by | 24 Jan 2023

I write this blog as a Global South student and practitioner of international law. My education in the subjects of Legal Methods and International Law began at an Indian law school, amidst an ocean of monotony. Understandably, neither subject stirred any enthusiasm. It was a credit to be attained, an irritation to be suffered, before moving on. While the quality of my engagement with international law subsequently improved, legal methodology or method remained a distant relative. It existed, but was seldom a source of joy.  

My tryst with legal methods nonetheless resumed once I commenced my doctoral studies last year at the University of Geneva. To borrow words from Koskenniemi, I was seeking a method that “would guarantee that the results of my work would enjoy scientific reliability or professional respectability.” However, in this misguided quest, I discovered something far more significant. While studying the intersection between investment treaties and the colonial encounter, I finally learnt – and unlearnt – what legal method truly meant. 

I had perceived legal method as an obtuse tool to oscillate between positivism and natural law, and other similar inquiries. I now realize that it is about neither. Rather, it is a vernacular to identify and articulate the histories and politics of peoples; to translate these experiences into legal theories and doctrines. It is ultimately a customizable lens to locate my experiences in scholarship, and my scholarship in my experiences.

Unsurprisingly, this unlearning, and my resultant reimagination of international law, was triggered as much by personal conversations as a review of literature. During one conversation, a friend from India casually remarked how any dialogue between Indian international law enthusiasts in Geneva eventually veered towards the challenges in renewing a Swiss residence permit, and how this impacts their search for affordable accommodation and meaningful employment. The observation was astute and hilarious. But once the laughter subsided, it was difficult to not see the parallels with the Third World Approaches to International Law (“TWAIL”) that I was independently studying. It reminded me, for instance, of Balakrishnan Rajagopal’s “attempt to show that the category ‘Third World’ has been constructed as the uncivilized, deviant ‘Other’” in the international community. I had always wondered about the contemporary relevance of this intangible criterion of ‘otherness.’ However, my friend’s observation, much like the segregated immigration counters at international airports, aptly exemplified what Rajagopal had sought to convey about the exclusionary nature of international law structures. And the method of TWAIL became the bridge between a casual lake-side conversation and defensible legal theory. 

Such epiphanies were frequent, and not confined to conversations within the Global South community. During a lunch with an international investment law practitioner from the Global North, the conversation predictably turned towards the jurisprudential inconsistency of the regime and related war-stories. My vested objective until then had been to momentarily distance myself from the academic realm through the distraction of practice. But it was at that juncture that my lunch-partner nonchalantly remarked how the rules and doctrines of international investment law were, at their core, “pure vibes.” I could not agree more. 

In one stroke, my objective was defeated. I was immediately reminded of the indeterminacy thesis advocated by Critical Legal Studies (CLS) and New Approaches to International Law (“NAIL”). In my left ear echoed Koskenniemi’s claim that “legitimizing or criticizing state behaviour is not a matter of applying formally neutral rules but depends on what one regards as politically right, or just.” And in my right, Joseph Singer whispered that if the goal of constraining government by previously knowable general rules seems impossible, “is the realm of judicial action, then, inevitably governed by whim and caprice?” In other words, “pure vibes?” 

I do not recall what was said at the table thereafter.  

*Harshad is an Indian lawyer; presently a Doctoral Candidate at the University of Geneva and a Consultant with the International Arbitration team at Mayer Brown Paris. All views expressed are personal. Email: harshad.pathak@mids.ch


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