Decoding the Limits of Mainstream International Law
The teaching of international law in India is predominantly Eurocentric. The curriculum is dominated by narratives and accounts of the West producing a high degree of detachment, disinterest high degree of detachment, disinterest[1] and cognitive dissonance cognitive dissonance[2] from the content. Students in India understand international law to either be a ‘boutique subject’ or one that leads to ‘being employed at the United Nations’ and hence, outside the immediate domain of relevance.‘boutique subject’ or one that leads to ‘being employed at the United Nations’ and hence, outside the immediate domain of relevance.[3] Any benefit of the subject for the outcome-oriented law student lies in academic opportunities and scholarship. And, the scope of participation in the motions of International Organizations, are usually perceived as far removed from their ecosystem. This ‘deficit’ of international law teaching-learning is not just located in a ‘lack of relatability’ for students. It is deeply rooted in how international law is constructed, taught and understood in these places. I will illustrate this dissonance and distance through two examples.
In the first example, we look at the International Court of Justice’ Advisory Opinion of February 2019 where it concluded that the decolonization of Mauritius was incomplete and the United Kingdom (UK) had to end its administration on Chagos Archipelago as soon as possible.[4] This decision was a result of a General Assembly adopted Resolution 71/292 where the Assembly requested the Court to opine on a) the completion of the decolonization of Mauritius in 1968, and b) the consequences arising under international law from the continued administration of Chagos by the UK.
Although the Court’s decision was advisory in nature, the position it adopted was telling and clear. It paid heed to Mauritius’ historical status and context, stating that the detachment of Chagos in 1965 had not been based on a “free and genuine expression of the people concerned”, and its continued administration was a wrongful act. After Mauritius gained independence in 1968, the UK retained possession of Chagos, leasing it to the United States of America in 1971 for its strategic airbase of Diego Garcia. The Government refers to it as British Indian Ocean Territory (BIOT). About 1,500 native islanders were deported in 1971 and have never been allowed to return home since then.
Now, there are two significant outcomes of this judgment. First, in framing it as a concern of partial decolonization and self-determination, the International Court of Justice (ICJ) avoided the complicated terrain of sovereignty and territory where the only scope for the court to opine would have been through a contentious dispute; one that the parties would have never brought to the ICJ in the first place. Framing it thus gave both the General Assembly and the ICJ power to redress this sovereign injustice through principles of international law that had explicitly come from robust third world movements.[5] Secondly, while the court ably integrated TWAIL[6] techniques and tools into its functioning, it was still seemingly reposing faith in the international legal system.
The second example is an instance of a violent caste-based gang rape in Hathras, Uttar Pradesh where a young, 19-year-old Dalit woman from the Valmiki community succumbed to her injuries after being raped and assaulted brutally by a group of men. Despite naming her upper caste, Thakur perpetrators in the testimony, no subsequent arrests were made. Following serious negligence from the police, the case made headlines only after police and administrative officials cremated her body in the middle of the night on 29 September 2020 without the family’s consent. Having destroyed all traces of her body, the State Government has since denied all charges of rape and police negligence.[7] The case received considerable media attention on account of protests from civil society, anti-caste movements and pockets of feminist movements. While this counts as an instance of severe human rights violation, under the present system, any legal remedy lies only within the domestic juridical system of the state and subsequently, a circuitous route to international human rights courts as against the state. Mainstream international law is unlikely to consider this of any direct relevance to the international legal systems.
Both the examples illustrate an interesting ‘inside’ and ‘outside’ of mainstream international law. In the first instance, the concept of sovereignty is within the bounds of the discipline. However, our re-framing of the ‘legal’ question can easily place it ‘outside’ the domain of what is traditionally perceived as international law. In the second instance, the account falls outside of international law’s immediate subjectivity – inter-relation of states. But much like the first, unpacking the causality and context of such forms of violence can reveal their deep roots in the foundation of the international legal system. In order to do either of these, we have to engage with the distinction between mainstream and Critical International Law (CIL)[8] and, the significance of teaching it[9], particularly in the Global South.
Teaching of International Law in India
Operational Notion of Law and CIL
Legal education, particularly in Indian law schools is premised on an operational understanding of the discipline. Law has an interdisciplinary foundation and its teaching is frequently accompanied by Sociology, Political Science and associated Social Sciences[10]. However, these subjects are used as instruments to understand the nature of law but do not influence its operation or practice[11]. The practice of law remains in the realm of serviceable outcomes and a construction of the notion of order. Here, the success of law is determined by how clear it is and how ‘well’ it is implemented. In this framework, the challenge for international law is two-fold – a) the constant comparison to domestic law and its orderly form and b) inability to account for its political foundations. And this is premised on three significant assumptions:
Law can only be conceived as operational.
Law is an objective force and is/ought to be devoid of politics.
Law must contribute to a particular, tangible outcome as part of an adversarial process.
On all three counts, mainstream international law appears to fails, making it a distant and unfamiliar endeavour for law students to start with. And, if the comparison to this operational legal framework was not enough, a mainstream international law course masquerades to be ahistorical as well. Much to the chagrin of the Global South, it notes the moment of international law’s origin as 1945, the birth of the United Nations and, denotes this as a universal legal system. For a country that gains territorial sovereignty in 1948, a discipline that identifies a point of origin predating its “legal existence” can only offer so much to the subject, subjects and objects[12].
It is here that the teaching of CIL, especially in India holds particular relevance. CIL posits a very different understanding of both law and international law. Rooted in Critical Legal Studies (CLS)[13] its account of law is discursive and one that is aware of its myth[14], politics and in case of international law, its imperial-patriarchal-capitalist continuity[15]. Perceived thus, CIL seems to possess the ability to reveal the ‘true’[16] nature of law and subsequently, of the international legal system. It allows us to enquire about the history of this ‘universal’ legal system where everyone but Europe’s history is erased. It gives us heuristics to interrogate mainstream international law narratives where the only reference to the people of the Global South are as ‘uncivilized’ and ‘undeveloped’. It enables us to locate the absence/erasure of non-European, non-male identities from the moment of “emergence” of the discipline. CIL thus allows us to overcome the double consciousness[17] that is produced through the teaching and learning of mainstream international law in Global South states. We are not only made aware of the impact of colonialism on knowledge production and the subject, but we are also forced to confront our ‘colonial’ selves.
Our location in the Global South notwithstanding, we are very often in epistemic synchronicity with European (and subsequently American) thoughts and systems. We believe those standards of development to be aspirational, those sources of knowledge to be unquestioningly superior and in the process, reject a part of our historical making and selves. As law students/legal scholars, this manifests in believing in the universal potential of international law even as it is founded on our exclusion and subjugation. We rarely question international law’s relation to us, let alone its curricular sources. Most of our legal training is spent in trying to master but not really learning the nature of the system. In many ways, this is a false consciousness of praxis where we are always one step behind and strive to move to the pre-determined next step. What we demonstrate in our legal education then, in the words of Bhabha is, “the most elusive and effective strategies of colonial knowledge” – mimicry.[18]
Surveying the Terrain
In order to better understand pedagogy and curricular space, we[19]conducted a cursory study of how international law is currently taught in India. Our study consisted of:
a brief survey for students and faculty of Indian law schools and
a perusal of international law curriculum of different law schools in India.
At the outset, let me acknowledge the limits of the methods deployed and the survey process. Our sample size is sparse and restricted and does not document complete, nuanced teaching practices. The questionnaire has been framed to obtain an overview of international law curricular formats and is unable to provide granular data on teaching. One of the responses in the survey is from my own institution, Jindal Global Law School, where I teach a course on Critical International Law. The response, however, records as having no knowledge of the discipline. This could mean one of three things. One, given that my course is an elective, the survey participant may not have had an opportunity to enrol in it. Two, since I am on a sabbatical this year, the survey participant may be deriving their information from courses currently being offered. Or, it may have escaped their notice. The purpose of this illustration is to suggest that the participants’ responses may or may not be indicative of all the courses that are offered. In order to supplement this deficit in data, we also proceeded to study the international law syllabus/course manual/curriculum of national as well as some private law schools in India and, we made the following observations.
Aside from National Law University, Delhi, Jindal Global Law School and South Asian University, no other law school in India appears to have comprehensive CIL courses (core or elective) in their curriculum. The Public International Law course curriculum at NLU, Delhi contains a significant amount of TWAIL scholarship, primarily the works of Professor B.S Chimni and Professor Upendra Baxi. However, it does not seem to include Feminist, Marxist, Indigenous and other forms of CIL. The Masters in Law program at SAU centres around South Asian ideas and perspectives through the work of South Asian scholars in International Relations and International Law[20]. The course is premised on TWAIL and a post-colonial understanding to international law. While it appears to be more comprehensive than the NLU-Delhi curriculum, it is equally sparse for other strands of CIL. SAU, however is an international university, sponsored by SAARC countries and established with the intent of regional collaboration. Therefore, its curricular focus on South Asia is unsurprising and within a particular context. Importantly, the course is taught at the LLM (hence, optional) level.
Through the survey, we were able to infer a schema of absence of CIL in law school spaces. 76% of the students who participated in the survey had not heard of CIL. Of the percentage that have, it is rarely through a law school course or the teaching process. We asked the students for an approximate definition of what they think CIL is and only 3 of the responses were close to how CIL intends to present itself. In most instances, students assumed CIL was a form of international law that was more critical of its political undertones (the word realist featured often). Some definitions referred to an inclusion of the history of international law (not specifying which history) while others indicated that it has something to do with liberalism.[21] Regarding its inclusion in law school curriculum, a significant number of responses were indifferent.[22] Following are some visual representations of our survey.
A pie chart illustrating the awareness about the existence of Critical International Law as a discipline.
This illustrates the opinion of law students about the inclusion of Critical International Law in their curriculum.
Alongside our data, I would also like to acknowledge our effort at adopting a queer feminist methodology[23] to the research as well as the writing. The departure from normative form is conscious and in hopes of making room for work that is more ‘humane’. Our survey is ‘informal’ in nature and analysis is mindful of and accounts for this ‘informality’. Most of the research, conceptualising and writing has been done through the thick of the pandemic, lock-down and commitments to our work and selves. Through all of this, Stuti has held space for me and this research in a manner that is central to feminist jurisprudence.[24] Our work then, is not simply an account of how international law is taught in India. The manner of our work is very much a pedagogical aspect of CIL.
Addressing Epistemic Injustice Through the Teaching of CIL
In Part I of this blog, I had offered two accounts that are emblematic of mainstream international law’s deception. Now, we will attempt to tie those loose ends. Most scholars (particularly of TWAIL) would posit that the significance of Chagos island case lies in how the question of law was framed[25]. By foregrounding decolonization, the ICJ was able to soundly condemn colonial continuities and imperial praxis (at large and, of the UK) using the apparatus of international law in a manner authorized by the Global South States[26]. However, laudable as this is, through CIL, we are simultaneously able to see the limits of this moment. In asking – was the process of decolonization complete – we are also able to unveil the following:
Colonization and mainstream international law are deeply connected.
Colonial continuities have been framed within the language of international law itself.
While the Court directs the UK to wrap up its administration in the region, it also binds Mauritius to legal principles that are clearly formulated on European hegemony and colonial conquest. If Chagos indicates to the colonial matrix, from there we use CIL again to ask – how is a legal system universally tenable when, at its suggested moment of inception, nearly 70% of the world remained under colonial occupation? Entry into this international legal system was conditional upon acquiring independence and, the only permissible form of ‘being’ was the Westphalian state[27]. All other pre-colonial forms of polity, law and governance were subsumed by Europe and erased.[28] The state, as we are told, is the primary subject of mainstream international law. If the inheritance of statehood itself was not premised on free consent of the now post-colonial states, how can the apparatus of international law ever truly serve them? If such states were only left to mimic and participate in Eurocentrism with their epistemologies wilfully ‘othered’ and erased, then, how can mainstream international law ever belong to them? There are formulations of law, land and polity beyond the history of Europe that hark to our histories. Through the learning of CIL in the Global South, we may be able to not just recover other incarnations, but also reclaim ourselves.
Using the discursive potential of CIL, we unpack Hathras in a similar fashion. Post-colonial states, in many ways, are an extension of colonial praxis.[29] They retain a significant number of colonial laws, policies premised on colonial dialectis, structures and institutions through which they suppress resistance and dissent[30]. Apart from colonial moorings, the post-colonial state is masculine and patriarchal, much like its colonial predecessor.[31] A feminist and queer critique of the state form, sovereignty and subsequently mainstream international law, reveals to us what went into the making of the post-colonial state. In maintaining the stability of three things – statehood, gender categories as binaries and, a statist intervention to address violence – both mainstream International Law and the post-colonial state create a sexual security regime[32]. This regime not only fails to address the underlying causes of sexual violence, but, it also acquires more state control over its subjects by “offering laws and structures to protect”. Through more protective enforcement and force on standby, it ensures that power is dispersed in a top-down manner and the status quo of domination, subjugation and subject constitution is maintained.
I must emphasize that the nature of caste based sexual violence in India is much more nuanced than retaining the construction of gender identity. It goes into historical subject formation and oppression that predates colonial expansion. However, its continuity is heavily influenced by the nature of the post-colonial state, which, in turn is rooted in mainstream international law and a system of international legal reproduction.[33] CIL helps us connect mainstream international law to a narrative that is otherwise seen as a self-contained phenomena of the Indian sub-continent to be redressed through human rights and constitutional mechanisms of states. In a manner, then, CIL helps restore to vision (and pedagogy) the epistemic violence that colonialism has inflicted on knowledge production and perception itself.
As I have said elsewhere[34] international law teachers, especially in India, always have a choice to teach CIL. Continuing to teach Eurocentric international law and disregarding one’s positionality has on impact on students, the discipline, legal pedagogy and ourselves. However, given the cognitive dissonance and the double consciousness, teachers, and subsequently students do not perceive the scope of choice or the implicit disadvantages. Not intended to be prescriptive in any manner, the inclusion of CIL in law school curriculum is certainly one way to address this obstacle. In the past, I have shared my journey as a situated CIL pedagogue in hopes that it can serve as a heuristic for all those looking to salvage the discipline and themselves. In the same spirit, I share the most recent form of the course manual (Course Manual – The Many Faces of International Law) I use to teach CIL. It undergoes revisions and reconstructions every term of teaching and it is shared with the intent to collectively regroup, reform and reclaim.[35]
[1]A. Anghie, Critical Pedagogy Symposium: Criticial Thinking and Teaching as Common Sense- Random Reflections, OpinioJuris, available at http://opiniojuris.org/2020/08/31/critical-pedagogy-symposium-critical-thinking-and-teaching-as-common-sense-random-reflections/.
[2] There are two levels to this dissonance. The first is the lack of relatability to a subject that understands the Global South only as objects. The second is an effort to participate in, retrieve and recover this same system that looks to efface them because of a sense of disciplinary and epistemic void. .
[3] International organizations are both dominated by and located in the Global North and students from the Global South perceive entry to such organizations as difficult and infrequent. This is largely because representation of the Global South in such places in regional, unlike the West. See generally, J.K. Cogan, Representation and Power in International Organization: The Operational Constitution and Its Critics, 103 The American Journal of International Law 209 (2009).
[4] Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965, Advisory Opinion, I.C.J. Reports 2019, p. 95.
[5] Self-determination is considered to be the Global South’s significant contribution to the corpus of mainstream, Eurocentric international law. See generally, V.P. Nanda, Self-Determination under International Law: Validity of Claims to Secede, 13 Case Western Reserve Journal of International Law 257 (1981).
[6] Third World Approaches to International Law.
[7] I. Ara, Hathras Gang-Rape and Murder Case: A Timeline, The Wire (28/10/2020), available at https://thewire.in/women/hathras-gang-rape-and-murder-case-a-timeline.
[8] I use this term to indicate an amalgamation of all techniques that subject mainstream, Eurocentric international law to various forms of critiques, especially its structures and tendency to mask history. These critiques tell us that the discipline we know as international law is, in reality, a European imposition that was forced on the rest of the world through colonization. Hereinafter referred to as CIL.
[9] R. Sen, Criticial Thinking in Times of Crisis: International Law, Critical Education and COVID-19, Socio-Legal Review Forum, available at https://www.sociolegalreview.com/post/critical-thinking-in-times-of-crisis-international-law-critical-education-and-covid-19.
[10] Bar Council of India Rules of Legal Education, 2008.
[11] I arrived at this conclusion from conversations with many colleagues and in particular, Mohsen al-Attar, who has been instrumental in shaping my pedagogic journey.
[12] Subject here refers to International Law, subjects refers to states of the Global North and the elite from the Global South and, object refers to everyone else who is at a relative disadvantage.
[13] M. Tushnet, Critical Legal Studies: A Political History, 100 The Yale Law Journal 1515 (1991).
[14] P. Fitzpatrick, The Mythology of Modern Law (2002).
[15] A. Anghie, Imperialism, Sovereignty and the Making of International Law (2005).
[16] N. Tzouvala, Capitalism as Civilization: A History of International Law (2020); B.S. Chimni, Marxist Critique of International Law: A Contemporary Analysis, 34 Economic and Political Weekly 337 (1999).
[17] F. Fanon, Black Skin, White Masks (1986).
[18] H. Bhabha, Of Mimicry and Man: The Ambivalence of Colonial Discourse, Discipleship: A Special Issue on Psychoanalysis 125, 133 (1984).
[19] I have been very ably assisted in this project by Stuti Srivastava, a fourth-year student at RGNUL, Punjab. Stuti has been responsible for conducting the survey, visually representing the data and many other integral research scaffolding praxis without which this piece would have been incomplete, if not impossible. She has also shown utmost patience for my many follies and failures throughout this pandemic. All errors of thought and presentation are solely mine.
[20] A. Mishra & A. Kumar, South Asian University: Towards a ‘South-Asian’ Approach to International Law- Part I, Afronomics Law, available at https://www.afronomicslaw.org/2020/09/18/south-asian-university-towards-a-south-asian-approach-to-international-law-part-i/.
[21] Interpretation and usage of these terms themselves pose a query on how foundations of social sciences are taught in law schools, but that is not within the scope of this blog.
[22] This, for me is one of the most significant and deleterious effects of teaching mainstream international law to Global South students – a sense of indifference to their own subjugation.
[23] E.K. Sedgwick, Paranoid Reading and Reparative Reading; or, You’re So Paranoid, You Probably Think This Introduction is about You, Novel Gazing: Queer Readings in Fiction (1997); M. Wickramasinghe, Feminist Research Methodology: Making Meanings of Meaning-making (2014).
[24] D. Dutta, Another story of the Open Letter: an inheritance of relationship making, 9 Jindal Global Law Review 181 (2018).
[25] K. Bagchi, Imperialism, international law and the Chagos Islands, Volkerrechtsblog, available at https://voelkerrechtsblog.org/articles/imperialism-international-law-and-the-chagos-islands/.
[26] Ibid.
[27] C. H. Alexandrowicz, An introduction to the History of the Law of Nations in the East Indies (16th, 17th and 18th centuries), (1967).
[28] A. Anghie, Imperialism, Sovereignty and the Making of International Law (2005).
[29] B.S. Chimni, Alternative Visions of Just World Order: Six Tales from India, 46 Harvard International Law Journal (2005).
[30] Ss. 124A & 499, The Indian Penal Code, 1960; The Unlawful Activities (Prevention) Act, 1967; A. Yadav, How India uses colonial-era sedition law against CAA protesters, Aljazeera, (21/01/20), available at https://www.aljazeera.com/news/2020/1/21/how-india-uses-colonial-era-sedition-law-against-caa-protesters; A. Gupta, Criminal defamation is a flawed Victorian law whose time is up, Times of India, (21/10/18), available at https://timesofindia.indiatimes.com/home/sunday-times/all-that-matters/criminal-defamation-is-a-flawed-victorian-law-whose-time-is-up/articleshow/66297315.cms.
[31] R. Kapur, Gender, Sovereignty and the Rise of a Sexual Security Regime in International Law and Post Colonial India, 14 Melbourne Journal of International Law (2014); G. Spivak, Foreword, “Draupadi” by Mahashweta Devi, 8 Critical Inquiry (1981).
[32] R. Kapur, Gender, Sovereignty and the Rise of a Sexual Security Regime in International Law and Post Colonial India, 14 Melbourne Journal of International Law (2014)
[33] R. Parfitt, The Process of International Legal Reproduction (2019).
[34] R. Sen, Teaching International Law in Asia: The Predicated Pedagogue, Afronomics, available at https://www.afronomicslaw.org/2020/09/24/teaching-international-law-in-asia-the-predicated-pedagogue/.
[35] If anyone wishes to provide feedback or discuss the curriculum, I am available at rsen@jgu.edu.in for conversations.
This article has been authored by Ms. Rohini Sen, Assistant Professor at Jindal Global Law School and a Ph.D. candidate at the University of Warwick. She was assisted by Ms. Stuti Srivastava, a student of RGNUL, Punjab. This blog is a part of RSRR’s Excerpts from Experts Series, initiated to bring forth discussion by experts on contemporary legal issues.