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| @ | November 26,2019

Sources of International law are normally considered what states agree to be bound to and it is also generally agreed that the subjects of International laws can be only states. Yet the author here points to interesting possibilities when the notion of State and public order are themselves under challenge. In India typically such challenges have and can come to form tribal communities who have often found for themselves constitutional dispensations of Constitutions within a Constitution. This article throws up interesting possibilities of rethinking the sources of Public International Law by questioning its Eurocentricity.

 

[dropcap]N[/dropcap]EHRU’S “Glimpses of World History” was mandated reading in my school. For the unfamiliar, the book is a collection of letters, Jawarharlal Nehru wrote for his ten-year-old daughter Indira, during the many years he spent in prison for the “crimes” he committed during India’s struggle for independence. However, the letters from Nehru to his daughter were published almost the moment they were written, suggesting that they were intended for a wider readership. As noted by Sundhya Pahuja, in his letters, Nehru used history-telling both critically, to cast doubt on the authority of imperialism and imperial law, and creatively, as a way of re-authoring the ‘world.’ Not a third way a la Giddens or Beck, but something else, away from the two sides of the coin of the European enlightenment.

However, the tone of the book itself seemed too overtly didactic to capture the interest of my teenage rebel without a cause self. Moreover, Bengalis of all stripes and ideologies seemed to dislike him for mutually contradictory offences.

Thankfully neither nostalgia nor romance is needed to question whether these can be regarded as sources under international law? If not why?

This methodological invitation runs against the grain of traditional ways of studying and engaging with international law. The classic doctrine of sources, as it was developed in the nineteenth century, and later codified in Article 38(1) of the ICJ Statute, entrenches international legal discourse and argumentation in the historical and contemporary behaviour, will and interests of states. The consecration of the sources doctrine was in many ways an exercise in the cherry-picking source material in the pursuit of new doctrinal boundaries and hierarchies. History remains tightly woven into the fabric of international law, and much like memory, history to celebrates its own ideological and political ends.

International law, according to Article 38(1), is that to which states consent to be bound, either explicitly (through the conclusion of treaties) or implicitly (through their words and acts). Yet the positivist notion of history implied by this doctrine is a notoriously problematic one. In the first place, the consent of states is understood to be of overwhelmingly primary relevance when compared to that of other entities, such as individuals or ‘peoples’. In the second place, as Koskenniemi has pointed out, the doctrine provides no plausibly ‘positivist’ way in which to legitimate this restriction. Moreover, its narrow set of (European male) authoritative figures – such as Vitoria, Suárez, Gentili, Grotius, Vattel, and Pufendorf, to the exclusion of a range of different actors and voices.

By feeding into the classical doctrine, we, whether consciously or not, feed into predominantly Eurocentric narratives which tend to ignore the discontinuities in history, adopting a naturalized approach which typically constructs the ‘evolution’ of international law as an enlightenment narrative of progress. Take for example, what we’re taught about the “birth of” international human rights law:

1789: American Declaration of Independence + French Déclaration des droits de l’homme et du citoyen

1948: Universal Declaration of Human Rights (UDHR) and the completion of the International Bill of Human Right

1976: International Covenant on Economic, Social and Cultural Rights (ICESCR) and the International Covenant on Civil and Political Rights (ICCPR).

 

This exaggerates the continuity and consistency of human rights while downplaying the historical discontinuities, conceptual inconsistencies, linguistic incoherence, and paradoxical disjunctions that are notoriously endemic in the languages, laws, and practices of human rights. When examined through the lens of orthodox sources doctrine, this restriction is – once again – valid: the only ‘nations’ to have existed as full law-making subjects for the best part of these six centuries as far as mainstream international law is concerned were either European states or neo-European settler states.

Attempts at diversifying the relatively static historical engagement with international law have grown considerably in the last two decades. New and varied histories of different and previously uncharted areas of international law have prompted a re-examination of the ideas, figures, structures, and theories embedded in the field of international law, taking into account the broader social, political, and intellectual context of legal ideologies and especially areas such as international relations or political theory and philosophy.

 

‘Is it actually possible to liberate the historiography of international law from the constraints of sources doctrine without transforming it into a historiography of something else?’ (Rose Parfitt 2014)

 

Or, in other words, how and to what extent scholars can dispense with Eurocentric markers and periodization of dominant linear disciplinary narratives without ‘throwing the proverbial baby out with the bathwater’?

Some scholars such as Luis Eslava, Madelaine Chiam, and Charlotte Peevers have purposefully abandoned the conventional sources doctrine, writing new histories in international law, focusing on ‘other’ sources, or in their case archives. However, often-voiced critique directed at such scholars is that they neither do history ‘proper’ because of the explicit critical and theoretical engagements in which the past/present distinction is collapsed, nor do they do international law ‘proper’ because the historically and theoretically infused methods and analysis make use of sources and arrives at conclusions considered too unconventional.

But even if it were possible to repudiate ‘Sources Doctrine’ as European, such refusal need not be holus-bolus in principle, nor is wholesale repudiation a freely available choice.

To this end, some scholars, such as David Kennedy, have opted for a highly contextual response, situating the decisions, rules, incidents, participants, and institutions of international law within the particular confines of the times in which they occurred and, in doing so, looking to a wide range of texts and participants for evidence. This has been described by Koskenniemi as ‘mak[ing] that which presents itself as universal [understandable] as contextually bound’, to show, as he puts it, that ‘French food is ethnic too’.

This kind of approach reminds me of another author I grew up reading in Calcutta- Arundhati Roy. In her book, Broken Republic, which deals with the struggle of Dongria Kondh against a mining company called Vedanta’s over the Niyamgiri mountains, Roy points out many times that for the Dongria, the mountain is a Mountain of Law. From the perspective of the indigenous people, the situation represents a violent clash of laws. The State and its laws are not a social fact for them. This challenges the idea that states are independent juridical-institutional formations that come into being once they are formed in ‘fact’ and which are only later ‘recognised’ as a matter of international law and it becomes increasingly clear that the concept of statehood is not universal or obvious but reflects the social transformations and Eurocentric cultural understandings prevailing at the time. As Anne Orford has argued, ‘constituting order’ has been a central preoccupation of both nation-states and international lawyers from the seventeenth century to the present day.

Another interesting take is offered by the work of Arnulf Becker-Lor who argues that Eurocentrism is does it fit with conventional international legal sources doctrine if we care to take into account all relevant sources that the sources doctrine avails us. What differentiates his work from the mainstream is the re-evaluation of conventional sources that have so far been dismissed from the agenda of canonical narratives on the history of international law and present-day international legal practice, either because they do not fit with the notion of ‘progression’ or because they are considered ‘minor’ or ‘other’ histories in the general trajectory of international law. Understandably, Becker-Lorca’s scholarship has also been well received outside of critically inclined scholarly circles.

It is relatively clear why we should be uneasy with the idea of opening up the sources doctrine is an automatic and universal cure to crises, imperialism or injustice. But it might be a useful first step to rethink our own biases and assumptions. The ways this conversation should unfold, I believe, is to look at both “moments of regress” as opposed to only moments of progress, be receptive to counter-narratives, voices silenced and routes not taken.

 

Banner image: ‘Ramblas No 2’ by Oswaldo Guayasamin (1989)

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