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The Postcoloniality of International Law

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Sundhya Pahuja at University of Melbourne
Sundhya Pahuja
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HeinOnline -- 46 Harv. Int’l L.J. 459 2005
HeinOnline -- 46 Harv. Int’l L.J. 460 2005
HeinOnline -- 46 Harv. Int’l L.J. 461 2005
HeinOnline -- 46 Harv. Int’l L.J. 462 2005
HeinOnline -- 46 Harv. Int’l L.J. 463 2005
HeinOnline -- 46 Harv. Int’l L.J. 464 2005
HeinOnline -- 46 Harv. Int’l L.J. 465 2005
HeinOnline -- 46 Harv. Int’l L.J. 466 2005
HeinOnline -- 46 Harv. Int’l L.J. 467 2005
HeinOnline -- 46 Harv. Int’l L.J. 468 2005
HeinOnline -- 46 Harv. Int’l L.J. 469 2005
HeinOnline -- 46 Harv. Int’l L.J. 470 2005
... Consequently, the peoples of the Global South have found themselves subjected to this process of exclusion, being different from the European and, at the same time, compelled to become equals. This dynamic encompasses both the 'liberating promise' and the 'imperialist threat' of universalist claims (Pahuja 2005). ...
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... Scholars have consistently pondered about the crisis and consequent future of the LIO, as other international stakeholders challenge the current hegemon (see Ikenberry 2018; Kochi 2020). 6 International Law, as a discipline and discourse of crisis (Charlesworth 2002;d'Aspremont 2022), is constantly under scrutiny for its role as an empire-serving, neocolonial-facilitating "cloak of legality" (Pahuja 2005) that continues to promote Western rule structure and reform in the colonies and the Global South before and after formal colonialism (Koskenniemi 2016). Furthermore, the moral rhetoric of liberal pragmatism masks deeper structural issues contained within the international legal framework as a distraction from the inadequacy of global liberal politics and law to address the root causes of global social conflict and widespread problems of social injustice and inequality (Kochi 2020 (2010) observes, although the American liberal hegemonic order is in crisis, it appears to be a crisis of the American governance of liberal order and not of liberal order itself. ...
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... This narrative of dispossession, discussed in the first paper, established systemic inequalities that persist in contemporary governance systems. Today, migration policies often reflect similar biases, portraying migrants as undeserving of full integration or citizenship while maintaining the dominance of the self in territorial governance (Pahuja, 2005) (Gümplová, 2021). ...
Reimagining Property Rights through Environmental Justice: Toward Equitable Land Distribution for a Sustainable Future: Research Series. Paper 2: Migration, Belonging, and Territorial Identity: Public Policies and CaseMStudies Shaping Land Governance and Property Rights
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upon the arguments introduced in Paper One: The Intersection of Environmental Justice and Traditional Land Tenure Systems: Shaping Belonging Beyond a Nation, this paper continues exploring land governance through principles of equity and sustainability. Paper One established how environmental justice (EJ) and traditional land tenure systems can redefine property rights, advocating for equitable access to land and resources for Afrodescendant, Indigenous, and migrant communities, whose rights have historically been marginalized under dominant property regimes. Expanding on these foundations, this paper examines the role of migration and displacement in reshaping territorial rights, belonging, and land governance. Migration has been a defining force throughout human history, reshaping economies, cultures, and territorial dynamics. From European colonization of the Americas, Africa, Asia, and Oceania during the colonial period to contemporary movements of people fleeing crises or seeking better opportunities, migration has persistently transformed societal landscapes. Despite its transformative impact, migration is often portrayed through polarized and racialized narratives. Historically, European migrations were celebrated as drivers of progress and development, while contemporary South-to-North migrations are frequently framed as crises. These narratives expose deep-seated geopolitical and racial biases that overshadow migrants' contributions and reinforce systemic inequities. This paper posits that integrating environmental and territorial justice principles into governance frameworks can address these inequities by transforming property systems to include migrant, native, and displaced communities. Indigenous perspectives and collective rights are central to this analysis, demonstrating how migration simultaneously disrupts and enriches territorial identities. This duality challenges exclusionary power structures and creates opportunities for shared governance and collaboration.
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... MANTELLI e BADIN 2018, p. 15). 3 Dentre os representantes deste movimento, destaca-se Sundhya Pahuja. Em seu artigo "The Postcoloniality of International Law", Pahuja (2005) denuncia a universalização do direito internacional (ocidental em suas raízes) através do processo de descolonização, quando os Estados recém-independentes, ao passarem a fazer parte do sistema internacional, e por conseguinte de seu sistema normativo, vincularam-se a normas construídas por e para os Estados europeus. Ainda, Pahuja (2005, p. 463-464) expõe que o direito internacional serviu para estabelecer as condições jurídicas através das quais se daria o processo de descolonização: a única maneira atingir a independência seria através do exercício do direito à autodeterminação enquanto um Estado-Nação e respeitando a manutenção das fronteiras desenhadas pelos colonizadores sob o princípio do uti possidetis juris. ...
Lendo os Tribunais Internacionais a partir das Perspectivas Pós- e Decoloniais
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As abordagens pós-coloniais e decoloniais provaram ser altamente pertinentes e valiosas na análise dos tribunais internacionais. Eles fornecem uma perspectiva crítica e um quadro teórico que enfatizam questões relacionadas ao poder, à dominação, à desigualdade e à justiça nas diferentes dinâmicas da prática jurídica internacional. Este artigo pretende fornecer uma avaliação sobre a forma como os princípios fundamentais das abordagens pós-coloniais e decoloniais podem ser aplicados na leitura dos tribunais internacionais, de modo a proporcionar uma compreensão mais profunda sobre as suas estruturas e práticas, identificando questões subjacentes de poder, desigualdade e dominação. Para isso, este artigo está estruturado em duas partes: a primeira explora os principais conceitos das teorias pós-coloniais e decoloniais e suas contribuições para a nossa compreensão do direito internacional; a segunda parte liga os argumentos destas teorias à prática dos tribunais internacionais, de modo a destacar os caminhos possíveis para analisar criticamente as relações coloniais incorporadas na prática dos tribunais internacionais.
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... Drawing from what Professor Sundhya Pahuja calls 'defining exclusion' with regards to the paradox of international law, it is through the exclusion of 'foreigners' that the defining characteristics of the 'citizen' are retained. 53 The exclusion of the 'illegal immigrants' (claimed to be Bangladeshi Muslims), performed in the name of the NRC, works well with the current Government's idea of Akhand Bharat (undivided India) which includes territories of Pakistan and Bangladesh. 54 While they would be included territorially within undivided India, they would be expelled owing to their otherness (non-Hindu). ...
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