Prabhakar Singh ([email protected]) teaches at the O P Jindal Global University, Sonipat, Haryana.
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.
I thank M S Verma and Rohini Thyagarajan for comments and conversations.
Could we conceptually displace territoriality as an essential element in the construction of sovereignty as understood within international law? Decolonisation’s prime irony is that postcolonial governments have set upon themselves, perhaps inadvertently, the task of constructing a colonial state. However, what is central to the continuities of colonialism in postcolonial times? Antony Anghie (2005: 243) argues that colonialism is germane to the formation of international legal doctrines. Matt Craven, however, charges Anghie with essentialising colonialism. He suggests that the regime of unequal treaties between the Western powers and the East Asian (China and Siam or Thailand, for instance) and not colonialism proper, is central to understanding the postcolonial continuities of informal empires (Craven 2005: 382). Be that as it may, while Anghie’s approach contributes to international legal theory, Craven’s is to international legal history.
Yet for a conceptual rethinking of colonialism, the indigenous, and the law in postcolonial Asia, both approaches leave serious issues unaddressed. To meet the ends of justice for the indigenous peoples, the above-mentioned debate, nevertheless, eggs on lawyers to think outside of law. Perhaps a composite lens of anthropology, history, linguistics and semantics could offer what I call the “vernacularisation” of Westphalia in Asia as a way forward.
After decolonisation, the historical reality of blue-water colonialism—as against settler colonialism of Asia—allowed Asian governments to sacrifice vernacular nations at the altar of national unity. The project of postcolonial nationalism that continues the colonial injustices, particularly over the indigenous peoples, is an apt example. Defeating the rigour of the Westphalian sovereignty, thus, is wholly in keeping with the goal of reconceptualising postcolonial states in Asia.
In 2011, the Supreme Court of India was characteristically bold, if somewhat critical, of the Indian government’s long-time international position on indigenous peoples, saying “India is a country of old immigrants in which people have been coming in over the last ten thousand years or so” (Kailas v State of Maharashtra 2011: para 20–21). In those words, the Court admonished the postcolonial governments’ reluctance to self-reflect on its project of totalising nationalism within territorial boundaries. Blinded by doctrinaire formalism, international law, unlike anthropology, conflates nations and states and, unsurprisingly, postcolonial governments are its biggest subscribers.
‘States’ or ‘Nations’?
Are nations and states one and the same in law? It is true that Westphalia’s good-intentioned critique in Asia and elsewhere is often advanced without supplying the details of that critique. The distinction between an Asian and the Western notion of a nation is the starting point of my enquiry. In fact Chanakya, Arthashastra’s author, and Confucius, both, are, if you will, ancient Asian cousins of Machiavelli and Hobbes. Consequently, I argue, that the nature of governments might have been same in the ancient East and the medieval West, however, not their conceptualisation of nations. Semantically, the biological nature of nations in Europe is in stark contrast with its lack thereof in Asia. Sheldon Pollock (2006: 474) writes:
It is no accident that in its historical semantics the term desi, the cultural practices of Place, which was used to reference the new culture-power complex of the vernacular millennium in southern Asia, should contrast so dramatically with the trope of biological descent used in Europe (for example, natus, ‘[in]born,’ yielding ‘native,’ and ultimately ‘nation’). In Europe, by contrast, language names reﬂect facts of biology and ethnology and so belong to peoples, like French, the language of the Franks, or English, that of the Angles.
In Asia, the equivalent of the European biological nation was a linguistic–semantic literary construction. The South Asian “literary cultures” demonstrate little concern for the “uniqueness” of “national character” that, though ﬁrst postulated by Herder in the early 19th century, has been the ﬁxation of European societies (Pollock 2006: 476).
It is almost surreal that in Kailas v State of Maharashtra (2011: para 24), the Supreme Court agrees to this:
Racial conditions have become so complicated [in India] that it is no longer possible to analyse their constituents. Language alone has preserved a record which would otherwise have been lost.
An indigenous construction of nations from below challenges dominant conceptions of the postcolonial state as the political embodiment of a nation comprising all of the people within that state (Kingsbury 1998: 422). However, language alone has maintained, as it were, a register of those nations that, with sufficient political will and conceptual re-imagination, can be revisited.
Defining Vernacular Nations
Yet the idea “to each nation a state” ends up aping the image of historical nations attached to a particular territory as the essential condition for postcolonial nation states. That static and rigid imagination is, if you will, a gift of blue-water colonialism. It is then hardly surprising that in the recent past, China, the world’s most populous country, has attempted to construct a legal definition of both colonialism and foreign (Singh 2015a: 201).
For China, as with all Asian states, colonialism is limited to European blue-water colonialism that the international law of self-determination addresses: the principle of self-determination, China said, “applies within specific limits, primarily restricted to colonial rule and foreign occupation” (ICJ 2009: 3). Notably, while comparing pre-blue-water settlements in India and China, the Indian Supreme Court unwittingly bolsters China’s nationalist project as a nation of homogeneous Han peoples: &ldquothere is a broad[er] (though not absolute) homogeneity in China” (Kailas v State of Maharashtra 2011: para 30).
The irony is deepened when along with India, where the tribal peoples are called “Adivasi” (in Sanskrit, meaning primordial dwellers), several other Asian states such as Bangladesh (for non-Bengali Jumma nations), Myanmar (Karen peoples), the Philippines (Badjao peoples), Indonesia (Bajau nation), Malaysia (the Orang Asli) and Japan (Ainu peoples) take a familiar but totalising approach. What is however notable is that a majority, if not all, of such indigenous communities are linguistic–semantic categories, mostly imposed on them either during Sanskrit cosmopolitanism or during the later European blue-water colonialism, although they are not similar events in history. Most recently, after the defeat of the Hindu state, Nepal, never a blue-water colony, has witnessed a conflict for the true inheritance of the Himalayan state between hill people and the “Madhesis,” the term originating from Sanskrit “Madhya-desi,” people of the middle country; now the people of the plains ethnically closer to the North Indians.
Vernacular nations, as a construct, stand somewhere between indigenous nations and nationalist states in Asia. Vernacular nationalism is a call to abandon the European model and embrace the precolonial Asian lifeways, particularly when Europe itself has moved on to a sharing of sovereignty. Asian states could allow a vernacular nation to flower by allowing the spaces of dispersion, as against uncritical consolidation, to exist. The idea is that many nations can exist within a state and if and when the state itself creates a supra-state, like in the case of shared sovereignty in the European Union, such nations can contract or expand by physical mobility. In such ways, states could achieve a true precolonial state in both spirit and action. Recognition of the native-first nations in Australia and Canada, a very recent phenomenon, is a good example.
When talking of a conceptual vernacular nation, international law’s instrumentalist methodology fails. Vernacularisation is a methodological tool; colonial international law that postcolonial states have held on to is normatively inadequate in appreciating the complexity, heterogeneity, and historical process of Asia’s nation state formations. It is apparent now that the top-down international law of states needs anthropology’s support.
I argue that vernacularisation can help conceptually rethink the Asian past and offer alternative futures, if not solutions. Although not without political trepidation, international law of self-determination seeks to perhaps recognise nations, if you will, from below, within states. In Asia, the inherited rigidity of sovereignty as a concept however stands to defeat this nevertheless. I argue that the power and duty to appreciate and realise vernacular nations is with the constitution of postcolonial states and not with international law. International law’s cosmopolitanism is prone to repeated failures; in any case, recourse to national law offers a better methodology and imagination for the vernacularisation of Westphalia in Asia.
Decolonisation as Reversal
Ancient Indian texts talk of a “Chakravartin” rule. Since the Ming dynasty (1368–1644), a similar Confucian world order in all of the Far East has been the currency for the Chinese foreign policy known as the “tributary system.” It continued formally until the very end of the 19th century. After 1842, the British treaty system replaced the system of foreign relations of Siam (Thailand) and China. Unsurprisingly, the governments of these states, China in particular, are at the forefront of scuttling indigenous voices as a challenge to national unity. Just as blue-water colonialism “orientalised” Asia, postcolonial governments have orientalised native indigenous peoples.
Administratively, colonial cartography, as Edward Said’s Orientalism (1979) astutely exposes, cut through nations to deliver totalising states in new sizes, territorial shapes and demography after decolonisation in a post-United Nations (UN) world. While Thailand, for instance, like Nepal, was never colonised, Cambodia was a French colony. Unlike Cambodia and Thailand in the Preah Veihar Temple case (ICJ 2013: 281), China’s acceptance of international law, a blue-water colonial enterprise, at least in its capitalist form, is selective and instrumental. As much of the contours of smaller postcolonial states were cartographed by colonial administration, for China such states stand to benefit more from international law. Therefore, large states like China and India are hung-over on colonial drawing of boundaries (Singh 2015b: 348). Although colonialism is unarguably unscrupulous, the inheritance of colonial badness often escapes the self-critique of postcolonial governments.
Asia is home to many ancient and medieval nations. Decolonisation therefore yielded about at least seven kinds of postcolonial nation states: (i) nations that were never colonised; (ii) nations that were fully colonised; (iii) nations that were partially colonised; (iv) nation states that are a product of further break-up of postcolonial states; (v) a colonial power; (vi) government in exile with nations and no state; and (vii) nations that do not see land territory as essential to their nationhood. The examples are:
(i) Nepal (never colonised);
(ii) India, the Philippines, Indonesia (a colonial territorial construction);
(iii) China, Thailand (semi-colonised);
(iv) Bangladesh (from Pakistan) and Singapore (from Malaysia);
(v) Japan (colonial power);
(vi) Tibetan government in exile in India (nations without a territory); and
(vii) The Sea Gypsies of Asia (in South China Sea, the Philippines, Indonesia, etc).
It is more than clear that nations and states are interchangeably used in Asia to stay within the determined province of positive international law. It also allows China to put hegemonic influence, tributary relationships, suzerainty and actual sovereignty into a single basket of the Westphalian state. India too uses a similar approach. Colonialism has by both its presence—creating states from nations—and absence, leaving nations to create states due to neighbouring states’ boundary drawing, indelibly shaped Asia’s future. Contested boundaries between India and China yield a prototype of dispute that is a residue of Asia’s colonial past.
China claims to take a unique approach to international law, while India’s approach is relatively more Western. This divergence of approach between China and India emanates from their historical–structural incapability in transcending their colonial past, which makes politics the sole way of handling international law in Asia. Contested colonial and precolonial history has much to add to the problem that might emerge after such legal and/or political settlement, which can only be spoken of in the language of anthropology and history. We do not yet have a conceptual framework within which to accommodate the historical reality of colonialism and offer analysis, if not solutions.
The last two of the seven types of nations states, the Tibetan government in exile and the Bajau nation, point at the need of a conceptual reformulation of the idea of a state in Asia. A conceptual vernacularisation de-territorialises states.
Today China has argued for historical rights in the South China Sea, a blue-water territory, as if sea and land are similar legal–historical spaces. This has not been the case either in the past or after the UN Law of the Sea. The Law of the Sea recognises the principle “land dominates the Sea,” and thus puts archipelagic nations at a disadvantage feeding into the arrogance of the territorial states. The vernacular approach to the state should treat land and sea as equal but not similar spaces. China’s instrumental use of historical rights, although inconsistent with the Law of the Sea, offers a window into the project of totalising states. In their somewhat uncritical pursuit of total nationalism, territorial Asian states compete with their archipelagic cousins.
Moreover, in their deployment of the precolonial historical scarcity with surpluses from colonialism, the Asian states mimic colonial opportunism and strategic co-option to use indigenous history for the construction of a territorial state. For example, the sea-dwelling Bajau peoples of Malaysia, Badjao of the Philippines, the Orang Laut of Indonesia, the Tanaka of South China and the Dan of Vietnam continue to live a gypsy way of life on blue-water territories (Hayton 2014: 7).
In effect, the sea gypsy nations reject the monopoly of land as the only inhabitable space, discounting territory as an essential constituent of a nation. Ironically, history kept them outside the fold of the territorial states even as the present attempts to co-opt them. Only by challenging, as the sea gypsies do, land’s claim to a sole inhabitable territory and rethinking the sea as a place of danger can we truly vernacularise our statist imaginations. Such a vernacularisation of the inherited Westphalia by waking up vernacular nations, as it were, from their “anthropological sleep,” has the true potential of conceptually decolonising international law (Foucault 1970: 290–91).
Anghie, Antony (2005): Imperialism, Sovereignty and the Making of International Law, New York: Cambridge University Press.
Craven, Matt (2005): “What Happened to Unequal Treaties? The Continuities of Informal Empire,” Nordic Journal of International Law, Vol 74, pp 335–82.
Foucault, Michael (1970): The Order of Things: As Archaeology of the Human Sciences, New York: Vintage.
Hayton, Bill (2014): The South China Sea, New Haven: Yale University Press.
ICJ (2009): “PRC Statement before the International Court of Justice in the Kosovo Affair,” 16 April, International Court of Justice, The Hague, http://www.icj-cij.org/docket/files/141/ 15611.pdf.
— (2013): “Request for Interpretation of the Judgment of 15 June 1962 in the Case Concerning the Temple of Preah Vihear (Cambodia v Thailand) Judgment,” International Court of Justice, Rep, p 281.
Kailas v State of Maharashtra (2011): AIR, SC, p 598.
Kingsbury, Benedict (1998): “‘Indigenous Peoples,’ International Law: A Constructivist Approach to the Asian Controversy,” American Journal of International Law, Vol 92, No 3,pp 414–57.
Pollock, Sheldon (2006): The Language of Gods in the World of Men: Sanskrit, Culture and Power in Premodern India, Berkeley, Los Angeles, London: Chicago University Press.
Said, Edward (1979): Orientalism, New York: Vintage.
Singh, Prabhakar (2015a): “India Before and After the Right of Passage Case,” Asian Journal of International Law, Vol 5, No 1, pp 176–208.
— (2015b): “Sino–Indian Attitudes to International Law: Of Nations, States and Colonial Hangovers,” Chinese Journal of Comparative Law, Vol 3, pp 348–74.