LAW AND JUSTICE IN A GLOBALIZING WORLD

Instructions
 Answer only the question meant for your section. If you respond to a
question not meant for your section, the paper will not be evaluated.
 Maximum length of responses: 3000 words in total.
 Total Marks: 30
For Section A Only
A pestilence has wiped out the entire population of the earth, leaving only 5 people
on the planet—each one of them stranded in their respective countries. They are: Mr.
Peter Goldman in Los Angeles in the United States, Ms. Iva Tereshkova in St.
Petersburg in Russia, Mr. Xi Liu in Shanghai in China, Ms. Adaego Marizu in Lagos
in Nigeria, and Mr. Gabriel Carlos in São Paulo in Brazil. Each one has the realization
that they have been left alone in the world, but for a few others in other parts of the
world. Since they have been left behind with all the technological aids, the five of
them have been able to get connected. During their tele-conferencing, they realized
that the world remains as it was before, but for the absence of the rest of the
population of the earth. All human artifact remains—vehicles, oil reserves and
storages, food supplies, technology, factories and raw materials, and all knowledge
reserves and databases.
All five of them soon realized that the world is placed before them to be re-built. But
in order to spread out life again in this humanless landscape, they realized, they need
to put systems in place, and to begin with they need a system of governance. As they
deliberated, they understood that the devastation of the pestilence has not wiped out
anything from their memories—rather memories have a frightening clarity—and that
their faith in their respective systems of national governance, loyalties to their
ideologies, and allegiances to their politics remain unwavering and resolute.
Hence they decided to debate on possibilities and to eliminate irrelevancies. If not for
any one known-system to prevail over the others, at least there can be an
amalgamation of otherwise rival considerations.
Mr. Goldman, introducing the theme of their conversation, spoke thus:
“Ladies and gentlemen! An abject condition has befallen us, which seems paralyzing
and having left us with no meaning to continue on the planet. Then again, we have
been left in charge of the planet—an opportunity which no living being on earth, let
alone the protagonists of history, might have got. This is a carpe diem moment! Why
should we not seize it and make it memorable, to be read and cherished by those who
will come to inhabit the earth after us. But we have also a world which lies fallen
before us. Histories, which will be written on us and will be written hithertofore,
should not blame us for severing the memories of a world which has met with a tragic
end. Hence, ladies and gentlemen, I suggest that we continue the legacy of our
forefathers, by setting means and mechanisms to re-start the system of governance
which existed until yesterday”
Mr. Goldman continued to wax eloquent and vehement,
“We were the proud participants of an efficient system, which maximized human
wellbeing and which made the world as glorious as it has been until yesterday. We
were competitively efficient, we were democratically open to all types of capabilities,
we were socially responsible, above all we were reasonable towards human
subjectivities. We used technology for human excellence, we brought riches and
affluence to every part of the world, leaving no part insignificant. People all over,
from big cities to remote hamlets, maximized their human potential. Of what we
have achieved in the last 8000 years of human existence in thought and action, a
lion’s share of that was achieved in the last 30 years”.
After a brief pause, as if meant to take a sigh of pride, Mr. Goldman continued,
“We have achieved all this through some fantastic imaginations and being attentive
to the dynamics of the material and spiritual forces of the earth—mobility, capability,
sustainability, development, governance, laissez faire, regimes, institutions,
liberalism, individualism, reason, fairness, and social responsibility. If not for this
exceptional imagination, society would have rotten in its pre-global atavism”.
With a pathos in his peroration, uncharacteristic to his otherwise assertive speech,
Mr. Goldman concluded thus: “If not for the continuance of that glorious tradition,
what is it that fate has for us as the leftovers of human civilization in the world”?
Then came the turn of Ms. Tereshkova, a former member of the Russian Federal
Assembly.
“Dear Comrades! History has always been cruel to humanity. Earlier we were
oppressed by those in possession of the riches, the masters of which they became by
sheer historical advantages and distortions. Now we have been oppressed by the
callous spread of a pestilence, which has deprived us of fellow human presence,
foiling the camaraderie which had the world advancing towards the revolution of
excellence. But as we have resisted all totalitarian assaults in the past and all efforts
to subordinate the working class through our collective spirit, we should continue to
resist further formation of evils. The pestilence struck at a time when we were on the
path towards a transition towards socialism”.
Recounting her position and the historical state of affairs succinctly, Ms. Tereshkova
changed the tenor of her speech from being poised to somewhat vigorous.
“Shifting the patterns of oppression is not re-imagination, and thoughts and acts in
such a vein is preposterous to the core. Saying that it is the demand of the time, is
misappropriating contexts. After all, when in history was time favourable for human
desires and ambitions? Time and history have always been tamed by the collective
willing and acting of classes. Inexorability of time is a smokescreen created to deploy
new plots of oppression”.
Having said thus, her countenance displayed an elegant serenity, which had her voice
assuming an extraordinary neutrality, or was it a conciliatory gesture?
“While I do not deny that there are possibilities all around and that the world until
yesterday was exploring such possibilities, it is not, as Mr. Goldman articulated, a
world which has discovered its ways; rather it was an “experimental world” of
pluralism whereby many considerations interplayed in a complex political space. We
should continue to explore that possibility in “peaceful co-existence” through
dialectic means. I am sure that laws in the providence of poetic justice will help the
truth come out of untruth”.
Ms. Tereshkova concluded,
“Hence, let’s not deny the fact of time, but not yield to its forces. Let’s also not pass
judgements on the appropriateness of ideas and schemes, let the best emerge
through an interplay, no matter how timeless it becomes. Whatsoever, history will
end through a revolution at some point in time”.
Then came the turn of Mr. Liu, a former politburo member of the Chinese
Communist Party.
“Ladies and gentlemen! We may agree or not agree on an idea—a universal—to re-
build the world. But I believe that every universal idea is abstract—they become
concrete only when applied in local conditions. Such local application may not alter
the abstractedness of the idea, but might produce a ‘version’ or a ‘type’ of the idea.
This has been the case with all ideas, be that capitalism or socialism. Hence the
Peoples Republic of China (PRC), although never defied universalism, of whatsoever
type, believed in versions and types which have incorporated the unique
characteristics of the sphere of application. I am of the conviction that a state cannot
espouse an idea which has no room for honourably situating the memories and
remnants of civilizations, lived experience of its people, their sacrifices, and their
nation-building. Hence a universalist idea disconnected from the historical and
social realities of the peoples will be counter-productive to the recovery we are
planning”.
Mr. Liu reminded that the PRC, while being a socialist state has, always pursued
socialism with Chinese characteristics. However, he clarified his idea with a caveat.
“The preservation of local characteristics is not meant to foil the scope of universalist
ideas, nor it is thinking parochially. The state shall always think in terms of the
particular and the general. However, the state is committed to provide the best living
conditions to its people—its particular—which the constitutions have mandated them
to do. Hence the primary focus of the state shall be on its people—all developmental
ambitions of the state shall be for the people and limited to its territories. But the
love for humanity shall be in the minds of the people and states shall work hand in
hand for the collective welfare of all states and societies”.
“Therefore, I am not of the opinion that we should build the new world on a
forgetfulness of the old world, as there are essential historical values and memories
of experiences of people which we should preserve. We must not also forget that in
all these lie our own identity. Hence, let’s make plans to resume the world which has
been put on hold by the pestilence”.
Ms. Marizu, who was a young aspirant of Nigerian Civil Service, stood up to speak
when her turn came.
“Ladies and gentlemen! I am so inundated by the many proposals and the associated
information shared by the learned speakers who spoke before me. Being a student,
unlike my fellow speakers, I do not have a scheme or vision. But permit me please to
submit a few questions for your consideration”.
Thus introducing herself in all modesty, Ms. Marizu, continued eloquently.
“Being from Africa, I have been brought up in the midst of nature’s abundance. We
knew that Africa is also rich in natural resources. But we never had a sense of
possession of these riches until the notions of property and possession were
introduced by foreign invaders to us in a way way different than how we understood
it. Time has witnessed how claims were laid on us and on our property, including on
our freedom and dignity. Then came a new era, the era of competition and
development, when Africa found itself as having a comparative advantage—a
resource richness—although we were looted badly by the colonizers in the past. A
new confidence began to rise in Africa, eclipsing all colonial hangovers. The new
spirit of Africa turned the Continent into an important space in the global, purging
any remnants of even absentee colonialism of foreign culture”.
“Although Africa too struggled as many other regions in the world to retain local
identities as a global culture began to spread, the Region was not free of
development. Africa gained a participative right in many global processes, became
part of many global alliances, and started to move towards claiming a fair share in
the global GDP”.
Thus presented the advance of Africa in global conditions, Ms. Marizu assured that
even in the new order which would now emerge, Africa will continue to play its
developmental role. However, Ms. Marizu posed a few questions.
“I am in no disagreement to any of the models presented by the earlier speakers, as I
see them as tested and being-tested models. However, all the models are based on
communities or classes or people’s groups like states. While I do not refute the inner
strength of these models, I am sceptical about their relevance when these models are
applied to sole individuals which unfortunately we have become. In another word,
‘capitalism’ or ‘communism’ or ‘socialism with unique characteristics’ are
imaginations based on notions of ‘collectives’. When the collective is broken down to
‘individual’ these ideas do not sustain. Does that mean that people’s existence in
society as individuals has to be on the basis of a pre-conceived collective, often an
ideology? What is market without the collective of producers and consumers? What
is class without the collective of people who share a common historical
consciousness? What is socialism without the collective of the cooperative?
“What does being human in the world mean? Does it mean the sum total of identities
one acquire and qualities one share by being part of an ideological collective? And
what is my identity, an African woman in a so-called Third World—is my identity too
will be determined in relations to the collective to which I am part, no matter
whether I assimilate myself to that collective or not? What is the social justice which
I and many other individuals can seek in the world, if the systems fail them—is it the
idea of justice based on a particular model of governance? Mind you, we have been
left alone by the pestilence—how should we re-imagine ourselves when we are one
and alone? If five of us constitute the reality, then we need an alternative which can
help us discover ourselves and then through that discovery the world”.
“O learned ones, thus I maketh my humble submissions”. Thus concluded Ms.
Marizu.
Ms. Marizu’s musings left others in a quandary, as no one has thought about the
absence of collectives in their befallen world”. Then spoke Mr. Carlos,
“Although I have my ideas to share with you, before I do that, it is essential that we
respond to the question posed by Ms. Marizu, as all our ideas, including my
unspoken idea is based on notions of community. Although, we are left alone in this
world, I have found that outside our world, a student of LL.M. in Jindal Global Law
School is reading us. In a queer interplay of real and surreal, our thoughts have
become so closely interconnected with that reader. Let them advise us, as they live
with the type of identities in the collective we had until yesterday”.
Thus the members of the surviving group have sought your advice. Please help them
understand how all the models discussed by them can sustain if individual is severed
from the collective. If you have an alternative model for the individual (in the global
society)—women, subaltern subject, sexual minority, of a mixed race, dual
nationality—to rediscover their human identity without being part of conflicting
ideologies, advise them on the same. In doing this, feel free to draw on any materials
and ideas you have engaged with as part of the course, Law and Justice in a
Globalizing World. Your answer should be in the language of law and policy.
For Section B Only

Since its birth, Globalization seems to have had the outlook of oppression and
invasion, starting notably from the explorations of Christopher Columbus and his
men, allegedly discovering the Americas and forcefully acquiring resources:
European sea adventure in search of capital seemed rampant in the 15 th century, and
the Catholic Pope was allegedly the ruler of all mankind. Non-Christian peoples
including those of West Indies were described as heathens, savages and uncivilized
people who deserved subjugation. However, in the context of trade, it appeared that
the early European adventurers, particularly the Spanish people recognized the
Indians as reasonable, perhaps, to legitimize the acquisition of resources from the
Indians in exchange for cheap wares. As Vitoria penned, the Indians were not
allowed to resist the entrance of the Spanish into the former’s territory: resistance
was considered an act of war, which thus justified invasion and enslavement.
Although the Indians were considered reasonable in the context of trade, their
culture was however considered barbaric from a political standpoint, thus incapable
of forming part of the Ius Gentium: as Vitoria opined, the Indians needed to be saved
from themselves. Western scholars such as Hugo Grotius (celebrated as the father of
international law), and John Selden, mainly wrote in ways that justified and
projected their respective countries’ narrow interests and acts at the global arena.

Globalization and capitalism appear somewhat inseparable: much of the history in

their regard has been about the aggressive search for capital and its replication with
cheap labour from around the globe, and the interactions underlying these
phenomena have shaped the world history: e.g., the search for capital and cheap
labour likely resulted to the unilateral ‘discovery’ of already occupied places (terra
nullius) and the enslavement of people, using their free labour to cultivate cash crops
in large expanses of land, perhaps re-echoing realism as a reliable account of the
history of globalization as opposed to idealism. In that sense, the Industrial
Revolution of the 18th century and the fierce agitations of the enslaved people, must
have contributed to the end of slavery as machines became more effective in the
production goods compared to the use of human labour, and the various slave
uprisings made enslavement unsustainable, thus reducing the profit or incentive in
chartering and maintaining slaves in their large numbers: this accords largely with
Eric Williams’ central thesis this in his book titled Capitalism and Slavery.

Interestingly, Third World scholars, following the political independence from

colonialism mainly in the 20th century, realized the impossibility of totally tossing
away international law and its institutions which already have deep structures of
colonialism and oppression. However, a critical dualist approach has been suggested
as the way forward: an approach that helps in rethinking certain mainstream
concepts such as Comparative Advantage, which in effect, largely condemns
developing countries as perpetual sources of raw materials and consumers of
finished goods, thus impeding the growth of their local industries. Also, the World
Trade Organization’s National Treatment and Market Access principles with their
accompanying sanctions for breach by any member state, tend to basically favour the
export-dependent western countries. Similarly, the opposition of a strict and general
application of the Martens Clause by some western countries; the fact that Article
38(1) of the International Court of Justice (ICJ) Statute is a major source of
international law, but in truth, bears the deep marks of western culture and
experiences; and Sovereignty and its exception under Article 51 of UN Charter
suspectedly being used as a weapon against developing countries, etc., all seem to
show that globalization and international law are Western tools to legitimately keep
developing countries at the periphery.

1. In your opinion, how has globalization affected international law and its legal
institutions? (500 words, 6 marks)
2. Is much of the scholarly writing in the domain of international law a
functional justification of state (narrow) interests? (500 words, 6 marks)
3. Is Customary International Law and its alleged commitment to state practices
merely the global West’s iron fist in a velvet glove? (500 words, 6 marks)
4. Viewing from the lens of Third World Approach to International Law, how do
you appreciate Article 38(1) of the ICJ Statute? (500 words, 6 marks)
5. Is public international law a mere superstructure of a Marxist account of
globalization? (500 words, 6 marks)

For Section C Only

The Treaty Division of the Ministry of External Affairs of India has been engaged in
negotiating several new treaties on transfer of technology from countries such as
USA, Sweden and Germany. The contextual background of these recent rush for new
treaties is the Paris Climate Accord which obligates developed and developing
countries to reduce greenhouse emissions. The developed countries have been
backtracking on their commitments by citing unfair treatment vis-a-vis developing
countries for whom have been set lower emission standards/targets to achieve as a
part of the global commitment towards climate change reduction initiative.
Surprisingly, despite burgeoning energy needs for a huge energy guzzling population,
India has performed very well in reducing greenhouse emissions. It is all the more
commendable since developing countries collectively have pitched in for using fossil
fuels to generate energy owing to a lower level of technological and industrial state of
development. However, given the fast climatic change that Earth is experiencing and
acknowledging that developing countries indeed house majority of global energy
requirements in order to meet the development goals for its populations, there is
imminent need for developing countries to have access to green technologies.
Even though India has been striving hard to draft multilateral as also bilateral
treaties for transfer of technology, major tech countries have been going slow on this
count, little realizing that their individual concerns are likely to exacerbate
irreversible climatic changes and eventually when the technology transfer treaties are
eventually negotiated and agreed upon, it might be a case of too little and too late.
International policies on technology transfer are controlled by powerful MNC’s and
TNC’s. The clout of these corporations is very carefully cultivated and even the most
powerful governments find it difficult to break free. Even though UN has mandated
through its UNGA resolution 54/50 (1990) to urge “Member States to undertake
multilateral negotiations with the participation of all interested States in order to
establish universally acceptable, non-discriminatory guidelines for international
transfers of dual-use goods and technologies and high technology with military
applications; encourages UN bodies to contribute, within existing mandates, to
promoting the application of science and technology for peaceful purposes”, there
has been little adherence to this principle, despite Paris Climate Accord having been
agreed upon by the global community.
You are an intern at the office of MEA and are aware that some of the multilateral
treaties on Transfer of Technology favor the rich and powerful nations which in turn
is actually a favour to the big corporations. The colleagues laud you as a resident
TWAIL enthusiast. You are also aware that hazardous technology and substances are
heavily regulated in the developed countries but these technologies and substances
are exported to countries such as India, which by reason of late liberalisation of
market economies, nascent state of privatization and lack of financial resources for
building adequate infrastructure, have little bargaining power which is coupled with
inadequate knowledge of handling such technology. Bhopal Gas Tragedy is a
constant pointer in this regard when the Treaty Division is preparing a draft for
technology transfer treaty. Govt. of India is now planning to take one of the tech
controlling nations (imaginary / real country) to WTO DSB/ ICJ for enforcing its
commitment under customary international law, WTO Rules, the UN framework as
also the Paris Climate Accord for a fair negotiation on technology transfer. Your
supervisor has asked you to answer these questions in an upcoming meeting:
1. International Law has norms with varying degrees of cogency, persuasiveness
and consensus. These are often divided into ‘soft’ and ‘hard’ norms. As a
practitioner of International Law from India, how do you examine the
enforceability of such norms? Which of these norms favor countries like
India? Do these norms always bring about enforceable rights and duties in
International Legal Framework?
2. Your supervisor believes that evolution of customary international law has an
inseparable connection with the rise of capitalism in the Europe. She believes
that it is used to sustain a historical social order. Under this context, she wants
you to prepare a brief with examples from areas of international law
ascertaining the value of Customary International Law as a source of
International Law.