Law

Abstract: The JGLR aspires to serve as a significant platform “for developing an alternative vision” on the discourse “of” and “about” law in the Global South. Even the process of publication underlines this global approach. With articles written in Argentina, South Africa, India, and Nigeria, as well as France, England, and the United States–and edited in China, Thailand, and Australia, among other sites–the JGLR tilts the debate on globalization towards its reality as a robust process that is multidirectional, reciprocal, and recursive.

Arguably, sovereignty, as understood in the Lotus Case, does not foreclose the possibility of international trade law’s renovation through a constitutional interpretation. The article identifies this possibility through the epithet of ‘mercantile metaconstitutionalism’. A constitutional reading of the trade treaty is a teleological aspiration in contravention to the World Trade Organization Agreement and its covered agreements. Furthermore, this constitutional reading is outside the 1969 Vienna Convention on the Law of Treaties (VCLT) as well. Moreover, Article 17.6 (ii) of the Anti-Dumping Agreement provides that the WTO Panels and the WTO Appellate Body “shall” interpret the provision of this Agreement “in accordance with customary rules of interpretation” echoed also in Article 3 (2) of the Dispute Settlement Understanding. Though the role of the VCLT in treaty interpretation is well settled in the jurisprudence of WTO law, a call for a constitutional method of treaty interpretation has also arisen.

As the colloquial name for cut flowers as "blood flowers" implies, the outsourced production of "blood flowers" is plagued by negative externalities, including child labor, health risks, soil and water pollution, sexual exploitation of women, and unfair distribution of water resources that shortchanges the tribal populations in Asian, African, and Latin American countries. Today consumers in developed countries increasingly view consumer choice as expressing their values and identities. Moreover, trade scholars believe trade restrictions could efficiently protect public morals, intellectual property, animal, human, and plant life, and ensure the proper sanitary and phytosanitary measures. A ban on cut flowers, a measure mandated by the GATT 1994 Article XX General Exceptions, will counteract some of the negative externalities of the cut flower trade. However, this article however argues that, within the context of a free market, it is the informed and compassionate consumers' choice as political actors, and not the prohibitive provisions within trade law, that can most effectively eliminate the negative externalities of the cut flower trade. Besides, the cut flower trade yields positive externalities by providing jobs to men and women in Asia, Africa, and several Latin American countries. And, although a purely process-focused distinction may support a ban on the "blood flowers", such a ban would result in job loss, subsequent destitution, starvation, and civilian deaths in developing countries, doing more harm than good.

The Right of Passage case flagged off India's adversarial tryst with international law, in which Portugal had argued for the validity of a 1779 treaty signed with the Marathas. India had denied its existence and interpretation. Within the UN Charter, India's subsequent assimilation of Goa constituted illegal invasion, with which the Indian Supreme Court disagreed. Subsequently, Britain deployed its colonial de jure distinction by refusing to recognize India's control of Goa. However, for Nehru, Goa was “a symbol of decadent colonialism trying to hold on”. The Right of Passage case profoundly shaped India's post-colonial foreign policy by coupling India's body politic with its judiciary. Since then, the Lotus case continues to enamour the Indian government. This paper considers the views of the Indian government, judiciary, and publicists to examine whether India has been able to advance a specific approach to international law.

Behind the different attitudes to international law of China and India lie China’s semi-colonial and India’s colonial past. Indeed, Asia’s colonial past is central to the many cartographic hangovers between China and India and China and her neighbours in the South China Sea. While India since 1947 has adhered to the British colonial position, China has since 1920 denounced colonial treaties. But China’s and that of her publicists’ acceptance of even postcolonial treaties, such as the VCLT and the UNCLOS, is selective and political. Such an attitude in effect strategically suspends international law’s primary sources. Contrarily, not just the colonial treaties, India and her courts have even upheld customary laws as common law. The 1954 Panchsheel treaty for trade and intercourse in China’s Tibet region is often said to embody the Sino-Indian postcolonial engagement. The functional role of the 1954 Sino-Indian treaty however remains overstated although, recently, a Sino-Indian joint statement acknowledged the positive role of bilateral agreements since 1954. This article compares the attitudes to international law of China and India based on (1) their construction of sovereignty since 1947-49 (2) their mutual engagement via 1954 Panchsheel bilateralism and the politics of colonial maps and (3) Sino-Indian approaches the sources of international law.

The PCA, a college of arbitrators, originated as an alternative to wars and arms race in Europe at the high noon of colonialism. Subsequently, in 1922, the PCIJ was established to address the ad hoc-ism of pre-World War I hybrid tribunals. Both permanent courts and ad hoc tribunals however failed to acknowledge colonialism as international law's Achilles heel. The interwar bourgeoisie funded the ghostwriting of apathetic legal methods and capitalist norms in transnational tongues for the protection of alien investors. Post-1945, the continuity of the structure of colonial legal arguments stood in the way of interrogating its essentialist ontology and capitalist teleology. As such, initially, the ICJ stood indifferent to the colonial question. During the ensuing Cold War, the erstwhile colonial powers refused to accept the ICJ's jurisdiction with the United States doubting the integrity of individual judges. In disputes arising due to the breach of colonial concession contracts, investor-state tribunals billed the costs of producing legal norms to the new sovereigns. Prescriptive writings in favour of judicial lawmaking and the proposed interweaving of investor protection with human rights continue to nourish international law's Eurocentrism. A hyper-normative theory of lawmaking by international courts and tribunals remains decidedly indifferent to both rational choice approach and third world scholarship. This paper puts ontology and teleology of international judicial law-making to test.

Postcolonial Asia offers at least seven types of states and nations. In their somewhat uncritical pursuit of total nationalism, territorial Asian states compete with their archipelagic cousins. The sea gypsy nations—spread across the South China Sea and other East Asian states—reject the monopoly of land as the only inhabitable space, discounting territory as an essential constituent of a nation. Ironically, while history kept them outside the fold of the territorial states, the present attempts to co-opt them. Only by challenging, as the Asian sea gypsies do, land’s claim to being the sole inhabitable territory within law, and rethinking the sea as a place of danger can we truly vernacularise our statist imaginations.

Abstract: Professor RP Anand analysed the birth of new states and their theoretical and functional inclusion in the post-UN world. The 1947 Indian independence afforded Indian lawyers a choice between Nehruvian internationalism and Judge Pal’s Tokyo dissent. Essentially, Anand preferred state interest over cultural differences as the currency of international law while celebrating the UN Charter, the International Court of Justice, and the UN Convention of the Law of Sea as the achievements of the mankind. Anand saw the rejection of international law as synonymous with power politics. While optimistic, his universalism engendered a Western anti-thesis that an Asian approach to international law, if any, was otiose. Subsequently, post-colonial scholars responded with a synthesis that brought colonialism from periphery to the centre of international legal theory.