By Dhruv Shekhar
The age of the conquistadors (Spanish for ‘conquerors’) was one of the earliest instances of what we know today as colonisation. This Hernan Cortes led movement marked a proud legacy of exploration, conquest and the establishment of trade routes in the far off lands of the Americas and Africa. While colonialism has been discarded for a long time now, a new kind of colonialism has rushed in. This is what we call the new-found international order.
What is wrong with the present world order
Seething criticisms of the said order persist. These are partly founded on the belief that the present day international order is still an Old Boy’s Club. International law is founded on the principles of the victor’s justice and a Euro-Christian construct. Thus, it charts a course which is ignorant of the ‘Third World’ and feminist understanding of the law.
These fears of the aforementioned factions are not fiction, instead, they are reflected in a myriad of instances. For instance, Justice Amnoun’s separate opinion in the seminal case of ‘Barcelona Traction’?stated that the development of international law cannot have its sole object as the protection of international economic activities of the industrial powers, instead, there should be a movement toward universalism.?Let us look at the critiques as levelled by the two factions against international law, while simultaneously deciphering whether these critiques work on the tenet of a methodology or movement.
International law: Play of the powerful
One of the most prominent critiques is one of legal paganism whereby international law, by its very nature, ensures the eminence of the stronger powers. The prosecution of nefarious emissaries of the Third Reich and its allies at the War Tribunals at the end of World War II were widely lauded but also provided the basis to another criticism, that is, the pursuance of victor justice. A continuation of the same is reflective of dominant capitalist powers, resulting in the criticism by TWAIL (Third World Approach to International Law) scholars who state that the Western world operates on a concept of divisive universalism. These scholars look at the existing order as supportive of the corporate concerns of the West over everything else.
The challenge is to replace this phenomenon of fragmentation with unity while simultaneously ensuring that sovereignty of nations is not compromised by the creation of a supra-state structure. Even in the scenario that international law order unifies domestic and international law, the overarching concern remains that it should not evolve into an imperialist global law.
Feminist critique of international law
International law and those practising it are reluctant to include outsiders, namely women, in the international arena. Radical feminist scholars like Catherine MacKinnon have argued that the dais of this stage never really provides representation to feminist views.
What mechanism should be employed to rectify it? Hillary Charlesworth?provides for a bifocal approach to address this issue. Her first approach of deconstruction entails a mechanism employing rectification of all the concerned problems while keeping women’s interest as an undertone. The secondary approach of reconstruction partakes revisioning of the entire gendered concept of approaching the international law. While the former follows the tone of a method, the latter resounds with a movement.
There exist some flaws in the latter approach; the possibility of erosion of gendered understandings, as Charlesworth remarks, is multiplied when concerned with approaches such as history or anthropology. However, following a near-identical approach in the reconstructive understanding of international law is challenging. Another concern relates to the choice of an ideology of feminism to stop this rot, for feminism in itself abounds various understandings. While some may state that approach of essentialism is the ideal construct to counter this problem, such an understanding would be grossly mistaken as this view would hold women to be generic beings with stereotypical concerns.
Thus, a combination of the previously stated bifocal approach could be argued as the ideal approach to this issue. This approach helps in deconstructing the veiled male approach to international law and equivocally and organically reconstructing the foundational notions concerning international law without the defects of subordination of one to the other.
An important interlude at this point is to do away with the misconception that Feminist and TWAIL approaches to international law are intrinsically linked due to their campaign against the Western conceptualisation of international law. The latter is a lot less radical and does not aim at subverting the fundamental institutions of statehood in the international law order while the former aims at dealing with the exclusion of at least half of the world’s populace.
Method or Movement: The lingering dilemma
Another pertinent issue is the categorisation of the aforementioned schools as methodology or movement.?A method is more analogous to the term theory, a dialectical two-dimensional approach which aims at theorising and hypothesising the problems and finding solutions through an equivocal medium. A methodology, however, does not simply entail theorising but is in the merger with other academic discourses. This is exhibited in an excavation to deconstruct the plight of women in international or the subversion of the third world within the realm of international law.
A movement is one which goes over and above this theoretical understanding of what constitutes a problem and takes a revolutionary approach aimed at shaking foundations through practice and function. Traces of it are also present in the schools of critical approach towards international law, be it the hypothesis of the development of a ‘global state’ and ‘internalisation of law’.
Walking the middle lane
It would be inchoate to suggest that one methodology approach exists without movement, for the hybrid nature of approaches can truly solve the problem of multiplicity in international law. While international law is founded on the beliefs of it being representative of the mainstream and the “other”, it is the subaltern who remains ignored and it is partaking such an approach that can solve a crisis of diversity of diversities, as stated by B.S. Chimni.
Such an approach is more likely to solve the twin problems of international law, namely, its representativeness and its practical application.
Featured image source -?Visual Hunt
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