Rethinking International Law
A painting of an old English courtroom.
Conceptualising International Law
The conception of law that we know today is deeply problematic. Law is western or even western European, in nature, texture as well as composition. Law as we see it and know it has roots in the Roman Empire and to us, the inheritors of the British Empire, the conception of European law in the common law system has had a deep impact on how we conceive of our society and as probably our place in the world.
The Indian state as we know it to today as distinct from the Indian nation is decidedly a gift of European ideas. The framework of our laws is European, so is our justice delivery system. Our conception of who the state is, again as distinct from the idea of who we are as a people, are also a left over of the British Raj, the British Empire based in the Indian subcontinent, so are our international relations, and, most importantly the conception of the position of where we see ourselves in the world.
It is in the above context that I intend to write this article. The article is not the last word on the subject nor does it intend to be, nor can it conceptualise itself to be, since the subject is so vast and possibly yet so untouched. The article intends to start a debate. A debate broadly centred around who we are, and what is our position in the world, and therefore what are the conceptions of law that should govern us in relation to our neighbouring countries. In other words, we know, what Indian International Law looks like, but do we know what Indic conceptions relationships and governance enveloping the wider world would appear as.
The models in the world
When the world looks at International law, it decidedly and pointedly positions itself around Europe and before that on the Roman Empire which preceded it. It speaks about conceptions of law, which have and originate from that background. It originates in the way that the Romans viewed the world , as to the civilised world governed by ‘Jus Civilis’, the code and the law which governed the relationship between Roman citizens and Roman institutions posited against the law of ‘Jus Gentium’, that is the law which governed the relation between Roman Empire and other nations and nationals. The undercurrents of international law, as anyone would tell you, still looks at the world that way. One law for citizens and a categorised and differentiated law for the rest of the world. Our public international law and our private international law still functions on those lines.
That being said, the other important question is: Is that the only way of looking at law of societies and nations. A simple, primary answer is, No. There have been numerous times , when universal states have arisen like that of the Roman Empire and to an extent the British Empire (and I hold the latter to have had a more direct impact on international law, than the former), each state has looked at international relationships and states differently.
To take an example , the Ottoman state , which was the Asian successor to the Roman Empire , the Ottoman Caliph still referred to himself as the Kaiser-I-Rum ( Caesar of Rome) , borrowed the way the Romans looked at the world but brought it under an Islamic umbrella or a faith based canopy. In other words it changed the conception of citizens who were governed by the law of the land which they belonged, in the present case Rome , or Jus Civilis to the Islamic Ummah , or a community of Muslims, people of a similar faith . For the rest of the conquered areas or nations under its control, it conceived of the ‘millat’ system, that is basically it recognised the independent nature of groups of people and the legal system which governed them. Some would say that the Ottoman system has its roots in the latter part of the Roman Empire itself when Rome stopped becoming a civil state and with the adoption of Christianity and became a confessional state. Much of Islamic international law originates obviously from this conception of law of the Ottoman empire, which historically has had a huge impact on Islamic conceptions of governance.
For the purposes of discussion, it is important to note that there have been huge attempts specially through the 1990s and 2000s to make out as if there is a Universal Islamic alternative to Universal International law. However, as history and present-day politics shows, the same was a chimera, which never existed. Islamic international law took the shape of the societies and conceptions in which it operated. However, there are two broad conceptions which will be apparent. One being Ottoman as discussed earlier, and the other for the want of a better description a conception of a state deeply influenced by Persian conceptions of the world.
The Persians, from the time of Sassanids explicitly recognised three categories of people, the citizens of Iran, the subjects of the Empire and foreigners, with foreigners having the least amount of rights. In fact, the Sassanian state was based on a tributary model and the laws which governed the relationship between the insiders of the Persian state and that of the outsiders, were very clear that the outsiders were inferior. The state itself was absolutely confessional, deeply Zoroastrian, and Zoroastrianism was the religion of the chosen and therefore deeply influenced the policy of the state, including its relationship with other states and countries. The fact of the land of the ingroup or the land of peace and the lands inimical to the land of peace and continuously threatening it , that is lands which are not governed in terms of true religious law , seemingly is echoed subsequently in Islamic international law .
The third, Islamic variant I like to always put forth, is the Indic variant, which believed in a layered cake way of governance , which while recognising the idea of the Islamic nature of the state , also recognised that there had to be a space for others of different groups who were not a part of the Islamic confessional group. In many ways a unique Indic way of an acknowledged Chakravarthy model, where the law was based on acknowledgment of hierarchy of kings, rather than submission to an idea of faith or even of civilisation. The Indic model was practised in parts in the Indian subcontinent and in southeast Asia. Anyone looking at the present federation of Indonesia and how it deals with various identities and peoples, would be able to gather what is being indicated.
The Chinese with their middle kingdom universal model based on hierarchy and the acknowledgement of the predominance of China is another model of international law. It is rigid and based on dominance and predicated on material benefits being acknowledgment of suzerainty and power. Before the present times , anyone who was part of the Asian Values debate in the 1980s and 1990s would realise that there were eery reflections of the model , even at those early times , when the position of China was much less assured.
How do we look at ourselves?
The most important thing is how do we look at ourselves. It is apparent that we have not made an effort to formulate a conception of law of nations and peoples. In many ways because of the colonial inheritance possibly, we have studiously refused to formulate our own ways and conceptions of international relationships. We as parts of the Indian state and the Indian academia which has grown up centred around that state, have tried to largely behave as the good colonised. A state wedded to western conceptions of the world, economically, politically and in its dealings with the world. A true successor state to the British Raj. This has hampered our outreach to the world as well to those who would have natural affinity to us, being predicated on conceptions of governance and law, therefore very similar to us.
However increasingly as we approach 100 years from the day we became an independent country and the ideas of us as a country which were planted by the British recede into the background, we face the real challenge of facing up to our neighbourhood in terms of who we are . We must dig deeper into our culture and background to rediscover our own conceptions of international law along with rethinking our international relation doctrines. It is time that we look at ourselves anew.
Indic conceptions of international law
A new look at international law from the Indic point of view must therefore rely on our cultural and civilisational conceptions of governance and relationship between peoples. This would need to go beyond the standard state-based models of relationships and thinking which we corelate some of our texts like the Arthashastra. The Arthashastra is by no means a dictionary on Indic international law; it is a textbook on how to carry on international relations based on the values of Artha. It is materialist because that is the basis of Artha. It has a peculiar similarity to European conceptions of law and therefore is a favourite of Indian scholars who look at Indian law through western eyes, precisely because it is materialist in nature. However, as we all know the conceptions of Indic governance models are incidentally based on Artha but are primarily based on Dharma.
I would suggest that the new international conceptions of governance and relationship should have as its basis the Indic conception of Dharma. The ideas which would encapsulate the conceptions of what means to be an ideal human and an ideal ruler as well as an ideal and righteous state. If we look at the rest of the world , the greatest export which we have disseminated all over the world across continents and countries from South East Asia, to Japan, China to Central Asia has been this conception of Dharma , or being able and ready to do justice for all . The objective of the state and a player in international law is to ensure that justice is done to the smallest person. This is the shorthand of what the Lord Buddha spoke about, this is also the shorthand for what Shri Rama spoke about, the two greatest exports of conceptions of governance from this country to the rest of the world. We also need to promote the conceptions of collective decision making amongst different actors who play within the state and across states. We further need to promote an order which will accept that diversity in international governance is part of the very conception of an international order. In other words, it is important to Dharmicise (if I can use the word) international relations and relations between peoples, in a way which permeates both public and private international law.
Where do we go now?
The old order is ending. In many ways, globalisation as a by-product of the old European order seems to be on its last legs. There are increasingly contenders starting from China to Russia to Turkey which want to be the inheritors of this world. All of them look back nostalgically on their own Universal states and hope to replicate it through the world and therefore replace the West. The problem is that it is not possible to ‘go back home’ however much they may want to. It is important for us as people of the world and increasingly as global neighbours to evolve and push forward and conceptualise international relationships of governance which will go beyond mere conceptions of international law which are self- limiting to hopefully increasingly to a network of customs and duties ( or Dharma) which would tie us all in an ever changing and evolving network predicated on justice and commitment to the weakest.
(Vikramjit Banerjee is a senior advocate practicing at the Supreme Court of India.)