Swati Singh Parmar
Teaching Public International Law (IL) in a law degree course can be as exasperating as liberating it is. I say this because of the immense adoration and awe that I find while reading IL texts and the frustration that simmers beneath my failures to wheedle my students for IL, let alone reproduce the same adoration amongst them. When I was (I still am) a student of law, I firmly believed that to learn law one must unlearn her caste, gender, religion, region and class. [My belief was only strengthened more when I saw superficial (non) claims against reservations (affirmative action under the Indian Constitutions for the Scheduled Castes and Scheduled Tribes); poor on pavements as ‘illegal encroachments’, refugees as ‘illegal’, and alike contempt emanating from the circles of privileged castes, class, religion and their intersections.] When I met my husband, he told me that to learn ‘international’ law is an even higher aspiration, that requires, besides unlearning other otherings, the unlearning of one’s nationality—and I could not agree with this more. To bring Kashmir, Bangladeshi refugees, Rohingya refugees, or the Gaza conflict debates in the Indian University spaces—for a classroom or a conference, is a call that most of us would not make (unless the theoretical context of these among the students, their receptibility, support from the administration, and others).
The Thin Ice
I had witnessed students’ politico-cultural, geographical, and historical dissociations from IL translate into dejection for IL. Some of these dejections came from blaming IL for the issues born out of International Politics and diplomacy, while others were rooted in the oversimplification and lack of subjectivity in complex IL matters. My paper An Anticolonial dream against the disaffection and dissonance: Teaching the (Other) International Law in India was born out of a set of such frustrations and liberations that I encountered while teaching IL in graduate and postgraduate law degree courses for the last eight years in two Universities in Central India. The issues that concerned my IL teaching seemed either generic to all law subjects—inherent in the state of Indian legal education (for instance, generic issues may include the teaching standards, low prioritization reading and legal research among teachers and therefore among students, lack of library resources and online databases) and its colonial moorings—or specific to IL (for instance, unfair comparisons with ‘career lucrative’ traditional and non-traditional subjects; not real subject treatment; the Austinian handicap; and others).
When I reductively simplified these difficulties in teaching IL, I found two ramifications of the generic and specific issues: lack of context-setting for the students and the Austinian handicap.
i. Context-setting
The Indian studentship is exposed to disproportionately higher domestic laws than international law. A five-year B.A.LL.B. degree program has on average 54 taught law courses, out of which around 48 to 50 courses pertain to domestic laws. The universities and colleges that offer this degree program in general honours, i.e., in general laws, the IL course appears in their curricula in one semester, while those that offer the degree program with law-specific specialisations, the most widely offered specialisations are constitutional law, criminal laws, and business laws. There is rarely any university or college that offers a B.A.LL.B. degree program with IL specialisation, that could offer 5 to 8 IL specialised courses. A similar situation exists in a three-year LL.B. degree program. In the postgraduate LL.M. degree program, rarely a university or college offers a specialisation in IL. These instances are testaments of not only the lack of IL teachers but also the lack of students’ interest in opting for IL courses.
Where the domestic laws taught are overwhelmingly higher when a new course of IL–drastically different in nature and character–is introduced, it is not introduced with the corresponding context-setting that is required. Since most of the students’ exposure–through their formal teachings, formal internships (which are mandatory in most institutions) and informal encounters with the law in their family, media, cinema, etc.–is confined to domestic laws, domestic law teaching may not require a context-setting before the formula introduction of the law in a classroom than IL teaching. Contextual exposure to a student to teach IL is crucial in building their readiness, receptibility and acceptance of the ‘alien’ IL.
ii. Austinian Handicap
As most of the domestic laws taught espouse a positivist fabric, the Austinian handicap is glaring. Combined with the issues of lack of context setting, scarcity of IL teachers, and others, the Austinian handicapped studentship expels the non-positivist moral robe of IL. Interestingly, in many cases, due to a lack of IL teachers, a domestic law teacher is assigned to teach IL, who is either unaware of the handicap, or non-trained to address the handicap. Due to the time-stressed semester and trimester system in a graduate degree program, even IL teachers find it difficult to place ‘contextual background’, ‘Analytical positivist-naturalist debate in IL’ or other such parts to address or even acknowledge the handicap in their teaching curriculum.
A shot in the dark
I attempted to respond to these concerns with the three most basic solutions I could think of (I experimented with my teaching by including these solutions and personally found some changes in students’ reception and approach to the subject. Whether these can be replicated or not by others or in other jurisdictions, remains an empirical enquiry)- introducing a brief but fair account of the history of IL, different approaches to IL and the philosophy of IL in my teachings.
i. History of International Law
To me, the history of any field of study is an appetizer that stimulates the appetite- a curiosity to read and understand- for the reader. For IL–which the Indian student sees as distant or irrelevant to the Asian, national or local realities–introducing the historical evolutions of IL in the form of marriage treaties, diplomatic treaties, trade treaties, or peace treaties in ancient Civilizations of China, Japan, India, Mesopotamia, Assyria and others, could address the dissociation and unwillingness towards the IL.
Unfortunately, the already shrunken space for history (even for the European history of IL, popularised as IL history) of IL had growingly been regarded as ‘unnecessary’ and ‘redundant’ by the authors (for instance, deletion of the chapter on History of IL in the ninth edition of Oppenheim’s International Law Volume I- Peace for accommodating more space to matters with “contemporary relevance”) and teachers. Despite the turn to history that was witnessed inside and outside the international legal academia, the interest in the history of IL has not permeated Indian classrooms. Out of all the IL course curricula from the Indian law Universities and colleges, I could access, none of them offered any space for the history of IL. I attempted to find IL norms in the crevices of treaties relating to agriculture, trade and commerce, and diplomacy, of ancient India and share these examples as much as we relied on early European pacts and places as IL sites. This could, in part, calm my anxiety regarding the unwillingness among students to read IL (that stems from a relegated IL history exposure) that even leads to an incapacity to read IL.
ii. Approaches to International Law
Most Indian classrooms narrate the IL course with a single approach, which usually is a positivist, European perspective on IL–a problem highlighted in the TRILA Project Report 2020 too. Non-European perspectives, let alone the Asian perspective, remain limited to a few academic writings. The Mainstream International Law Scholarship (MILS) presupposes a global north standard classroom (in terms of equipments, language, pedagogy and students) present in remote villages, and tribal areas, beyond mainstream lands. MILS, by overlooking the social, economic, cultural, caste, gender, and class realities of the non-European world, furthers the empty promise of IL view for the students, while the alternative IL scholarships are neglected both by teachers and students. The Critical approaches to IL- feminist, queer, Marxist, Critical race, TWAIL (Third World Approaches to IL), FWAIL (Fourth World Approaches to IL)- potent of explaining and undoing the IL excesses and injustice, remain largely unread by Indian studentship. A tribal student not trained in the English language may see IL as an unrealistic and distant law irrelevant to her socio-legal realities, but a slight introduction to FWAIL may invoke answers and their questions in her and thereby invoke belongingness to the IL discourse domain. I was fortunate to experience exposing tribal students of my classroom to FWAIL which also sparked their outside-classroom research activities on tribal folklore on international environment law. But with the constrained number of lectures in a tight-packed semester system and an obsession (usually of parents of the law students) for the judiciary as a career, digressing from a standard competitive examination tick-marked course curriculum is a task.
iii. Philosophy of International Law
Indian classrooms stay unaware of the philosophical strength of IL. Philosophy can evolve the students into better thinkers, and aid in unlearning avoiding the fixation of concepts. Philosophy of IL can expose the undesirability of unfair comparison between dometic law and IL and of equating effectiveness, compliance and sanction in IL to those of domestic law by the standards set by domestic law.
Jurisprudence, as the philosophy of law, is taught in a seclusionary manner as a separate course. It also is perforated with domestic law examples and is taught without acknowledging the existence of the jurisprudence of IL. Other law courses do not rely on their philosophical foundations in their pedagogy. Philosophy of criminal law, constitutional law, corporate law, tax law, and family law are phrases unheard of by their respective teachers and therefore, by the students. For a course on IL, unlike the domestic law courses, the significance of the philosophy of IL and its concepts is pivotal in shaping students’ acceptability, readability and association with IL.
Conclusion
These problems and solutions, though specific to India, are limited– first by my lived experiences in teaching IL in Central India, second by my language training and last by my institutional exposures. These can, therefore, not be generalised for a standard Indian classroom. Indian classrooms, diverse in their structure, situation, and demography, are differently positioned to discuss IL. History, approaches and philosophy of IL could offer significant markers and reference points for any local students.
(This piece is based on Swati S. Parmar, “An Anticolonial Dream against the Disaffection and Dissonance: Teaching the (Other) International Law in India,” Indonesian Journal of International Law: Vol. 20: No. 2, Article 4, 2023.)
