22 Feb Of Anti-Colonialism and International Legal Pedagogy: Can we Visualise a Post-Westphalian World?
Experimentation is the lifeblood of a pedagogue. Without this, our craft is at risk of going stale: the materials will become anachronistic, just as the methods will falter. Law schools, however, are not ideal sites for experimentation. Staunchly grounded in professional practice—we might say jealously guarded by the guild—the curriculum constricts space for pedagogical adventure, bounded by the demands of an absentee landowner.
Law students are not inclined toward this aim either. Influenced by magic circle thinking, they often express a desire for job-driven learning. Would they surrender their education to the whims of industry if they knew many of them would never set foot in a firm? Would they snub a broader pedagogy if they were aware of their predecessors’ exasperation with the legal profession?
When we factor in the bloviations of MPs, legal academics face a perfect storm of resistance. In conflict with the zeitgeist of our times, we innovate at our peril, forever at risk of negative student feedback if our flight of fancy clashes with their student-cum-customer experience.
It was thus with a slight sense of trepidation that I set off to revamp my lectures on sovereignty for a module on Public International Law (PIL) I am co-teaching at UCL (convened by Dr Megan Donaldson and jointly delivered with several others). Doubtless, PIL is not a steppingstone to the gilded halls of capital. Still, countless students enrolled in this module seek guidance in pursuing PIL-related careers. Brave souls, I agree. I am not unsympathetic to the brutal financial realities our students face. Of course, we must teach them the law even if—and this is the crux of the conundrum—teaching them the law as it is inculcates them in the logic of an inequitable status quo.
As I’ve written elsewhere, for anti-colonial scholars, our craft is existential, often manifesting as an exercise in self-flagellation. Is it possible for anti-colonial legal scholars to square the circle?
In my opening salvo, I affirmed sovereignty’s character as a contested political concept. This is clichéd, but bears repeating. As a political concept, sovereignty’s meaning is as malleable as our imagination. It evolves with the circumstances that surround us, including the distinct, sometimes competing interests that propel communities and classes. As was clear from the range of opinions we explored in the assigned materials, common ground is rare. And, in the sovereignty debate, perception matters more than meaning.
It’s safe to say my students did not find these provocative remarks reassuring. With much of contemporary education reduced to content delivery and exam preparation, provocations can vex. Where are the definitions, prof? Since anxiety is the great enemy of learning, I segued from my introduction to sovereignty’s contours, as represented in Eurocentric textbooks.
Most publicists rationalise sovereignty as an instrument of political control. It materialises at the state level, providing authority to the head of state over a territory, the population within it, and the relations it wishes to pursue with sovereign equals. While this definition appears natural, perhaps even eternal, I explained that it only emerged in Europe during its putative transition from feudalism to capitalism (or from anatomo-politics to bio-politics for the Foucauldians in the room). As per the Treaty of Westphalia, sovereignty is interlinked with territorial autonomy, prohibiting foreign trespass and interference. The boundaries are material, but also metaphorical, severing the human species into constructed categories whose logic collapses under the weight of any sustained study.
The splitting of the species, however, was not just geographical. Occurring during the early days of European imperialism and colonialism, Westphalia protected European sovereignty above the sovereignty of others.
To account for this arbitrary distinction, I used the work of Harald Bauder and Rebecca Mueller urging students to study sovereignty alongside sovereignty’s denial. Across generations, jurists used assorted rationales to sidestep the sovereignty of non-Europeans. They lacked sovereignty because they were not Christians (Vitoria); they were savage (Grotius); they were not white (Westlake); they were not industrious (Vattel). Hardly the ramblings of nativist Neanderthals, the founders of European international law made these racialised claims, drawing new arbitrary lines when old ones floundered. As we learned from Antony Anghie, the colonial encounter shaped international law, universalising aspects of the European imaginary while simultaneously delegitimising those cosmologies that did not cohere.
“Both the logic and dynamics of colonialism came to imbue the organization and normativity of the world in at least three interrelated ways. First, through varied processes of dispossession and expropriation, the colonial apparatus fused human existence with novel circuits of capital. Second, its proponents corralled perceptions of ecology within the epistemic borders of an anthropocentric worldview. A third complemented both the first and second logics: the development and circulation of modern racial categories. These processes operated concurrently, translated through law, and materializing internally and externally as they extended across societies.”Mohsen al Attar & Claire Smith, Shades of Ignorance: A Critique of the Epistemic Whiteness of International Law (forthcoming, 2024)
We thus juxtaposed Westphalian sovereignty to a sample of Indigenous forms. The differences are stark and plentiful (as they are between Indigenous conceptions). While Westphalia codifies notions of supreme authority, political hierarchy, and legal enforcement, Indigenous propositions emerge through a collection of customs, beliefs, values, and practices communities negotiate. Developing outside an anthropocentric episteme, they recognise an absolute interdependence, with humans regarded as a single species within a collective ecology. Interests differ, of course, but the overarching ethos is not possessive but custodial. Last, Indigenous communities do not aspire to either universality or uniformity, embracing the dynamism of social relations and the cultural diversity that ensues. By nurturing multiple ways of knowing, our evolution is more adept at navigating fluctuating circumstances.
The desires of the emergent merchant class motivated many of the original publicists. Vitoria was responding to a query from Cristobal Colon (Columbus) while Grotius sought to establish favourable terms for the Dutch East India Company. Each made up a conception of sovereignty that allowed for the conquest, settlement, enslavement, plunder, and even massacre of non-European peoples. The aim was not cohabitation, but the subordination of non-conforming views. One entity to embrace international law’s intolerance was the English East India Company (EIC), a key figure in international legal history.
East India companies came and went during that period. However, the EIC lasted for two centuries. And with good reason: by 1820, it had cornered two-thirds of Asian trade and helped to drive the Industrial Revolution. It was a quasi-sovereign that minted money and made laws, regarding itself as equal to the nation-state that signed its royal charter. Consider that England even ceded Bombay to the EIC. Relevant for the discussion we had, the EIC also raised an in-house army that waged (many) wars. Vitoria announced war makes states. Swati Srivastava retorts: war also awakens sovereigns.
Despite not possessing a monopoly over political power—as Westphalia insists—the EIC used war to expand its land holdings. Over time, it experienced a form of sovereign awakening, spurred by its tax and war activities in Bengal. Seeing itself as self-sustaining, it declared it possessed self-constituted sovereignty. These were the early days of Westphalia, and emergent states did not oppose assigning sovereign equality to non-state actors. Philosophers of the time spoke of sovereignty as divisible, non-hierarchical, even shared. There was hostility, however.
For self-serving reasons, the emergent liberal intelligentsia pushed for an indivisible form of sovereignty, one that states alone could claim. It is important to note they were not describing a political reality, but championing one that would generate hierarchical social relations between the nascent state and other social actors. As is clear from today’s textbooks, they were successful, persuading the emergent nation-state to disavow the possibility of non-state sovereignty. By 1858, England claimed direct rule over India (incidentally, from the EIC and not from the native population). By 1947, however, the tables had turned on England as India achieved national independence, provoking several twists and turns in the sovereignty narrative.
To decolonising peoples, sovereignty was the prize after a long dark era of imperial and colonial misrule. As R.P. Anand proclaimed, Third World states would now be masters of their own houses. They codified the principle of self-determination in the universe of the United Nations. Peoples formerly colonised by Europe could now exercise a legal right to self-determination, even if decolonisation proved a double-edged sword for two reasons. First, Europe resisted Third World independence, flouting the rights and duties that were just enshrined. Algeria, Angola, Cuba, Vietnam, and many more waged wars of independence to wrestle their sovereignty from fading colonial powers. Not all sovereigns are equal.
Second, decolonisation also operated as a legitimating force for European international law, with Third World states required to accept the regime as it was. The question anti-colonial thinkers posed, the question they continue to ponder, is whether international law can accommodate Third World cultural and epistemological traditions. Were they afforded space for juridical innovation, reconstructing international law to account for colonial history, neo-colonial present, and desire for a decolonised future?
They tried their hand at the existing regime, introducing a resolution for a New International Economic Order and making the case for a novel doctrine to enshrine Permanent Sovereignty Over Natural Resources. Europe protested, announcing the innovations as violations of classical principles of international law. While the Third World wanted to use its sovereignty to revisit the contours of international law, Europe argued otherwise. In the words of Tony Blair, “ours are not European values, they are values of the human spirit” (a phrase he uttered as bombs rained over Baghdad). They predicated admission into the club on a blanket acceptance of existing rules. European International Law was the one law to rule them all. Asian, Chinese, Hindu, Indigenous, Islamic, and Japanese conceptions of international law were best left to academics.
Mindful of the revolutionary spirit spreading across the Third World, Europe intervened through economics (but not political economy), recasting the civilising mission as the modernising one. Third World states suffered from economic underdevelopment and international law would play its part in upgrading their societies along analogous lines. The charge was accurate but also ahistorical. Shortly before his assassination, Rodney remarked that Europe Underdeveloped Africa and we could not tackle depravity in the Third World without reflecting on affluence in the First. This argument, however, would call into question European living standards, self-regard, and colonial legacies.
In its stead, publicists delivered a technical narrative of development. To help Third World societies modernise, international financial institutions would provide conditional loans and First World expertise to guide them to the promise land. It may involve curtailing aspects of Third World sovereignty, but these are necessary and benevolent. The aim was to integrate Third World states into the global economy, irrespective of the inequalities and exploitative dynamics that persist between states. Coincidentally, talk of the developing state coincided with a return of non-state entities as vital actors in the international. Enter the Jessup.
In the 1950s, Philip Jessup penned a book: Transnational Law. While he rallied against neo-colonial economic relations, he also developed a novel approach to international law, culminating in the birth of investment law. As was to be expected, many Third World states rejected colonial land holdings or contracts. They examined methods of expropriation to reclaim stolen resources. For example, Egypt nationalised the Suez Canal, then French owned. In response to their audacity, France quickly united with the UK and Israel and bombed Egypt. Yet, as far as international law was concerned, disputes between governments and private companies were municipal affairs (remember the EIC?). Enter the new field of investment law and a series of nakedly racist rulings.
According to the arbitrators assigned to resolve disputes between Third World states and First World companies, Third World municipal law was irrelevant to these relations. Instead, the arbitrators professed we must treat them as international. While this conflicted with international law, the language reveals the racial dynamics at play once again. “Islamic Law contains no principles sufficient to interpret a contract”, one arbitrator claimed, a surprise to generations of Islamic jurists. “The contrast between stages of development in Western countries and Asiatic countries,” another opined, was too great for their domestic systems to claim authority. A third pulled the rabbit from the hat: “while English municipal law is inapplicable, some of its rules are so firmly grounded in reason, as to form part of this broad jurisprudence—this modern law of nature.” In the end, inherent backwardness bound Third World sovereignty, requiring the injection of colonial laws once more. Plus ça change, plus c’est la même chose.
I concluded the lecture with a review of the authorities. I spoke about legal personality and legal standing, invoking article 35(1) of the ICJ Statute and article 93(1)(2) of the Charter. Statehood is now firmly fixed at the core of the liberal international legal order. However, much like sovereignty and self-determination, statehood is also a contested political concept. The Montevideo Convention presents the criteria for statehood: a permanent population, defined territory, effective government, and capacity to enter international relations. It also manifests upon declaration, with or without the recognition of others, at least according to the Convention. In realpolitik, the picture is murkier. For example, Palestine meets the criteria, and it declared statehood in 1988. In addition, over 130 states recognise it as a state. Yet, it continues to wallow in a state of not-quite-statehood, Israel and its occupying cabal dictating life and death to gruesome effect. Closer to home, we recall Catalonia held a referendum and, with overwhelming popular support, declared its independence. Overnight, Spain arrested, prosecuted, and imprisoned its leaders.
Are these expressions of self-determination or challenges to the sovereignty of others? Both? Could it be otherwise? Posed differently, must our world remain frozen in time, anachronistic political concepts stifling our thinking and our being? The Westphalian model of sovereignty developed in the 17th century, consolidated during the colonial era and again during the decolonisation one. Is this the end of political imagination? Is it possible to challenge borders without being imprisoned or killed? Or is sovereignty both the departure and finishing point of human history? I ended the lecture with these questions. I hoped that students walked away perturbed about international law’s complexities. The answer, I confessed, was not more law or better law. Rather, to redress the predations and inequalities that brutalise our world, I think students and scholars must learn to ask better questions.
Let me finish this blog post where I began: pedagogy compels experimentation. Students might not enjoy hearing this – who wants to conceive themselves as a guinea pig? But there’s another way of thinking about it, and one I will explore in a future post.
Experimentation is essential to ideation, and I borrow these principles from design thinking. Richly interdisciplinary design thinking principles provide a cognitive frame that complements legal pedagogy (or any disciplinary pedagogy). As we do in law, designers begin by defining a problem; issue-spotting as many law students come to know it. However, while the legal frame requires us to look at past legislation and jurisprudence, the design frame encourages us to gaze into the future. In this way, ideation is the precursor to creativity. Informed by possibility rather than parameters, ideation is essential to innovation. And, if we accept we are unlikely to find solutions to today’s problems in yesterday’s laws, legal pedagogues must weave ideation into their teaching.
Upon reflection, I think I could have done this better. My lecture was historical, critical, and, I hope, stimulating. Still, I omitted a key element from the design frame: the prototype. While I asserted the need for a novel conception of sovereignty, I did not provide students with the opportunity to visualise what this might look like. What do we wish to keep? What are we willing to abandon? Are there certain norms we consider essential, desirable, or deplorable? A collaborative exercise in building a prototype for a post-Westphalian sovereignty would have provided students with a much better grasp of the problems of our anachronistic one. Frankly, it would have also provided me fodder for a few more blog posts.
Education played a strategic function in advancing the colonial project. Local epistemes were trampled, with a colonial construct superimposed upon mind and body. This practice stemmed from a profound intellectual and cultural arrogance. “The most dangerous of all delusions is to think that your social reality is the only reality worth talking about.” (Sefa Dei and Kempf, 2006) Such was the character of the Eurocentric epistemology that characterised the colonial era, and that came to dominate the international legal curriculum. As Rafael Quintero Godínez and I argue in a forthcoming article on TWAIL pedagogy, the riposte to the epistemic violence of colonial education is an anti-colonial pedagogy that breaks from the oppressive paradigms imposed.
Critique helps us reveal the power relations that inform a colonial legal and cognitive frame. However, an anti-colonial outlook must do more than condemn the oppressive dynamics. Anti-colonial pedagogues must be epistemically adventurous, working with students to effect pedagogical and cognitive change. Like broader forms of anti-colonial struggle, education is a community-building exercise. Maybe I tried to do too much; or maybe I was not ambitious enough. Anti-colonial pedagogy sets out to change the world. For that to happen, we must break with the present in the way we think and the way we teach. This was one attempt. From an anti-colonial viewpoint, we should teach law students to expect many more.
Image: Pyramids by Egyptians. You’re welcome, world!