Prabhakar Singh
BML Munjal University, Law, Faculty Member
- International law. oolong tea. rose. lotus.edit
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The volume brings together scholars from around the world with panache for re-reading international law. It deals with both theory of international law and issues of interpretation. It addresses themes such as the history of... more
The volume brings together scholars from around the world with panache for re-reading international law.
It deals with both theory of international law and issues of interpretation.
It addresses themes such as the history of international law, policy approach, customary law, human rights, international courts and tribunals, international bureaucracy, and investment law and constitutional approach to international law.
Editors and contributors come from common law and civil law backgrounds.
It deals with both theory of international law and issues of interpretation.
It addresses themes such as the history of international law, policy approach, customary law, human rights, international courts and tribunals, international bureaucracy, and investment law and constitutional approach to international law.
Editors and contributors come from common law and civil law backgrounds.
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Unilateral maps in international law oscillate between illegality and legal uncertainty. Powerful states use them as fig leaves to hide their imperial ambitions with.
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The dialectics between descriptions and solutions should now animate TWAIL scholarship. A crucial aspect of TWAIL is to debate racism in south-south relations and law. TWAIL also needs to ask if former victims, having secured sovereignty... more
The dialectics between descriptions and solutions should now animate TWAIL scholarship. A crucial aspect of TWAIL is to debate racism in south-south relations and law. TWAIL also needs to ask if former victims, having secured sovereignty during de-colonisation, are attempting to secure an empire.
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The end of 2020 marks India investing, between the Savarkar and the Jadhav cases, a century of faith in international law and international dispute resolution.
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Forbesganj linked Bihar with New York much like Amitav Ghosh’s magic realism connecting opium-growing Uttar Pradesh with Hong Kong in The Flood of Fire.
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The role of the roughly 600 Indian princely kingdoms in the transformation of the law of nations into international law during the 19th century is an overlooked episode of international legal history. The Indian princely states effected a... more
The role of the roughly 600 Indian princely kingdoms in the transformation of the law of nations into international law during the 19th century is an overlooked episode of international legal history. The Indian princely states effected a gradual end of the Mughal and the Maratha confederacies while appropriating international legal language. The Privy Council—before and after 1858—sanctified within com- mon law as the acts of state, both, the seizure of territories from Indian kings and the ossification of encumbrances attached to the annexed territories. After the Crown take- over of the East India Company in 1858, the British India Government carefully rebooted, even mimicked, the native polyandric relationship of the tribal chiefs, petty states and semi-sovereigns with the Mughal–Maratha complex using multi-normative legal texts. Put down in the British stationery as engagements, sunnuds and treaties, these colonial texts projected an imperially layered nature of the native sovereignty. I challenge the metropole’s claims of a one-way export to the colonies of the assumed normative surpluses. I argue that the periphery while responding to a ‘jurisdictional imperialism’ upended interational law’s civilisation-giving thesis by exporting law to the metropole.
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Descartes may not have wanted his world to learn from China and Iran.
But now is not the time to listen to him. In xenophobia and viral contamination, we have two, not one, curves to flatten.
But now is not the time to listen to him. In xenophobia and viral contamination, we have two, not one, curves to flatten.
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It is good to take stock from time to time and to see how things stand in jurisprudence. So, what is the relationship of doctrine and theory with jurisprudence? Is private law theory apolitical while public law contains politics for the... more
It is good to take stock from time to time and to see how things stand in jurisprudence. So, what is the relationship of doctrine and theory with jurisprudence? Is private law theory apolitical while public law contains politics for the very many constitutional ends in the Global South? In India, legal theorist Chhatrapati Singh very originally asked if legal systems and normative systems were the same? Chhatrapati’s enquiry was however a species of the classical approach to the law that promotes the law’s purity. On the contrary, the postcolonial approaches account for the historical life as well as the political proclivities of the law. The private law theory often seen as impersonal and non-imperial comes under scrutiny in the postcolonial approaches. Duncan Kennedy and Roberto Unger notably problematized contract theory, while Upendra Baxi argued for mass tort as public law—contract and tort are both private law—to offer, if you will, a jurisprudence of the South. A southern jurisprudence essentially rejects an impersonal reading of the private law.
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Territorially, Kashmir’s reorganisation isn’t unprecedented in post- colonies. Asian states need to, however, think people-centrically.
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Oppenheim’s International Law (1905) said Siam, although independent, was a “doubtful” case in so far as its sovereignty is concerned; it was not a “civilized” nation. What is “civilization” in international law? Many conflate the... more
Oppenheim’s International Law (1905) said Siam, although independent, was a “doubtful” case in so far as its sovereignty is concerned; it was not a “civilized” nation. What is “civilization” in international law? Many conflate the “racist” with the “legal” meaning of civilization just as many talk of colonialism and imperialism interchangeably. That is legally inaccurate.
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What methods, if at all, do Indian judges deploy in their law reading? In their abundant refer- ences to the term “jurisprudence”, the Indian judge gives neither precise meanings nor meth- ods to ascertaining what is jurisprudence; the... more
What methods, if at all, do Indian judges deploy in their law reading? In their abundant refer- ences to the term “jurisprudence”, the Indian judge gives neither precise meanings nor meth- ods to ascertaining what is jurisprudence; the judges declare when purposively breaking new grounds, or, the state constitutively roots for a strict, even a conservative, reading of its will and legislative intention. Judges while read penal and taxation statutes strictly, at the Indian Supreme Court the "ends of justice" clearly override, as it should, positivist interpretations. The legislature and the executive therefore tolerate the Supreme Court’s purposive reading down of the colonial statutes, just as, conversely, they reject the Court’s "reading down and reading wide" of politically sensitive public law statutes to defend their postcolonial intent. I aim to map the uncertain landscape of the Indian Supreme Court’s use of “jurisprudence” and jurisprudence’s relationship with statutory interpretation.
Research Interests: Jurisprudence, South Asian Studies, Natural Law, Phenomenology, Legal Theory, and 15 morePhilosophy Of Law, Structuralism/Post-Structuralism, Legal positivism, Indian Law, Constitutionalism, Theory of Law, Law of Contract, Common Law, Indian Constitutional Law, Statutory Interpretation, TWAIL - Third World Approaches to International Law, Indian Constitution, Theory of State and Law, Asian Legal Studies, and Social legal studies
For Thailand, “unequal treaties rest on a fundamental injustice and the international legal order cannot insist on their prolongation”.
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I argue that contextually reading two disputes involving Siam—Cheek v. Siam (1898) and the Temple of Preah Vihear (1962)—proves that both private law and public international law are structurally rigged against ex-semi-colonial nations.... more
I argue that contextually reading two disputes involving Siam—Cheek v. Siam (1898) and the Temple of Preah Vihear (1962)—proves that both private law and public international law are structurally rigged against ex-semi-colonial nations. Nineteenth-century Siam was a political ferment known variously as a semi-colonial, semi-peripheral, non-colonial, or uncolonized polity. Siam bargained under imperial shadows her political independence by the tactical grants of concession contracts, as well as by negotiating treaties with competing European powers. In the post-colonial Temple of Preah Vihear case, colonial sta-tionery—maps, photographs, and communiqués—as well as imperial customs offered evidentiary support to Cambodia, an ex-colonial state, against Thailand. In the early twentieth century, while authors picked Cheek v. Siam as a precedent for the law of international claims, textbooks offer the Temple of Preah Vihear case as a precedent on the form of treaties and estoppel. Conclusively, these two cases allow us to locate, if not exorcise, the ghosts of empires in Asian legal history, exposing, at the same time, Judge Koo's orientalization of customary international law.
Research Interests: History, Asian Studies, International Relations, Southeast Asian Studies, Contract Law, and 16 moreInternational Law, Colonialism, Cambodia, Public International Law, East Asian Studies, International Commercial Arbitration, Thailand, History of International Relations, History of International Law, International Court of Justice, Private law, Burma Studies, Southeast Asian history, International Investment Law, Myanmar, and TWAIL - Third World Approaches to International Law
"As compassion wanes, states rise, Buddha cries, as a nation dies"
Research Interests: Sociology, Political Sociology, International Relations, Southeast Asian Studies, International Law, and 10 moreHuman Rights, Refugee Studies, South Asian Studies, Poetics, Law and Literature, Forced Migration, Contemporary Poetry, Statelessness, Myanmar, and TWAIL - Third World Approaches to International Law
Research Interests: Comparative Law, Human Rights Law, International Law, Human Rights, Refugee Studies, and 10 morePostcolonial Studies, South Asian Studies, International Human Rights Law, South Asia, Postcolonial Theory, International Refugee Law, History of Human Rights, India, Indian Constitutional Law, and Indian Laws
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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... more
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.
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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... more
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.
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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... more
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.
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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... more
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.
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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... more
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.
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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... more
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.
What sutras do we extract from the three chapters on Britain in Martti Koskenniemi's To the Uttermost Parts of the Earth?
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"Sovereignty, Property and Empire" is everything that "Rage for Order" is not. The two books on the same issue – empire and international law – could not be more contrasting in approach and conclusions.
Research Interests: International Relations, Southeast Asian Studies, Feminist Theory, International Law, South Asian Studies, and 7 moreSouth Asian History, Public International Law, European and International Law, British Empire, History of International Law, Empire, and TWAIL - Third World Approaches to International Law
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The ‘directive principles of state policy’ under the Indian Constitution of 1950 and common law both sit at the core of India’s legal commitments to the international community. The Article 51 of the Indian Constitution contains... more
The ‘directive principles of state policy’ under the Indian Constitution of 1950 and common law both sit at the core of India’s legal commitments to the international community. The Article 51 of the Indian Constitution contains non-justiciable ‘principles’ and ‘state policy’ and not law that speak of India’s commitment to treaties, international law, and international arbitration. While ‘foreign relations’ is certainly within the executive’s competence, the Indian Supreme Court settles all ‘law’ in India. In this chapter I attempt to find an FRL, if any, by looking into the Indian Constitution’s reading by the Indian Supreme Court on two counts: (a) How the Court finds, as in Campbell McLachlan’s FRL, ‘jurisdiction and applicable law’ and (b) How in law nations interact with the rest of the world, or the interaction of nation and the citizens or aliens as well as with international regimes, the core of Curtis Bradley’s FRL.
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"The story of ‘the general principles of law recognised by civilised nations’ has so far generated more heat than light."
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Phillip C. Jessup’s Transnational Law challenges the state as the sole maker of international law. The doctrine of transnational law advocated the disrobing of new-found sovereignty acquired after decades of nationalist struggles in Asia... more
Phillip C. Jessup’s Transnational Law challenges the state as the sole maker of international law. The doctrine of transnational law advocated the disrobing of new-found sovereignty acquired after decades of nationalist struggles in Asia and then in Africa. American corporate lawyers curried favour from the transnational law doctrine to expand their practice in international commercial arbitration. Next, in disputes arising from the expropriations by new states of property acquired from concession contracts investors found transnational law profitable. Effectively, Transnational Law, restoring a colonial status quo through its doctrine, facilitated the post-war internationalization of contracts to develop the law of economic protection of aliens. The transnational law doctrine wantonly focused far too much on “contracts” forgetting conveniently the concessional nature and history of the “concession contracts”. The doctrine of transnational law grew from McNair-Lauterpacht School of thought that “exploited ungrudgingly and to the full” the “rules” of “private law for the purpose of the development of international law”. The Suez crisis was the first instance of the application of the transnational law doctrine.
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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... more
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.
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Decolonisation as Epistemology in postconflict Himalayan states DR. BOJAN GAVRILOVIC Civil Society Organizations as a driving force promoting Justice for Atrocity Crimes in Iraq HARUN ISERIC Battling hatred in post-conflict society via... more
Decolonisation as Epistemology in postconflict Himalayan states DR. BOJAN GAVRILOVIC Civil Society Organizations as a driving force promoting Justice for Atrocity Crimes in Iraq HARUN ISERIC Battling hatred in post-conflict society via law: the case of Bosnia and Herzegovina 15:10-16:10 PROF. DR. BÜLENT EVRE A Multiplicity of Perspectives on Ethnic Conflicts TRANSITIONAL JUSTICE IN LATIN AMERICA PROF. DR. BARBARA PINCOWSKA CARDOSO CAMPOS Transitional justice in transition? Economic, social, cultural and environmental rights in the foreground. ASST. PROF. DR. AYDIN ATILGAN De-facto Statehood as a Response to Post-Conflict Situations 16:20-17:20 ASST. PROF. DR. MUSTAFA ERÇAKICA The Protection of Human Rights in Post Conflict Periods: An Evaluation Regarding the Roles of United Nations and European Union TRANSITIONAL JUSTICE IN LATIN AMERICA DR. CARINA CALABRIA Truth commissions and economic, social, cultural and environmental rights in the foreground PROF. DR. RUMANA ISLAM Securing Gender Justice in Post-Conflict Society: Application of Laws and Relevant Challenges 17:20-18:00 BREAK BREAK 17:30 KEYNOTE LECTURE PROF. DR. BOAVENTURA DE SOUSA SANTOS 18:00-19:00 ASST. PROF. DR. LEJLA BALIC Electoral system and political parties in consociational democracies-case study Bosnia and Herzegovina
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Why study the history of law or legal history? Why study the history of the various Asian states? Although most of Asia was the colony of the British, the French, the Portuguese and the Dutch, states like China, Nepal, and Thailand... more
Why study the history of law or legal history? Why study the history of the various Asian states? Although most of Asia was the colony of the British, the French, the Portuguese and the Dutch, states like China, Nepal, and Thailand remained semi-colonial. Asian colonialism was,as such, an uneven process. This also explains why is India a common law (British colonialism) state while all semi-colonial states such as Nepal, Thailand and China are civil law (they choose their law reforms and went for civil law)? Should different colonial and semi-colonial histories give different present and future to these States? What role has semi-colonialism played in the universalization of international law in Asia? What makes colonial (India) and semi-colonial (Nepal & China) disagree on territory and boundaries? Can legal history answer this?
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A focus on the omnipresence of the law of nations over the quest for international law’s universalization has the potential to return Himalayan nations their histories robbed by international law.