- Rohini Sen*
A few weeks ago, half the world went into complete lockdown on account of the rapid and uncontrolled spread of the COVID-19. This invisible beast has put to test many things, including our capacity to survive as a human race. It has questioned our methods of consumption, our unsustainable structures of production and exposed the fundamental inequalities these structures generate. Those who may survive this are those who can afford a roof over their heads and food. And those who may not are living in abject poverty, disguised unemployment and working from the frontlines to protect the beneficiaries of this system.
There has been complete panic in understanding the pandemic, followed by austere emergency measures to stop its spread. Individuals have resorted to large-scale hoarding of food and essential items, as well as non-essential supplies.[1] There have been numerous instances of violence against and eviction of frontline health workers from their premises for fear of catching the virus.[2] Others have been in complete defiance of the lockdown and safety regulations, dismissing the severity and contagion capacity of this disease. States are struggling to protect frontline workers from infection and the absence of healthcare provisions and infrastructure is being deeply felt across the globe.
Caught between panic and isolation, individual and international responses to the crisis are located in a grossly inadequate understanding of the global order and its interconnected systems. With the quarantine likely to be extended, people are unable to fathom how they arrived at this critical juncture. Caught in suspended animation, the world is waiting in uncertainty to resume business as usual, evoking a popular culture image of the doomsday.
The need of the hour is thinking through the cause and effect of the crisis without disruptive panic and we seem to be failing miserably at that. If anything, responses to this crisis have revealed a fundamental lack of critical thinking and scientific temperament across the spectrum. And yet, if most of us had access to education that gave us the tools to think critically and scientifically, we would possibly not be here, in this catastrophic moment. Heuristics like that would have allowed us to reduce our consumption, bolster our healthcare and redirect ourselves to more sustainable and inclusive forms of living.
As we watch the world struggle to fight this virus, it slowly dawns on us that we may have failed at creating an environment that is conducive to teaching and being receptive to critical thinking, especially within education systems. I understand teaching as an act of provocation. And like any other stimulus, the provocation for critical thinking and teaching resides as much in the manner as it does in the language. In keeping with my pedagogic practice, I have chosen to break away from conventionally circumspect academic iterations as well.
In this paper, I discuss the need to inculcate and nurture critical thinking in students using the disciplinary example of Critical International Law (CIL). I unpack what constitutes CIL and the need to teach it. This is juxtaposed against how the discipline is currently taught in law schools and the kind of knowledge gaps that it creates. I emphasize on the particular requirement of teaching CIL in the Global South and how context is relevant, through my situated lens.
I. Critical Education through (Critical) International Law
What does critical thinking and pedagogy entail and why is it necessary? I will use the example of international law and CIL[3] to speak of this. Imagine you are a law student answering the following question for your examination – How is international law related to COVID-19?
The most common answer to this question would be – it isn’t! International law can tell us how to chart out the legal responsibility of states in this catastrophe as I will explain subsequently. But it has no bearing on the crisis itself. And yet, here I am, telling you that international law is deeply relevant and connected to how this crisis has unfolded. Most States’ healthcare infrastructure is crumbling under the weight of this epidemic. Emergency measures have been put in place and international co-operation is sought in providing medical and technological assistance across borders.[4]
States in the Global South are struggling to cater to their huge informal economy and places such as India are looking at deaths from hunger and poverty in numbers that are comparable to the virus itself.[5] Most, if not all, governments are announcing huge bailout packages, tax moratoriums and economic restructuring in the backdrop of this economic meltdown. The event, IMF warns, is likely to cause a global recession worse than the 2009 financial crisis.[6] Amidst all this, there is talk of imposing sanctions on China and demanding reparations for the unmitigated spread of this virus.[7]
Now, mainstream international law is looking to address this through the principle of State responsibility[8], by asking questions such as – what is China’s role in the spread of this pandemic and whether it is responsible for failing to notify other States on time? Under what legal framework and provisions can China be held accountable for this failure? Can it be taken before an international court and be asked to pay damages? [9]
Students and international lawyers across the world are using existing legal frameworks to consider China’s responsibility to the international community, and other relevant questions. While answers to these questions may help us mitigate some of the immediate damage, they do not help us understand the interconnected causes that can lead us to effective solutions. It is a process of post-facto accountability and continues to hold focus on States whereas the current pandemic is the product of a systemic, long-standing problem. How do we know this? Let us look at the current crisis once again. Works of leading epidemiologists have indicated that the appearance of successive cases of viral flu such as the SARS, MERS, Swine flu and now, COVID-19 are not isolated incidents. The increased occurrence of such diseases is closely linked to food production and how multinational corporations stand to profit from these modes of production.[10] Most States are indifferent to, if not complicit, in these production processes. Unsustainable practices such as maintenance of global capital flow facilitate land grabbing in primary forests and smallholder-held farmland worldwide, especially in the Global South. Rapid deforestation and development, driven by investments with zero impact analysis or safety measures in these regions, disturb their biodiversity. This leads to the emergence of previously boxed in pathogens which then spill over to produce, livestock and human communities.[11] In a deeply global and interconnected world, this does not bode well.
Most States, however, prioritize their economic growth at the expense of the environment and continue to pursue these highly virulent modes of production and transmission. These processes benefit the transnational global elite and ensure that the status quo of inequality remains while putting those who are already vulnerable at risk. The Global South is not compensated for such extractions and given the huge presence of an informal economy, they are already mired in inequality and unemployment. In the event of a pandemic, these regions are the most ill-prepared to respond at every possible level, as one can see from the plight of migrant workers in India. This string of interconnected events is exactly what CIL helps us unpack.
What then, is CIL? I use this term as an amalgamation of all techniques that subject mainstream, Eurocentric international law to various forms of critiques, especially its structures and tendency to mask history. International law is not monolithic. It has many, many faces that emerge from colonial, semi-colonial, the third world[12], post-colonial, indigenous, critical race theory and queer-feminist approaches, among several others.[13] 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.[14]
Lands that belonged to sovereign rulers and communities of Asia and Africa were claimed forcefully by European colonizers. Colonies were set up in these regions and all histories of law, governance and civilization were absorbed into Europe and effaced. These regions were drained of wealth and resources and the continued colonial presence was justified by citing the need to ‘civilize’ the ‘uncivilized’.
Soon after, the European nation-state was put forth as the only acceptable form of territoriality. All others were forced to conform if they wanted to be a part of this international community. Europe imposed its Judeo-Christian laws on the rest of the world and called it international law - the chosen legal system that governs this group of States.[15] These newly formed States found themselves in an already unequal system and had no choice but to place faith in its ‘universal project’. The terms ‘civilized’ and ‘uncivilized’ were replaced by ‘developed’ and ‘developing’. The new entrants were told that international law treats everyone as a sovereign equal despite their inherent disparities and if they followed the European standards of law and culture, they would all arrive at the same level of development.
Beginning in 1945, the decolonization movements, bolstered by the arrival of International Human Rights instruments, increased the presence of the third world in international institutions such as the United Nations. This counted as true inclusion and the mainstream understanding of international law stopped historicizing from this moment. However, as CIL has revealed, this legal system continues to hegemonize through its institutions and its most consistent apparatus – the nation-state – even today.
Designed to serve the colonizing powers back in the day, it is now controlled by a group of transnational elites who have replaced the civilizing mission with the development project.[16] The birth of mainstream international law is deeply connected to the growth of capitalism and most of its structures have been built to sustain this unequal system.[17] The resources of the world are finite. However, mainstream international law creates an illusion that development is linear and there is enough for all States to consume and grow at the same pace[18]. It lures in post-colonial States with the promise of universality, human rights and equality.
However, it erases all traces of its violent origin and makes inequality look like a development problem that can be addressed through trade, growth and adherence to the terms of the global elite. Developing countries are given a seat at the table and told to play by the rules of the game. What they are not told is that the game is rigged to begin with and no amount of trade/investment treaties will balance that which is unequal from the outset.
Development, which is the focus of mainstream international law’s growth, will always be at someone’s expense and at great cost to the natural environment.[19] CIL tells us that an increase in the number of States from the Global South will not change the order. It also points out the maladies inherited by the post-colonial States themselves.[20] Those who inherit power as international law will then go on to oppress and continue with this exploitative system. Thus, when using the lens of CIL, COVID-19 is not just a crisis that needs us to hold China accountable. It helps us understand how those suffering the most are the States with ‘less developed’ capacity and unaccounted for informal economy. It asks us to consider how money spent on military infrastructure may have been better spent on strengthening the welfare apparatus. It also asks us to consider how we may have to fundamentally reimagine our relationship to land, laws and ownership of resources to prevent further destruction and outbreaks. In this moment of uncertainty, then, CIL holds the potential to help us understand the root causes of these problems and allow us to transition to more inclusive and sustainable practices.
II. Why is this Form of Teaching Necessary, Especially in the Global South?
Currently, students across the globe are taught international law through standard textbooks that depict treaties, customs and institutions such as the UN and ICJ as the pillars of the discipline. Students, and possibly teachers, are already given the terms of the debate – is international law really law if you cannot implement or enforce it? Within these pre-decided terms, they constantly find themselves discussing its less ‘law-like’ qualities in comparison to domestic law. They are preoccupied with concerns such as the difficulty to implement or enforce international law, the geopolitics and how it is all about the military and economic might of the powerful States.
While these questions are pertinent, students are rarely taught about the history of international law, its colonial connections, imperial continuities and its deep-seated relationship to capitalism. Their starting point is a moment of great inequality among States and from thereon, their investigations and analyses are limited to how this inequality manifests.
Rarely, if ever, are they taken to a moment in time that made this inequality possible. This system of teaching international law allows for knowledge gaps to persist. In the absence of this critical (pun intended!) heuristic, any study of international law is a study having no significance for the future. Thus, if international law has many forms then its teaching cannot be universal either in its scope and prospects.
If students are taught CIL instead of (or along with?) the Eurocentric version, they can identify global governance gaps much better and more effectively. Instead of taking inequality as status quo and development as the ultimate goal, they can reset the terms of the debate itself. And, ask questions such as how is this inequality maintained and what else can we aspire to besides this all-consuming idea of development?
As a young feminist scholar and teacher of international law from the Third World, I think teaching CIL here, in the Global South, has twice the significance. Legal education, particularly of disciplines such as international law, bequeath certain ideologies and worldviews that are harmful for intersectional identities and students in the Third World to imbibe and accept. If they are taught international law without critique and contestations, they normatively internalize subtle and deceptive hierarchies between the First and Third World, between genders and between class categories.[21]
The most common example of this is the development narrative. For students in the Third World, learning of the origins of their inequality is far more important than simply learning the existing free-trade regulations in the WTO to comprehensively address the problem. A more nuanced instance is the human rights domain, often used by the First and Third World alike to speak of progress. As Third World feminists point out, while rights do ensure protection and visibility, they often render invisible the accounts of women and the queer community who are not from the Global North.[22] Given their location, this is a disadvantageous outcome. Students of the Third World should be taught critical theories and approaches in order to intercept their unquestioning inheritance of international law. This should enable them to lead the reformative charge as participants in the discipline. They should engage with histories and alternate narratives to uncover past injustice and their continuities instead of letting them persist, unmindfully, as innocuous divisions or altruistic measures.
I come to this conclusion having inhabited the convergence of three distinct identities - as a former student of international law having acquired my training in public international law from Western knowledge systems and sources, as a teacher of international law in the Global South and as a scholar of international law from the Global South.
The transition from and the diffusion of one category into another has forced me to confront these questions about teaching international law to students in India specifically and the Global South broadly. There is a serious need to destabilize the discipline beyond academic discourses and use an alternate, critical pedagogy to teach international law, mindful of its geographical context. This approach will make possible a more democratic, inclusive and non-essentialised reading of the subject and build effective capacity in the Global South. The possibility of actualizing this in the Global South is much greater given that for students in the Third World, the intersectional identity resonates both at a personal and political level.
Learning/teaching public international law in the Global South treads a fine balance between what is presumably normative and acknowledging the value of its situated-‘ness’. In the present milieu of legal education, any possible engagement with critique is either in the form of an elective course or at the level of post-graduate academic degrees. This format needs to change with immediate effect. I have taught mainstream international law as well as CIL to students of different age groups and disciplines. And, I usually observe a stark difference in the approach of students who have completed a basic international law course as opposed to students who have engaged with critiques of the subject. For instance, the former category understands formal and substantive equality of States only through the lens of power disparity in the present day. Students who have done CIL, on the other hand, can locate their historical origins and institutional continuity with much greater awareness. Acknowledging this is especially important for teachers and students in the Third World, given how important international law has become in spheres more proximal to everyday existence through global law schools and transnational legal practices.
In the backdrop of greater interconnectedness and complex global problems such as the COVID-19, it is undesirable to let students be recipients of uncritical international law. Instead, we ought to facilitate their transition to learners of CIL and unlock transformative potentials, if any. I’m using recipients and learners respectively because I see the latter (category) as possessing some agency as opposed to the former. Such a learner may be suitably enabled to identify structures that are harmful as opposed to looking for a way to only work optimally within them. To illustrate then, a student of CIL is more likely to think of an eco-social solution, a feminist telling or a legal framework to protect bio-diversity as responses to the COVID- 19 crisis than simply asking China to pay.
Conclusion
Developing critical thinking is a continuous process that allows us to take a close look at our politics, failings and blind spots (including echo chambers) in actualizing any real change. The teaching of CIL, especially in the Global South, is a step towards this transformative journey. Those of us who teach (and continue to learn) CIL look upon this moment of rupture as a possible moment of change as well.
Mounting any resistance to Eurocentric views, be it in scholarship or teaching, is likely to be met with backlash and opposition. And while there isn’t a single way to look at teaching and/or learning, this particular act of excavation will require us to shake the very foundations of the discipline itself. However, as has been evinced from this experience, the world, especially the world of legal education, is ready for this change.
As we watch leaders across the globe struggle to salvage healthcare and the workforce, the resounding need for critical thinking and response is being felt deeply. And as scholars of international law, we hope to forge this reformative charge through the CIL teaching project. One that may give us a truly inclusive community and change the very notion of these institutions that fail us today.
*Rohini Sen is an academic, feminist and a teacher/student of Critical International Law. She teaches and writes on TWAIL, pedagogy and queer-feminist approaches.
[1] Isis Almeida and Agnieszka de Sousa, ‘Countries Starting to Hoard Food, Threatening Global Trade’ Bloomberg News (25 March 2020) <https://www.bloomberg.com/news/articles/2020-03-24/countries-are-starting-to-hoard-food-threatening-global-trade>accessed 18 April 2020. [2] Hannah Ellis-Peterson and Shaikh Azizur Rahman, ‘Indian doctors being evicted from homes over coronavirus fears’ The Guardian (30 March 2020) <https://www.theguardian.com/world/2020/mar/30/indian-doctors-being-evicted-from-homes-over-coronavirus-fears> accessed 18 April 2020. [3] I use the terms as distinct here only to account for how the discipline is taught. What passes for international law and its teaching in its current form is Eurocentric international law and what I call Critical International Law is how international law ought to be taught. [4] Rick Gladstone, ‘U.N. Security Council ‘Missing in Action’ in Coronavirus Fight’ The New York Times (2 April 2020) <https://www.nytimes.com/2020/04/02/world/americas/coronavirus-united-nations-guterres.html> accessed 20 April 2020. [5] Sandeep Datta, ‘India: Migrant workers' plight prompts UN call for ‘domestic solidarity’ in coronavirus battle’ United Nations News (2 April 2020) <https://news.un.org/en/story/2020/04/1060922> accessed 18 April 2020. [6] John Bluedorn, Gita Gopinath, and Damiano Sandri, ‘An Early View of the Economic Impact of the Pandemic in 5 Charts’ (IMFBlog, 6 April 2020) <https://blogs.imf.org/2020/04/06/an-early-view-of-the-economic-impact-of-the-pandemic-in-5-charts/> accessed 18 April 2020. [7] PTI, ‘London-based International Council of Jurists urges UNHRC to impose ‘exemplary damages’ on China for spreading coronavirus’ The Hindu (New Delhi, 14 April 2020) <https://www.thehindu.com/news/international/icj-seeks-unhrc-to-impose-exemplary-damages-on-china-for-spreading-coronavirus/article31258056.ece> accessed 18 April 2020. [8] These are laws that tell us when and how States are responsible for violating their international obligations available in Draft articles on Responsibility of States for Internationally Wrongful Acts, 2001. [9] Mainstream international law understands this as a question of State responsibility, where, the arguments are limited to what China can do as a member of the international community. See also for Eurocentric international law arguments on holding China liable: Peter Tzeng, ‘Taking China to the International Court of Justice over COVID-19’ (EJIL Talk, 2 April 2020) <https://www.ejiltalk.org/taking-china-to-the-international-court-of-justice-over-covid19/?utm_source=mailpoet&utm_medium=email&utm_campaign=ejil-talk-newsletter-post-title_2> accessed 19 April 2020. [10] Rob Wallace, ‘Where did coronavirus come from, and where will it take us?’ (Uneven Earth, 12 March 2020) <http://unevenearth.org/2020/03/where-did-coronavirus-come-from-and-where-will-it-take-us-an-interview-with-rob-wallace-author-of-big-farms-make-big-flu/?preview=true&_thumbnail_id=4111&fbclid=IwAR2vaqhooJ361qkgr_5k25CFPlpqhJVKvQQPvzXm0xuuRBhBIZ7JSGzsDro> accessed 19 April 2020. [11] Rob Wallace, Big Farms Make Big Flu: Dispatches on Influenza, Agribusiness, and the Nature of Science (NYU Press 2016). [12] The terms Third World, Global South and developed/developing are used here in full awareness of the debates surrounding them. They are only intended to categories of analysis for the purpose of this essay and used as is indicative in TWAIL scholarships. These are dynamic terms and much like the movement of ‘colonial’ international law, these categories too, are flexible and move with the empire. [13] Makau W. Mutua, ‘What is TWAIL?’ (2000) 94 Proceedings of ASIL Annual Meeting 31; Hillary Charlesworth, Christine Chinkin, and Shelly Wright, ‘Feminist Approaches to International Law’ (1991) 85(4) American Journal of International Law 613; Ruth Gordon, ‘Critical Race Theory and International Law: Convergence and Divergence Racing American Foreign Policy’ (2000) 94 Proceedings of the ASIL Annual Meeting 260; Diane Otto, ‘Taking a Break” from “Normal”: Thinking Queer in the Context of International Law’ (2007) 101 Proceedings of the ASIL Annual Meeting 119; Vasuki Nesiah, ‘Decolonial CIL: TWAIL, Feminism, and an Insurgent Jurisprudence’ (2018) 112 AJIL Unbound. [14] Antony Anghie, Imperialism, Sovereignty and the Making of International Law (Cambridge University Press, 2004). [15] C. H. Alexandrowicz, An introduction to the History of the Law of Nations in the East Indies (16th, 17th and 18th centuries), (Clarendon Press, Oxford, 1967). [16] BS Chimni, ‘Third World Approaches to International Law: A Manifesto’ (2006) 8 International Community Law Review 3, 11. [17] ibid. [18] B.S. Chimni, ‘Critical theory and international economic law: a third world approach to international law (TWAIL) perspective’ in John Linarelli (ed.), Research Handbook on Global Justice and International Economic Law, (Edward Elgar Publishing, 2013). [19] Walter Rodney, How Europe Underdeveloped Africa, (Howard University Press, 1981). [20] Anthony Anghie, ‘Comment on Simon Chesterman, `Asia’s Ambivalence about International Law and Institutions: Past, Present and Futures’’ (OpinioJuris 16 January 2017) <http://opiniojuris.org/2017/01/16/comment-on-simon-chesterman-asias-ambivalence-about-international-law-and-institutions-past-present-and-futures/> accessed 20 April 2020; B.S. Chimni, ‘Asia, International Law and International Institutions: A Comment’ (OpinioJuris 17 January 2017)<http://opiniojuris.org/2017/01/17/asia-international-law-and-international-institutions-a-comment/> accessed 20 April 2020. [21] Mohsen al Attar and Vernon Ivan Tava, ‘TWAIL Pedagogy - Legal Education for Emancipation’ (2010) 15(7) Palestine Yearbook of International Law; See also, Mohsen al Attar ‘‘Teacher Don’t Teach Me Nonsense’: Subverting Eurocentricity in International Legal Pedagogy’ (Mohsen al Attar Blog, 30 August 2019) <https://mohsenalattar.org/teacher-dont-teach-me-nonsense-subverting-eurocentricity-in-international-legal-pedagogy/> accessed 20 April 2020. [22] Vasuki Nesiah, ‘The Ground Beneath Her Feet: 'third world' feminisms’ (2003) 4(3) Journal of International Women's Studies, 30.