On Being Colonized by "International Law"
by Bhupinder Chimni

Excerpts from the Penang meeting of Multiversity, February 2002

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First of all, let me caution you that I'm going to bring you down from the world of high theory into more mundane matters. What I'm going to try to do in the next fifteen minutes or so is to simply report on how western domination has extended through and in the field of law and in particular, international law. What I'll do is to divide my presentation into four parts.

First, I would suggest to you that we need to take increasing the international law seriously. Secondly, I'll briefly talk about the modes through which western domination extends or is embedded in the world of international law. Third, I'll touch upon the kind of steps that some of us in the third world international law community have undertaken in order to contest this western domination, and fourth, end with some suggestions of how we could proceed further.

Now let me begin by talking about why we need to take international law seriously. As I've suggested in one of the remarks that I've made upon the proposal, I think that increasingly international law is literally displacing national law. What we are witnessing is a process which took place in Europe in the 18th and 19th centuries when the unification of the European states took place, that there was an attempt to have a single legal system within the nation-state by overcoming local boundaries, local laws, local customs and so on. And this was done in order to aid the functioning of national capital at that point of time.

Now what we're seeing is a process through which laws are being universalised within the world itself in order to have a single space for the operation of what I would call a trans-national capital. Now, the result of the process that has been unleashed is mind boggling. I would also like to suggest that there's incessant talk of globalisation in the media, in the academia. Now this globalisation is not a spontaneous process but is being induced through establishing certain formal legal regimes, certain formal legal institutions that are promoting this, a particular kind of globalisation process.

One consequence to my mind, which is mind boggling is that it is redefining democracy in the third world countries. I think its redefining the essence of democracy as we understand it now, parliamentary democracy, in the third world countries. Now how is it doing so.

Let me just take the illustration of one major octopus like organisation which has come into existence only a few years ago, we are all familiar with it, the World Trade Organisation. If the Doha Round, which has been launched two months ago goes through, then at the end of another five of six years, we will see that some of the core aspects of national policy or national sovereign space, would have been colonised by international law. Whether you take the area of investment, or technology policy, or services, or environment, or labour standards or government procurement, or competition policy, in all these areas at the conclusion of the Doha Round, India would have to, as most other third world countries would have to sign onto the outcome of the Doha Round.

Now what does this really mean in the practice of democracy. It means that once the Doha Round has gone through, then the heart of the Indian democratic process, the electoral process really means nothing to the ordinary India people. Because whether you elect the Communist party of India (Marxist), or whether you elect the Bharatiya Janata Party, or whether you elect the Congress party, anybody you wish to elect to the government, they would all short of walking out of these institutions, abide by the same economic policies, because they've undertaken an international obligation to that effect, and this international obligation is backed up by unbelievable power of the sanctions of the dominant states. So to an ordinary person who often voted, in the belief that he would be able to modify the economic policies that different political parties pursue, yet, this is not going to be any longer possible, at least after the Doha Round.

Let me give you another illustration of how these institutions transcend or subvert our own democratic institutions. We were always told in law school that the highest judiciary in our country was the supreme court of India and whatever it had to say about whatever laws that were passed within our country, that was the final view on the question. Now we all know or I hope we all know that after the Doha Round is gone through, all national legislation, including the core areas, all national legislation now will be subject to the arbitration of the World Trade Organisation. That is, at any point, if any state contests whether the national legislation is in conformity with international obligations or not, it is not for your own highest judiciary to say whether it's in conformity or not, but for a third party sitting in Geneva to suggest whether, yes, you are fulfilling your international obligations or not. I think these are very radical developments that have taken place,

In international economic law as we call it, these are simply called developments. I just wanted to mention that when I came as a student to the Jawaharlal Nehru University, we had just two courses on international law. This is to try and explain the spatial expansion that international legal rules, dominated by the west has undergone. There were two courses, one was called the law of peace and one was called the law of war. At the present moment, we have ten fully established branches of international law: international environmental law, trade law, air law, space law, human rights law, intellectual property rights law, you have these branches, and all the rules of these branches are essentially rules which have been dictated to the third world by the west. So the increasing web of rules, especially established in the last two decades alone, are I think, strangulating the third world. And right now, I think they don't even possess breathing space.

The more mundane issue, how are these western rules, legal structures legitimised in the third world, in the law schools, through the education process. The situation here is no different from what the situation is in other disciplines. We recently did a survey, there was a conference of international law teachers in Asia, where we tried to look at what are the text books that are used in order to teach students in different parts of Asia, and we found that practically all of them, either used British or American text books.

Then, of course, there was the colonial structure of the courses that was never even questioned. For example, I had mentioned there is this division into law of peace and law of war. The very name law of peace, yet if you go through the courses, if you go through the substance of the courses, it is the law of peace, as it is described, which was used predominantly to colonise the third world. But it is described as the law of peace. Even that nomenclature has not been questioned, it continues to be used in large part of the third world.

In journals, the situation is almost desperate. Out of hundred journals, ninety are produced in the United States alone, another nine in Europe in percentage terms and probably one percent of the global journals in this area are produced in the third world, and the distribution of even that leaves much to be desired.

Then there is the huge growing Internet divide, that is, the complete flow of information as you all know, is North-South. There is a mass of information out there that my students access, but the flow is from essentially the North to the South, and it requires a great amount of discretion to use the materials to our advantage.

Then there are two other developments, at least in India, I think these developments happened in South East Asia much long before. There's this phenomenon of what I call the imported law school, most ably represented in the National Law School of India University, Bangalore, which openly says that we are producing lawyers for the corporate world. That's part of, almost, its mandate, its charter. It takes pride in the fact that the first nine students who top each batch are now hired by the corporate sector. Much of the visiting faculty there is funded by the Ford Foundation and other foundations to come and talk to the students. And the tragedy is that the national law school is so successful, that nearly half a dozen more law schools all over India are being established on that model, including that curriculum and are trying to replicate it.

Then there is of course the globalising law firm. With the opening up of what is called trade and services, slowly the law firms are starting to arrive, although there is still some resistance within India from the legal community that we won't allow them to practise here. But they are offshore corporations, they disguise themselves in other forms, so the global law firm is arriving, which changes the legal practices. I'm not so concerned about the fact that they are going to deprive our lawyers of money, but the fact is that they are now going to import the complete format of what it is to practise law, from the west to India.

Now these are some of the ways in which the dominant western thinking is being implanted in the law schools. And this is deeply troubling, given the fact that law schools today are very much sought after by the bright young people.

Now, what is being done to sort of contest this dominance. We had what we can call the first generation of third world international lawyers, did try and contest this dominance, and they did it in many ways. For example, they tried to contest the history of international law as articulated by the west, which it all originated there. They would say, look here, we've gone through the Vedas, the Puranas, the Mahabharata, our ancient texts and international law was present here, we practised international law between princely kingdoms and so on. And therefore, this practise needs to be taken into account. They also critiqued international law for its prejudices, bias, colonial exploitation and so on. But they did not go beyond that to examine the deeper structures which were embedded in international law, in other words, what they thought was they could use this international law, once it was purged of some of those substantive biases, they could use the form of international law as we inherited it, and simply use it to the advantage of the third world countries. This did not happen.

Now, more recently there's another group of young scholars, who call themselves by the name of TWAIL or Third World Association of International Law, or Third World Approaches to International Law. This group assembled sometime in 1995, and we've had a number of meetings, and the whole idea is to contest both, the history of international law as it is being articulated by the west, as well some of the contemporary legal regimes. Among the concrete measures that have been taken is a journal which is going to be launched in March, called the third world and international law, the first journal of its kind.

Then there is another body that has come up, again in Asia, which is based in Singapore, which is called the Foundation for the Development of International Law in Asia. Now this body is not so much interested in contesting the western structures, but produces one journal that is called the Asian Yearbook of International Law, which is read in the west. So, some of us are trying to substantively restructure the Yearbook, so that we can carry out this project of contesting the western dominance.

Now, what can we do, finally. There are several ways of looking at this. At a very practical level, we were discussing yesterday, there's a need for having a text book that is written in the third world, in the interest of third world peoples, which is not there at present, bringing out pamphlets critiquing contemporary international legal regimes, extended bibliographies put up on the website for those who are interested in this project, perhaps inventing an alternative model of a law school which does not cater to the corporate world, and which looks at the legal process from a wider social perspective, which talks about alternative modes of dispute resolution, and not simply the third party dispute resolution which the west has given us, and so on. That is another project we could have.

Then, redefining curricula, having alternative syllabi for different course work and so on. I think that if we take some of these practical steps, we would be able to at least make the presence of the third world perspective present for those who desire to access it. Not everybody would want to access it but part of the problem today is that even for somebody who is interested in something like this, it is not very easy to access the source material.

Of course, the final thing we have been trying to do as part of the TWAIL activities is to talk about how to do international law differently. Most of the international law which is written today is written within the positivist paradigm, it's all about interpreting legal rules, the wider social context is never usually put in place, and there what we are trying to do, is trying to make sure the narrative of resistance to some of the contemporary legal regimes, central to the discourse of international law.

For example, Vinay was telling me in the morning that he had written about the international regime of the oceans, which is called law of the sea. I just want to tell that story and end my presentation. For 10-12 years, this regime of the oceans was negotiated from the early 1970's to 1982 when the law of the sea convention as it is called, and it regulates all the oceans, was adopted. There was no lawyer, no international lawyer worth his or her salt who did not write a dissertation or a couple of articles of this issue.

Yet I tried to go through all the writings from this period. I could not find a single writing which talked about the consequences say of the law of the sea for the ordinary for example, fisher folk in India. We now know that because of this convention, the licensing regime which has emerged, has resulted in all kinds of problems for the fisher folk in different parts of India and elsewhere. Yet, there's never been a single line about what this means.

Likewise, you can write about intellectual property rights law, there's never a sentence in an international law write up about what this means for ordinary people. Likewise, you can right about the agreement on agriculture and there are many things to say about the text itself, but what does this mean, how does this transform the agricultural practices of countries, never figure in.

So one way to do it is to invent another form of doing international law so that the problems and the resistance which is presented to present legal regimes becomes an integral part of this discourse.