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Indian International Law: From a Colonized Apologist to a Subaltern Protagonist

  • PRABHAKAR SINGH

Abstract

Indian responses to international law have now seen three generations of scholarship. A decade into its independence, India began playing its role in what has retrospectively been referred to as Third World approaches to international law (TWAIL). The early 1990s witnessed the rise of TWAIL II. Armed with interdisciplinarity and inspired by the subaltern pathology of the state in the 1970s, TWAIL II scholars barged into areas with approaches never seen before. Bhupinder Chimni alone discovered six perspectives of international law from India. My article picks up from where Professor Anand has left off and adds a seventh ‘tribal’ tale to Chimni's six. It is also argued that the category ‘Third World’ needs redefinition, as pockets of poverty are increasingly betraying geography. Indian law schools have also been evaluated vis-à-vis promotion of TWAIL. The paper covers, as comprehensively as possible, approaches and issues, direct or collateral, regarding an international law from India.

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1 R. P. Anand, ‘Formation of International Organizations and India: A Historical Study’, in this issue.

2 Mitra, S., ‘Level Playing Fields: The Post-colonial State, Democracy, Courts and Citizenship in India’, (2008) 9 (3) German Law Journal 343, at 359.

3 Ibid., at 359.

4 Ibid., at 359.

5 Singh, P., ‘From Narcissistic Positive International Law to Universal Natural International Law: The Dialectics of Absentee Colonialism’, (2008) 15 (1) African Journal of International and Comparative Law 56, at 60, 62, 69, 70, 73.

6 H. Bhabha, The Location of Culture (1994).

7 Chatterjee, P., ‘Beyond the Nation? Or Within?’ (1998) 56 Social Text 57, at 60.

8 Prakash, G., ‘Subaltern Studies as Postcolonial Criticism’, (1994) 99 (5) American Historical Review 1475, at 1476.

9 Ibid., at 1476.

10 Ibid., at 1476.

11 P. Chatterjee, Nationalist Thought and the Colonial World: A Derivative Discourse (1986), 100, 153, 164.

12 A. Nandy, ‘The Intimate Enemy: Loss of Recovery of Self under Colonialism’, in A. Nandy (ed.), Exiled at Home (1998), v.

13 Chatterjee, P., ‘Anderson's Utopia’, (1999) 29 (4) Diacritics 128 at 130.

14 Oommen, T. K., ‘Sociology for One World: A Plea for an Authentic Sociology’ (1990) 39 (1/2) Sociological Bulletin 1, at 12.

15 Ibid., at 12.

16 Chatterjee, supra note 13, at 130.

17 Singh, supra note 5, at 56 (emphasis in original).

18 Chimni, B. S., ‘Third World Approaches to International Law: A Manifesto’, (2006) 8 International Community Law Review 3, at 7.

19 Singh, A. N. and Singh, P., ‘What Can International Law Learn from Indian Mythology, Hinduism and History?’, (2009) 2 (1) Journal of East Asia and International Law 339.

20 B. S. Chimni, ‘An Outline of a Marxist Course on Public International Law’, (2004) 17 LJIL 1, at 2.

21 See J. Nehru, India's Foreign Policy: Selected Speeches, September 1946–April 1961 (1983).

22 Singh and Singh, supra note 19, at 263.

23 Chimni, supra note 18, at 5.

24 Critics allege that ‘the notion of a Third World is intellectually and conceptually bankrupt and politically it has already lost any relevance or legitimacy it once had.’ Berger, M., ‘After the Third World? History, Destiny and the Fate of Third Worldism’, (2004) 25 Third World Quarterly 9, at 31.

25 Nandy, supra note 12, at v.

26 Ibid., at vi.

27 Singh, supra note 5.

28 Chatterjee, supra note 7, at 68.

29 E. Said, Orientalism (1978).

30 The ‘Orient’ thread of thought goes even further than Said, to Romila Thapar, an important Indian scholar discussed in Pahuja, S., ‘The Postcoloniality of International Law’, (2005) 46 (2) Harvard International Law Journal 459, at 460, n. 5.

31 See special TWAIL issue, International Community Law Review (2008) 10 (4), entitled ‘Situating Third World Approaches to International Law (TWAIL): Inspirations, Challenges and Possibilities’.

32 Chimni, B. S., ‘Towards a Radical Third World Approach to International Law’, (2002) 5 (2) ICCLP Review 14, at 23; see also Anghie, A. and Chimni, B. S., ‘Third World Approaches to International Law and Individual Responsibility in Internal Conflicts’, (2003) 2 Chinese Journal of International Law 77, at 79.

33 Fidler, D. P., ‘Revolt against or from Within the West? TWAIL, the Developing World and the Future Direction of International Law’, (2003) 2 Chinese Journal of International Law 29, at 30.

34 Imseis, A., ‘Concept Paper: Third World Approaches to International Law and the Persistence of the Question of Palestine’, 15 Palestine Year Book of International Law (2008), available at http://lawcenter.birzeit.edu/userfiles/file/yearBook/PYBIL%20Vol_%20XV%20Concept%20Paper%20Final.pdf?PHPSESSID=ryonrxlahb (last visited 20 September 2009).

35 R. C. Hingorani, Indian Extradition Law (1969).

36 S. N. Guha Roy, ‘Is the Law of State Responsibility for Injuries to Aliens a Part of Universal International Law?’, (1961) 55 AJIL 863.

37 S. P. Sinha, Asylum and International Law (1971).

38 D. Ghai and Y. Ghai, Portrait of a Minority: Asians in East Africa (1970).

39 Chimni, B. S., ‘Teaching, Research and Promotion of International Law in India: Past, Present and Future’ (2001) 5 Singapore Journal of International and Comparative Law 368.

40 Anghie and Chimni, supra note 32, at 83.

41 R. P. Anand, ‘Role of the ‘New’ Asian–African Countries in the Present International Legal Order’, (1962) 56 AJIL 383.

42 Ibid., at 393–400.

43 R. P. Anand, ‘Maritime Practice in South East Asia until 1600 ad and Modern Law of the Sea’, (1981) 30 ICLQ 440.

44 See Singh and Singh, supra note 19, at 253–6.

45 Chimni, B. S., ‘The Past, Present and Future of International Law: A Critical Third World Approach’, (2007) 8 Melbourne Journal of International Law 499, at 502.

46 Chimni, B. S., ‘A Just World under Law: A View from the South’, (2007) 22 American University International Law Review 199, at 200; see also Chimni, B. S., ‘The Geopolitics of Refugee Studies: A View from the South’, (1998) 11 (4) Journal of Refugee Studies 350.

47 U. Baxi, Human Rights in a Post-human World: Critical Essays (2007).

48 Singh, M. P., ‘A Theory of Human Right for India’ (2007) 4 Indian Juridical Review 4.

49 B. Rajagopal, International Law from Below: Development, Social Movements and Third World Resistance (2003).

50 Chimni, supra note 45, at 500.

51 Baxi, U., ‘The “War On Terror” and the “War Of Terror”: Nomadic Multitudes, Aggressive Incumbents, and the “New” International Law: Prefatory Remarks on Two “Wars”’, (2005) 43 (1/2) Osgoode Hall Law Journal 7.

52 Chimni, supra note 20.

53 Chimni, B. S., ‘Alternative Visions of Just World Order: Six Tales from India’, (2005) 46 (2) Harvard International Law Journal 389.

54 Ibid., at 389.

55 Said, supra note 29.

56 Chimni supra note 53, at 396–8.

57 Bhabha, supra note 6.

58 G. Spivak, A Critique of Postcolonial Reason: Toward a History of the Vanishing Present (1999).

59 See Chimni, B. S., ‘The Sen Conception of Development and Contemporary International Law Discourse: Some Parallels’, (2008) 1 (1) Law & Development Review, available at www.bepress.com/ldr/vol1/iss1/art2/ (last visited 3 May 2009).

60 Qin, J. Y., ‘China, India, and the Law of the World Trade Organization’, (2008) 3 (1) Asian Journal of Comparative Law, available at www.bepress.com/asjcl/vol3/iss1/art8 (last visited 3 May 2009).

61 Singh, P., ‘The Scandal of Enlightenment and Birth of Disciplines: Is Post-colonial International Law Science?’, (2010) 12 International Community Law Review (forthcoming), to be reprinted in S. Silverburg (ed.), International Law: Contemporary Issues and Future Problems (2010, forthcoming).

62 Singh, Y., ‘A Life-World of Disenchantment’, (1998) 47 (2) Sociological Bulletin 155, at 158.

63 Williams, H., ‘Kantian Cosmopolitan Right’, (2007) 3 (1) Politics and Ethics Review 57, at 61.

64 Ibid., at 65.

65 See Chimni, supra note 18, at 26.

66 Chimni, ‘A Just World under Law’, supra note 46, at 202.

67 Bacchus, J., ‘Groping towards Grotius: The WTO and the International Rule of Law’, (2003) 44 Harvard International Law Journal 534.

68 H. Lauterpacht, ‘The Grotian Tradition in International Law’, in R. Falk et al. (eds.), International Law: A Contemporary Perspective (1985), quoted in Chimni, supra note 66, at 202.

69 Chimni, supra note 66, at 202.

70 Ibid., at 202, n. 10.

71 Singh, supra note 5; see also Singh, P., ‘The Political Economy of Law of the Seas in the Era of Absentee Colonialism’, (2005) 7 Nakeeram 225.

72 Bacchus, supra note 67, at 534.

73 Ibid., at 67.

74 Chimni, supra note 53, at 398.

75 Ibid., at 398.

76 Nandy, supra note 12, at 85.

77 Ibid., at 85.

78 Ibid., at 87.

79 See Singh and Singh, supra note 19.

80 See Prakash, supra note 8, at 1477.

81 Wolfe, P., ‘History and Imperialism: A Century of Theory, from Marx to Postcolonialism’, (1997) 102 American Historical Review 388, at 389.

82 Singh and Singh, supra note 19, at 245.

83 A. Nandy, ‘The Intimate Enemy: Loss of Recovery of Self under Colonialism’, in A. Nandy (ed.), Exiled at Home (1998), v.

84 Ibid., at 72–4.

85 Chimni, supra note 53, at 398.

86 Nandy, ‘At the Edge of Psychology’, supra note 12, at 1.

87 Ibid., at 1.

88 A. Nandy, ‘Woman versus Womanliness in India: Essays in Cultural and Political Psychology’, supra note 12, at 43.

89 B. S. Chimni, ‘International Institutions in the Making’, 15 EJIL (2004) 1.

90 See supra note 20.

91 C. Miéville, Between Equal Rights: A Marxist Theory of International Law (2005).

92 M. Koskenniemi, ‘What Should International Lawyers Learn from Marx?’, 17 (2004) LJIL 229.

93 B. S. Chimni, International Law and World Order: A Critique of Contemporary Approaches (1993).

94 Chimni, supra note 20; see also B. S. Chimni, ‘Marxism and International Law: A Contemporary Analysis’, Economic and Political Weekly, 6 February 1999, 337.

95 Chimni, B. S., ‘The Birth of a “Discipline”: From Refugee to Forced Migration Studies’, (2009) 22 (1) Journal of Refugee Studies 1, at 11.

96 Chimni, supra note 46, at 350. Chimni has been on the Academic Advisory Board of UNHCR (1996–2000), and on the international advisory boards of the Journal of Refugee Studies, International Journal of Refugee Law, Refugee Survey Quarterly and Forced Migration Review.

97 Ibid., at 370.

98 Ibid., at 370.

99 Chimni, supra note 20, at 22.

100 Ibid., at 22.

101 Chimni, supra note 53.

102 Government of India, The Constitution of India (1950), available at http://india.gov.in/govt/documents/english/coi_part_full.pdf (last visited 20 September 2009).

103 See this information at UNHCR: The United Nations Refugee Agency, available at www.unhcr.org/refworld/topic,463af2212,4974807f2,49749d133c,0.html (last visited 16 September 2009).

104 ECJ, Commission of the European Communities v Ireland, Case C-459/03, [2006] ECR 7.

105 Koskenniemi, ‘Fate of Public International Law: Between Techniques and Politics’, (2007) 70 Modern Law Review 1.

106 Chimni, supra note 18.

107 Chimni, supra note 95, at 14.

108 M. Koskenniemi, From Apology to Utopia: The Structure of International Legal Argument (2005).

109 Rajagopal, B., ‘Martti Koskenniemi's From Apology to Utopia: A Reflection’, (2006) 7 German Law Journal 1090.

110 Chimni, supra note 32, at 23.

111 Overview, American Society of International Law, available at www.asil.org/mission.cfm (last visited 11 May 2009).

112 History, Hague Academy of International law, available at www.hagueacademy.nl/?history (last visited 11 May 2009).

113 P. B. Mehta, ‘Century of Forgetting’, Indian Express, 16 June 2009, 10.

114 See, for a very good account of the Indian position on various aspects of international law, from trade and human rights to the ICJ, B. Patel (ed.), India and International Law (2005).

115 While the National Law Institute University, Bhopal, after two failed attempts, is finally slated to publish the Indian Law Review after 12 years (call for papers available at www.nliu.com/NLIU-ILR-2.pdf (last visited 12 December 2009)), it is far from publishing an interdisciplinary international law journal. Nonetheless, the Bhopal law school has been relatively successful in producing mooters who have participated in major international law competitions because such efforts are fully student-driven with minimum faculty involvement. All the other Indian law schools have been able to publish at least one law journal. The National Law School of India Review is the oldest law school publication, run by students of the National Law School of India University, Bangalore, for the last 21 years. The Indian Journal of Constitutional Law, NALSAR University of Law, Hyderabad, and the Journal of Indian Law and Society of the W.B. National University of Juridical Sciences, Kolkata both have a very high-quality review process. Schools recently established in Patna, Lucknow, and Raipur have also begun to publish. Indian private law schools have also taken up the challenge of journal publication. The Jindal Global Law School started an international-quality law review, the Jindal Global Law Review, in 2009 and the KIIT Law School, Bhubaneswar, is about to publish a yearly multidisciplinary journal named Journal of Law and Human Sciences (information available at www.kls.ac.in/journal.htm (last visited 26 November 2009)). Another peer-reviewed publication, the Indian Yearbook of International Law and Policy (IYBILP), is forthcoming in March 2010 (see http://lawlib.wlu.edu/LJ/index.aspx?mainid=1670) as an endeavour of academics and researchers based in India who felt that the Indian Journal of International Law (IJIL) was not serving the complete purpose for which it was originally envisaged. The IYBILP is the only recognized international law review in India to have come up after the IJIL and is certainly a step in the promotion of TWAIL III scholarship. An exhaustive list of journals based in India is available at http://lawlib.wlu.edu/LJ/index.aspx?mainid=1662 (last visited 26 November 2009).

116 The Indian Society of International Law was established in 1959 for the teaching, research, and promotion of international law with the Indian Journal of International Law (IJIL) as its flagship journal. See www.isil-aca.org/about-isil.htm#our-soceity. However, given India's size we need many more journals that provide space for Indian international law. The IJIL's articles display an understandable hide-and-seek with quality of research and interdisciplinarity. Clearly, the Indian contributions to the IJIL are sometimes, in my view, well below the international interdisciplinary academic standards.

117 Further, from 2008 the Chinese Journal of International Law, available at http://chinesejil.oxfordjournals.org (last visited 20 September 2009), is included in the Social Sciences Citation Index (SSCI), ensuring even wider visibility.

118 A. Nandy, Alternative Sciences: Creativity and Authenticity in Two Indian Scientists (2001), 14.

119 Ibid., at 14.

120 Chimni, supra note 18, at 4.

121 Chatterjee, supra note 7, at 57.

122 See, e.g., A. Nandy, The Illegitimacy of Nationalism: Rabindranath Tagore and the Politics of Self (2000), 86–7.

123 A. Nandy, ‘The Uncolonized Mind: The Post-colonial View of India and the West’, in Nandy, supra note 12, at 71’.

* Assistant Professor, Jindal Global Law School, O. P. Jindal Global University, Sonipat, NCR, India. LL M in international economic law and policy (IELPO) 2008–9, University of Barcelona; BA, LL B (Hons.) 2002–7, National Law Institute University, Bhopal. Visiting Scholar, European Court of Justice, Luxembourg, 2007 []. Prof. B. S. Chimni's encouragement, comments, and clarification of various aspects of TWAIL have been central to my understanding. Thanks are also due to Yi Liu, Jennifer Hamaoui, Ramakant Rai, Anurag Dubey, Gunjan Mishra, Christine Tremblay, Philippa Youngman, and an anonymous reviewer of the LJIL for making this article better. Nonetheless, the views and any shortcomings are the author's alone.

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Indian International Law: From a Colonized Apologist to a Subaltern Protagonist

  • PRABHAKAR SINGH

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