaning of these struggles is still unclear because they are still in the making.

There is also a geographic question. What connects Bahrain, Yemen, Syria, Egypt, Tunisia, and Libya in space? Was this a North African revolution that created possibilities in the Gulf and Levant? Is this indicative of an Arab cultural uprising structured by satellite television and online media? Is this part of a longer ecological struggle over natural resources? Is it that these are multiple geographic narratives playing out at this same time? Or is it part of a global political and economic reconfiguration?

It is still too early to totally understand what connects the multitude of people protesting at the same time across different spaces. Nevertheless, I suspect that what links them is a revolution of the imagination. That is, all of sudden people in different Arab countries could imagine multiple possibilities of living in another type of world. People looked around them and could envision governing themselves rather than being at the behest of an autocratic regime.

Law’s central role in the imagination of the uprisings

All of sudden people in different Arab countries could imagine multiple possibilities of living in another type of world. People looked around them and could envision governing themselves rather than being at the behest of an autocratic regime.

In many of these uprisings, law plays an important role in people’s imaginations. They are demanding new constitutions. They want a system based on the rule of law. Law is rarely part of revolutionary slogans, so to see demands for rule of law on protest placards and graffiti in the street is a unique political moment.

The general theory regarding the rule of law is that if a country has clear, rational laws that are properly and equally enforced against all people and institutions, then all will be well. Rule of law as an idea has been critiqued for several reasons. The arguments have been that: theoretically, rule of law is incoherent and impossible to define; politically, it can be a means for the powerful to mask social and economic inequalities; historically, it has failed as a means of restricting state power; and socially, it is individualistic.

Moreover, for the last decade, rule of law has been connected to economic development projects. If you read any publication from the World Bank, UNDP, or anyone in the business of development, rule of law is thought to be the key to socio-economic development. In this regard, rule of law as a development goal has been critiqued especially by some scholars from the developing world. The criticism is that that if we define development to be rule of law, it assumes there is an answer that can be discovered by improving law’s clarity and ensuring legal compliance. In effect, using rule of law as a panacea ignores the difficult political and social questions in development policy.

However, since many in the Arab world are thinking about law in the framework of transforming their future, one has to think that they don’t mean law in any way applied and interpreted in the past. This may be a moment to re-imagine what law can mean and achieve in the future.

A Global Perspective on the Arab Uprisings

So far, protesters’ demands for a better life have focused on national leaders and institutions. We should not forget, however, that the political, economic, and social conditions within these countries are also significantly determined by international structures.

International law works alongside domestic law to regulate the movement of people, goods, and capital. It has concrete effects on a long list of everyday activities like setting food safety standards, recommending banking standards, resolving international commercial disputes, defining the rights of migrant workers, providing contract terms for shipping, and structuring the operation of refugee camps. Also, international institutions affect how we create national policy; each international institution promotes its own economic ideology not only through international law but also through its programs and reports. Indeed, international law created many of the conditions that buttressed the various autocrats.

To see demands for rule of law on protest placards and graffiti in the street is a unique political moment.

With this in mind, we start to realize that international law itself is not inherently a good thing. In fact, many scholars from developing countries have convincingly shown that colonial history has been central to the creation of the most fundamental international legal doctrines for hundreds of years. Thus, we should be a bit cautious about international law.

 

We have to immediately ask ourselves which international laws and institutions have led to the degeneration of conditions in the region and how. Then we have to debate which international laws and institutions need to be challenged and transformed, and what needs to be created anew.

It is not helpful to think of international law as a body of knowledge that provides the answer to whether something is right or wrong. Instead, one way to think about international law is as a language that expresses particular interests as if they are a universal good.

For example, in the July 2006 war in Lebanon, both Israel and Hezbollah slung international legal arguments at each other justifying their attacks. Of course, both also substantiated their actions in terms of geopolitics. International jurists took note that Hezbollah, a non-state entity, felt the need to justify its actions to the rest of the world in terms of international law. Both Israel’s and Hezbollah’s arguments were within the boundaries of an international legal argument and drew from different theories of legitimacy. But whether the respective acts were legal tells us very little about whether the actions of the parties were morally or politically acceptable.

So, do we throw away international law all together? Maybe, but not just yet. International law, like any human endeavor, has progressive potential. Moreover, there is always opportunity for resistance within international law. International law is not made only through state action and negotiation. Nor is it only made through the influence of international institutions and non-governmental organizations. There are historical and contemporary examples of social movements influencing the content of international law.

For instance, the transnational protests led by activists, peasant groups, environmentalists, labor activists, and students from developing countries forced trade policy-makers to reconsider the World Trade Organization’s (WTO) fundamental function and purpose. These protests played a significant role in ensuring that the current round of WTO negations focuses on socio-economic development in both rich and poor countries instead of the interests of multinational corporations. Yet, the deadlock at the current WTO Doha Development Round reminds us that we have to be ever-vigilant in political struggles.

Now that law is central to people’s revolutionary imagination, Arab protesters should consider transforming international law.

International law created many of the conditions that buttressed the various autocrats.

The first and possibly most important reason is that if people in Arab countries do not re-imagine international law themselves, it will be done for them. For better or worse, international law always affects people’s lives. It will most definitely be for the worse if Arab peoples are simply the passive recipients of international law. The result would be that international law would act as a counter-revolutionary force. The ruling elite might be removed but international law would still structure the very conditions that led to the original uprisings. International institutions may in effect “steal” the revolution in order to implement their own socio-economic programs.

Another reason why people should look to transform international law is that law is a powerful way of putting thought into practice. Many of the Arab uprisings, especially in Egypt, have passed from the moment of euphoria. In Syria, the people still have a long road ahead of them in order to dispose of the Baath Party. Bahraini rulers remain ruthless and desperate, behaviour exemplified in how they recently arrested and interrogated a young boy. Nevertheless, these revolutions are not only about the end regimes. Rather, they are continuations of long-standing grievances and the beginning of an extensive struggle to determine how to implement institutional change. Law shouldn’t shape people’s revolutionary imagination, but it does play a role in taking what begin as feelings of frustration and rage and transforming these sentiments into difficult decisions and compromises. As we learned from Egypt, we need to be ready to build a new future the minute the despots are removed.

How these changes are to take place is open for discussion amongst various Arab peoples. Arab protesters could then globalize the Arab uprisings by taking their experiments and experiences towards a revolution within international legal imagination, doctrine, and practice writ large.

 

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Michael Fakhri is an Assistant Professor at the University of Oregon School of Law. He teaches, writes and researches in the areas of international economic law and Third World Approaches to International Law. This article is adapted from a talk delivered at the Issam Fares Institute for Public Policy and International Affairs at the American University of Beirut.

The views expressed by the author do not necessarily reflect Al-Akhbar's editorial policy.