Of Contextuality and Association
Geographical specificity plays a pivotal role in shaping our understanding. Seasons have different meanings for people from different geographies. Words, phrases, folklores, and images have their meanings known to the region of the people they belong to. These words, folklores and pictures have their relevance- geographical and others- without which they mean nothing. These are reference points that help in constructing concepts. Picture association, word association, story association and other such forms are significant directions- givers of our understanding of concepts.
Understanding a concept or a process, the constituent elements of which are foreign, is difficult. What winters mean to a State situated near the (snow-laden) Antarctica, would be very different to the winters for the State situated on the equatorial belt. Summer would mean sunlight, a ray of hope, and warmth for a winter-dominated state, but the same would mean harsh, scorchy and scathy heat for a summer-dominated state. The months of June and December have different relevance for different people. Still, the popularity of writing ‘warm regards’ in months of harsh summer is unimaginably high in the global South.
This subjectivity in relevance and references, though pivotal in developing an understanding of concepts, has been relegated to the periphery. In the case of shaping the understanding of disciplines of study, the disciplines dominated by alien references create a dissociated and blurred understanding. International Law, one such discipline, has primarily been the creation of Europe. Throughout the textbooks of Public International Law, Europe (and scholars from Europe) has projected itself as the cradle of intellect. Those books have told the rest of the world that international law has been a product of Europe, with its principles and praxis evolving either in European cities like Westphalia, Rome, and Paris or in the works of European scholars like Francisco de Vitoria, Francisco Suarez, and Hugo Grotius. The popularity of Vitoria and Suarez is such that they have even been regarded as the “founders of the philosophy underlying all laws”. Professor James Thuo Gathii, an erudite TWAIL scholar, argues that Geneva, Strasbourg, New York and Washington DC are the places that “our discipline celebrates as producers of the type of international law which in turn becomes the benchmark for the efficacy of international law produced elsewhere”.
European consciousness carefully crafted ‘imperialism’ and ‘colonialism’ as a cultural reference for the rest of the world. Though many would argue that colonialism has ended, it would be wrong to not acknowledge the different forms of imperialism that continue to daunt the colonies even today. Most such issues are unprobed and unaddressed. Professor Antony Anghie’s academic vehemence shows international law’s attempt to “establish a universal system of order among entities characterised as belonging to different cultural systems”. S. Grovogui argues that international law has engendered colonialism. Scholars from the global South do not question the colonial past of the word ‘civilised’ in ‘general principles of law recognised by civilised nations’ from Article 38(1) of the Statute of the International Court of Justice. This also was highlighted by Judge Fouad Ammoun in his separate opinion in the North Sea Continental shelf case. Scholars reveal the cosmetic adjustments made to the interpretation of the word ‘civilised’ to reassure us that we have been decolonised.
Of Eurocentricism and Epistemic Injustice
The field of international law fancies European authors and European references. Eurocentric references are alien to people outside Europe. For the people in locations far-off from Europe, the Eurocentric references fade even more, rendering the discipline of International Law more alien. The Law of Nations has been told to us as International Law by European writers. It endures to be dominated by European writers and the epistemic injustice created for years now remains unaddressed. There are not enough studies and writings from beyond Europe even today. To answer why this happens, it is pertinent for us to answer many other questions. Colonialism traverses beyond political and economic processes. A pervasive form of colonialism exists in the academic publishing world, which renders the academic work produced in the global south marginalised. Regrettably, ‘Who writes from where?’ has been a pertinent question for the publishers. The quality of the academic work is not always the sole relevant concern- the geographical, economic, or gender positioning of authors, also has bearing on the opportunities for publications for the authors. Professor Gathii in an extremely intriguing empirical study reveals the “international law’s historical and continuing complicity in producing racial inequality and hierarchy, including slavery, as well as the subjugation”. He relies on the vast content published by American Journal of International Law (AJIL) and sister publication AJIL Unbound from when it was first published in 1907 to 2021.
Do works from TWAIL (Third World Approaches to International Law) undergo a stringent and minute critical lens? Is there an equitable and fair weightage in footnotes and references to the works from the global South? These questions remain an area of enquiry. In the available works, do the works from global north and those from the global south have equal possibility of being cited, remains another question of empirical research. In the metamorphosis that the international legal scholarship is undergoing, these unsettling questions are critical. The adoption of social science methods of research in international legal research has been significant in attributing thrust to the voices from the South. The international law has been transforming owing to the realisation of race question in the international law framework by the Critical race theory, the history-aware approach questioning Eurocentricism by TWAIL, sexual violence as a war crime by Feminist Approaches to International Law and other debates influenced by the post-colonial thought.
The global (and therefore renowned) publishers located in the geographical north bear the global north’s message clear: What we write, you will read; what you write, we may read. The global north controls the knowledge production and its standardization, and the global south is forced to the perils of this imbalanced system and the race it creates for the global south scholars to conform to. The scholars of the global south are subjected to multilayered academic imperialism including researching amid, and defying the known struggles of the third world, being forced to conform to a prescribed standardization and the western indexing system (like SCOPUS, Web of Science, ABDC), compelled to write in a European language and struggles for publication in an academic colonial world. There exists pervasive academic imperialism preluding equal opportunities for the academic existence of scholars from the South. Scholars from the South witness degrees of bias in the political economy of legal knowledge. Not only the fallacies of neutrality and fairness of international law but also of international legal scholarship seem exposed.
Books from the Global North scholars like J G Starke, L Oppenheim, Ian Brownlie, Malcolm N Shaw, Malcolm Evans, Michael Akehurst, and David Harris are the ‘universal’ reference books for Public International Law, while seminal works from the global south scholars like Antony Anghie, B. S. Chimni, R. P. Anand, James Thuo Gathii, remain undervalued as compared to the pivotal and critical debates that these works have instilled in international law discourse. European scholars regard the early European scholars as the epitomes of intellect and founders of international law. Unfortunately, these works remain under-read even by the students in the global south. Scholars from the global south subconsciously fancy and eulogise the western scholars’ works as they have been trained to refer to and rely on such works through their early studenthood. The European works that Scholars from the South read and engage with stays as rhetoric, and when they encounter conflicting debates like reparations for coloniality, return of colonial loot, or neo-imperialism, they find themselves in a place of discomfort. They have no answers for legitimate (but not legal) claims arising out of coloniality in the existing Eurocentric international law- the gap between what they study, and what they encounter is huge.
Academic imperialism has a deep-rooted omnipresence. It persists beyond colonialism which has been nurtured through the global north’s control of knowledge production, unaffordability of journal access, academic performance indices, celebrated indexing culture (and the resulting increase in predatory journals), the dominance of the European language, and others. This epistemic injustice in international legal academia tends to the “exclusion and silencing” and “invisibility and inaudibility” of voices from the global South scholars.
The right to access the knowledge that is produced in the north and the one that is produced by the South but published in the north is robbed from the scholars of the global south. An egalitarian international law discourse depends on proportional voices from the global south in the universalized north voice. The need for universal academic accessibility has been felt but not demanded by the Global South scholars. Spiralling publishing service charges create economic inequality and act as deterrence for the libraries, Universities and scholars from the global south. The need for open access journals is important even for the academic dissemination in the South of the global south, but the same has not been highlighted enough. Unfortunately, even to raise such pertinent concerns, north dominated journal and publishers are the suitable platforms for the reasons of visibility and authenticity of voice. The global south has witnessed such paradoxical situations often.
Conclusion
Given the strong threshold of debates that critical legal frameworks- like Critical Race Theory (CRT), TWAIL, Fourth World Approaches to International Law (FWAIL), and Feminist Approaches to International Law, Marxist Approaches to International Law- have, there is a hope and lessons to learn for the global south scholars. For instance, African TWAIL scholars have set an example for the Asian and other TWAIL scholars to use their geographical and cultural potential of research. Afronomics Law including African Sovereign Debt Justice Network and African Journal of International Economic Law, is an interesting and exemplary initiative by scholars like Professor Gathii, Professor Olabisi D. Akinkugbe and other African scholars. Asian TWAIL scholars from India, though have produced interesting arguments revealing anti-colonial and tools of coloniality perspectives in the recent years, but the voices have yet not be noticed enough in comparison to the enormity of debates they have instilled. Their voices are scattered, unlike the collective voices from Africa.
In the academic imperial world, the rhetoric of universality of international law is exaggerated. The promise of international law for a just, fair, egalitarian international legal society is aspirational. Though raw data from the global South may be processed and concluded by the authors and publishers in the north, but academic spaces for global south thinkers are less and at times even hostile. Seminal scholarly debates by scholars from the global South published by local publishers, like those by Prof. R. P. Anand, appear to be lost. Though such works hold a strong semiotic potential of value, they are detached from the geographical North publishers. Decolonisation of intellectual space is an ignored concern. There have not been enough questions of the epistemic injustice it has created. The quest for universal academic accessibility is not even aspirational, but absent in the mainstream international legal scholarship.
This article has been authored by Ms. Swati Singh Parmar, Assistant Professor and Director, Centre for Studies in Legal Theory, Dharmashastra National Law University, Jabalpur, Madhya Pradesh. This blog is a part of RSRR’s Excerpts from Experts Blog Series, initiated to bring forth discussion by experts on contemporary legal issues.