Decolonising International Environmental Law

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The Director of the Institute for International Law and Humanities at the Melbourne Law School in Australia Professor Sundhya Pahuja gave an address at UKZN at the invitation of the Law School on decolonising international environmental law.

Pahuja examined attempts by scholars and practitioners to decolonise international law and its relation to the environment, arguing that broadly speaking these attempts have played out in three phases, and that with each one the environment had figured differently.

Pahuja suggested that attending to those phases and differences could help gain an understanding of how to decolonise international environmental law today and draw out strategies for the future.

‘While textbooks seldom mentioned colonialism and imperialism in the past, it has now become impossible for international lawyers to claim to be unaware of the relationship between imperialism and international law,’ said Pahuja.

She spoke further on historical international legal doctrines that justified imperialism and facilitated land appropriation and resources extraction through using international law as a means to ‘civilise’ the non-European world and downgrade other forms of law as “custom” or “traditions”.

Investigating the three phases of decolonising international law, Pahuja labelled the first phase a battle in the middle of the 20^th Century between those who wanted to end the practices of imperialism (ie the Third World) and those who sought its continuation (ie the First World). Environmentally, she looked at how the so-called First World had taken up industrialism and how, through environmental orientalism which was deeply racialised, had presented Third World environmental living as being backwards and non-modern.

‘At the end of the Cold War, the Third World project to institute a new international economic order was defeated, and it’s through this combination of defeat and the durability of imperial patterns of relation that decolonising international law phase two was born,’ said Pahuja.

She highlighted how international law had facilitated imperial extracts and had mechanisms in place to prevent reparations for it afterwards, underlining how ‘sovereignty had been forged in the colonial encounter and governed by an idea of the dynamic difference that created a hierarchy between sameness and difference, where people who were “different” were needed to be “transformed”.’

Pahuja said phase three of decolonising international law interrogated:

•    environmental orientalism that racialises and discredits light touch environmental living

•    prevailing development’ models that are dependent on growth

•    the articulation of the Third World within a global economy structured around global value chains

•    the inherited state form, built on both property and resource extraction

•    circumstances of increasing environmental differences, where the risk is shared globally, but the vulnerability is unevenly distributed

‘When we make a decision about what strategy to adopt, we must be attentive to the price of the strategy we select by paying close attention to history,’ she added.

Words: Hlengiwe Precious Khwela

Photograph: Yola Ndzabe