The “rule of law” is a relatively recent addition to the development project.1 Only after the end of the 1980s, when the Cold War was over, history had ended,2 and three worlds had putatively become “one,” did it also become commonsensical for law, institutions and “governance” to be understood as integral to “development.”3 Since that time, not only have developmental institutions such as the World Bank, the International Monetary Fund and regional development banks explicitly taken up promotion of the rule of law as a core aspect of their mandates, but a significant marketplace of international, transnational, government, and domestic actors has emerged.4 The result is a multi-billion dollar industry that is centrally concerned with “the rule of law” as instrument, end, and indicator of “development,” positioned at the heart of state-making more broadly.

The fall of the Berlin Wall in 1989 and the collapse of the Soviet Union in the years which followed brought into play a new international imaginary launched with a flurry of inaugural gestures. These included the proclamation, by US President George Bush, of a ‘New World Order’ in 1991, the publication, by UN Secretary-General Boutros Boutros-Ghali, of an Agenda for Peace in 1992,and, in the most triumphalist gesture of the three, the American political scientist Francis Fukuyama’s invocation of the end of history. Many international legal scholars, too, applauded the beginning of a new post–Cold War world, no longer dominated by two rival superpowers. It was a moment widely thought to be full of new ‘global’, if not cosmopolitan, possibilities.

Introduction

Central to the question of how we live is how we share the earth. From conflict over territory, to passage over the high seas, to the quest for raw materials, to disputes over water and oil, to dams and development, to methods of agriculture, food security and to negotiations over climate change, the question of resources lies at the heart of many international events. The struggle for the use, control and distribution of the earth and its riches has been the impelling force behind a great deal of international legal doctrine, including much which might, at first glance seem unrelated to that issue. From the River Oder case at the Permanent Court of Justice in 1929, to the judgments of the International Court in Corfu Channel in 1949 and the Gabčíkovo-Nagymaros Project case in 1997, many landmark decisions of international courts and tribunals, cited for a range of legal principles involving sources, jurisdiction, nationality, etc. involve at base disputes over scarce resources.

But if the struggle for control over resources lurks under the surface of international law, international law lies in the background of how we understand and define them in the first place. The idea of background reiterates the importance, highlighted by other chapters in this volume, of an appreciation of historical context in understanding international law. In this instance, the ‘background’ is closely connected to international law’s imperial origins (Anghie 2005; Chimni 1987).