The Role of Law in Counter-Hegemonic Globalization and Global Legal Pluralism:Lessons from Narmada Valley Struggle in India

Balakrishnan Rajagopal

Associate Professor of Law and Development, Director of the Program on Human Rights and Justice at MIT;

He received his B.L. (equivalent of J.D.) from University of Madras (India), an LLM (Masters in Law) from the American University in DC and an interdisciplinary SJD from Harvard Law School;

Served with the United Nations High Commissioner for Human Rights in Cambodia between 1992-97;

His most renounced publication, “International Law from below: Development, Social Movements and Third World Resistance” (Cambridge University Press, 2003).

Balakrishnan Rajagopal

“Multiplication of legal universes” brought about by Globalization and Counter-Hegemonic Globalization.

Explaining such relationship has been focused on compliance/effectiveness of international norms in domestic legal orders. (IR)

The article examines limits and possibilities of these approaches, arguing that the use of law by a social movement is a concrete instant of counter-globalization in which IL is one of the many legal orders “LEGAL PLURALISM” .

Impossible to tell in advance which normative order will best advance cosmopolitan goals like human rights.

The Main Ideas…

Draws sharp distinctions between the national and the international sphere, locating a norm is seen as an external to the reality which it seeks to affect;

Works with an implicit unitary conception of the state.

Its neglect of domestic institutions; It assumes that international norms, ex. HR to

housing, has a core meaning that everyone agrees upon;

It does not ask the crucial question of how victim groups perceive the law.

Part I: Problems with the new literature on compliance/ effectives with regards to usefulness and legitimacy (IR, IL):

The article offers an analysis of the Narmada Valley Struggle, with a specific focus on the role of India’s Supreme Court.

1. Transnational character of NBA resistance; 2. Normative and institutional character of

the project operated simultaneously on multiple levels;

3. The Role of India’s supreme court in the struggle;

4. Illustrates the difficulty to judge the role played by law and courts in counter-hegemonic globalization.

Logic Behind Selecting this Case Study:

Outcomes of social movements engagements with the law depend on the extent to which they can frame their demands and engage in struggles that avoid a direct confrontation with state sovereignty, and its ideological foundation of “developmental nationalism” ;

Critique of the ideological foundations of state sovereignty because of the tension between the increasing ability of social movements to operate at multiple levels beyond state borders .

Part II: Relationship between law, globalization and counter-hegamonic globalization – key theoretical issues.

Significant tensions between the internal logic of state law, language methods and sources of legitimacy and the logic of social movements struggles;

The Idea of “linear progression” in which there is initial resistance to international law, but is overcome through socialization and internationalization of norms by domestic institutions (strategic behavior of domestic actors?

Difference in according importance to IL, IR theories (SA and USA examples)

A struggle dating back to post colonial times, framed in the context of national development;

“Narmada Water Dispute Tribunal” judgment in 1979 –continued struggle of the locals.

New transnational dimension to the struggle in late 1980s, forming NBA and some major successes at the transnational level;

As confrontation between the state and movement intensified, NBA decided to resort to the Supreme Court in 1994. (agreement to have the court as the final arbitrator?)

Part III- Evolution of NBA struggle and background to litigation before the Indian

Supreme Court

“ Initial sympathy of the court, then a complete alteration of stance; finally resulting in its conclusion of the final order to proceed with the dam as soon as possible…

its decision left no doubt that the final decision making authority belonged to the political arena, and that its construction was much more important than the social and environmental costs it imposed: “Dead End”

Seal of approval for the project, leading to a major

blow to the NBA legitimacy and moral capital.

Part IV – Judgment of ISC and a critique of the Judgment

1. Evolutionary ? What is this conceptualization “ a view of human progress in which the modern is always epistemologically superior to the traditional”.

2. Nationalist? Securing India’s border with Pakistan, ensuring national development through better infrastructure, food security and electricity.

3. Developmentalist? dams as tools of development; casting the overall utilitarian argument in terms of public welfare, "sacrifice of some for many”.

4. Statist ? faith in the state’s ability of setting up state agencies and procedures fulfillment.

5. Legalist? law favors the work on the dam to continue.6. Adjudicatory? rest reasoning on the institutional role of the

court, the distinction between law and policy, the former being all that the court is concerned with.

Why did the court pass its Judgment in this manner?

Selective Cosmopolitanism

The question whether law can be emanicpatory can not be answered easily because it depends on various dynamics between various levels of law;

Three Levels of Change : ◦ It led to outcome change, evident at the international

level – involvement to pull the WB out, establishing World Commission on Dams, but on the overall it failed, leaving the movement at the mercy of the Indian state.

◦ It had a moderate impact on decision making processes. ◦ Value change, some success …relating to values of

sustainable development because of the cultural dimensions of counter-hegemonic globalization.

Part V – Three Possible Modes of Assessing the Relationship between the NBA Struggle

and the Law

Part VI- Overall Conclusions on the role of law in Counter hegemonic globalization

The role of law in the struggle was complex, it was conducted at multiple levels, using different alliances and tactics over two decades;

The movement was able to succeed in having an impact on

the values that underline development discourse at the international level but failed to do so at the domestic level;

Challenge to conclusions of IL and IR scholars who assume the incorporation of international norms through socialization to be linear and irreversible;

There is no single, inherent and coherent international sphere separated from domestic sphere -” legal pluralism, can only understand complexity by studying case by case basis.

Critique …..

Possible link with thesis topic?

The compatibility of the international trade system with

environmental standards

Thank You ! Questions ?