In this post, Sandrine Brachotte presents her doctoral work on private international law and so-called “conflicts of worldviews”, which she undertook at Sciences Po Law School (Paris), in English, under the supervision of Horatia Muir Watt. The PhD Dissertation, entitled ‘The Conflict of Laws and Non-secular Worldviews: A Proposal for Inclusion’, offers an alternative theory of party autonomy, public policy and international jurisdiction that aims to be more inclusive of postcolonial claims at the global level.
This doctoral work connects the discipline of private international law with an intellectual movement that has found its way into several branches of law but remains marginal in this discipline, that is decolonial theory (called “decolonial legal studies” when focused on law). To put it in a nutshell, this movement calls for an alternative production of knowledge that would follow non-Western sources and processes. It also asks for the re-empowerment of non-Western ways of living and seeing the world, which are here called “worldviews”. It does not only target postcolonial contexts but aspires to be embraced at the global level. There, it does not demand that Western productions of knowledge and worldviews be replaced by their non-Western equivalents but instead that the latter be recognised as equal to the former. Such pluralisation requires departing from the ‘modern episteme of universalism’ to endorse the paradigm of pluriversality, i.e., to acknowledge that ‘several worlds, and not only the Western world, have world visions that they aspire to be universal’.
In this regard, the dissertation seeks to contribute to the decolonisation of private international law by proposing an alternative theory of several paramount concepts of the field, to make them more inclusive of non-Western worldviews. To do so, as further explained below, the PhD dissertation starts from three Western court cases involving postcolonial claims brought before Western state courts, to show that the latter are poorly addressed under conventional legal reasoning. The reason thereof is that the said claims relate to worldviews that conflict with the worldviews underlying Western state law – hence the expression “conflict of worldviews”. Then, the dissertation links these conflicts of worldviews to the most relevant pillars of Western private international law.
The Case Studies: Religious Arbitration, Sacred Land and Faith-Based Politics
The decolonial approach does not only involve substantive requirements (simplistically summarised above) but also methodological requirements, which are to enable the researcher to think outside of the conventional legal framework (that is considered as reflecting Western worldviews). Therefore, the dissertation starts from cases that do not especially involve questions of private international law. What matters is that they involve postcolonial claims that challenge state law’s worldviews because they reflect postcolonial ways of living and understanding the world. More concretely:
(i) Jivraj v. Hashwani ( UKSC 40) (hereafter “Jivraj”) confronts state law with a religious form of arbitration, i.e. Ismaili arbitration, where the collective interests of the Ismaili community are central to the resolution of the dispute, in line with the religious ethos. This conception of arbitration contrasts with the legal, “secular”, conception of arbitration, which is to reflect the materialistic and individual interests of the parties. This disparity justifies distinct understandings, in Ismaili arbitration and in “secular” arbitration respectively, of the fact to choose arbitration – a question that was at the heart of the Jivraj case. In “secular” arbitration, an arbitration clause reflects a choice limited to the specific contract or business relationship concerned, which is to better serve the interests of the parties than court litigation (which is the “by default” dispute resolution process). Differently, an arbitration clause in favour of Ismaili arbitration corresponds to the normal way to proceed in intra-Ismaili disputes. It reflects the parties’ Ismaili ethos, which is to solve disputes to safeguard the peace in the Ismaili community.
(ii) Ktunaxa v. British Columbia (2017 SCC 54) (hereafter “Ktunaxa”) confronts state law with Indigenous ways of living, especially the notion of sacred land, which is based on a conception of the land as a living thing that is the source of Indigenous spirituality. This conception can hardly be recognised within legal categories, including freedom of religion, which the Ktunaxa (an Indigenous People in Canada) claimed was violated by a ski resort project to be built on land sacred to them. Indeed, freedom of religion, like other legal categories, is grounded on a material conception of land, according to which the claim of a relationship with the land must be grounded on sovereignty or on private ownership. As a result, freedom of religion can lead to protecting a religious belief or practice, but not a sacred land, unless the believers have ownership thereof. However, under Indigenous ways of living, the right to private property of sacred land is a non-sense, since the land is “God” (who they often call “Mother Earth”).
(iii) SMUG v. Scott Lively (254 F. Supp. 3d 262 (D. Mass. 2017); No. 17-1593 (1st Cir. 2018)) (hereafter “SMUG”) confronts state law with the American Evangelical “anti-gay” propaganda in Africa, which constitutes a form of faith-based politics that places African LGBTQIA+ people in an even more vulnerable position. Yet, this phenomenon cannot be considered under the principle of state territorial jurisdiction and the doctrine of international comity that ground international jurisdiction in the United States (US). These legal concepts rely on the assumption that states govern society, not transnational economic or religious actors. Yet, in the case at hand, an American Evangelical was sued before US courts by African LGBTQIA+ rights defenders, for its active participation in the prosecution of LGBTQIA+ people in Uganda. In this context, Ugandan law appeared instrumentalised by a transnational religious actor, since the defendant had initiated and supported the drafting of a legislative proposal reinforcing the criminalisation of activism in favour of LGBTQIA+ rights.
Lessons Learned to Decolonise Private International Law: Another Theory of Party Autonomy, Public Policy and International Jurisdiction
The PhD dissertation links the conflict of worldviews at play in the cases presented above to one pillar of private international law that they resonate with or directly concern. It further shows that the conventional theory of these paramount concepts cannot make sense of the postcolonial claims involved in the cases, because they, unsurprisingly, reflect Western worldviews. Then, alternative theory are proposed that would better include the non-Western worldviews concerned in the case studied. Hence, the following research findings are proposed:
(i) The notion of choice of arbitration at stake in Jivraj is linked to the notions of choice of court and choice of law. All these notions rely on the principle of party autonomy, which justifies a secular and individualistic understanding of choice of court or arbitration and choice of law, which fit secular worldviews but not Ismaili (and other religious) worldviews. Therefore, the PhD. dissertation proposes a more politically engaged understanding of party autonomy, understood as a form of self-determination, which would entail courts’ enquiry about the motivations underlying the court, arbitration and law choices made by the parties.
(ii) The claim at the origin of Ktunaxa consists of a demand for the protection of Indigenous sacred land, irrespective of property and sovereignty issues. This notably requires prioritising ecology and spirituality over these issues, which is generally not reflected in the current private-international-law rules. More broadly, the claim made in Ktunaxa is an example of the rising claim for the recognition of Indigenous ways of living at the global level, which asks for the inclusion of Indigenous perspectives in law in general, and not only via the granting of “special Indigenous rights”. In these regards, the Ktunaxa case calls for an alternative theory of the exception of public policy. This notion would then not be to safeguard the core values of the forum, but instead to prioritise the respect of “eco-spirituality” over national laws and judgments that would be contrary thereto, including those of the forum.
(iii) The issue brought before US courts in the SMUG case boils down to unbalanced power relations at play in a postcolonial context, which are grounded on the map of state jurisdictions. Especially, transnational actors like Global North-based religious missionaries and multinational corporations strategize around this map, while vulnerable postcolonial communities are submitted to it – a situation that human rights NGOs try to counterbalance, notably via transnational human rights litigation. In this context, the theory of international jurisdiction appears crucial, especially regarding the practice of forum shopping, which can be notably used both by illiberal or economically overpowerful transnational actors and by human rights NGOs conveying the voice of vulnerable postcolonial communities. This circumstance is however not part of the considerations that underly the usual regulation of international jurisdiction. In this respect, the PhD dissertation advocates for the adoption of a theory of international jurisdiction that would consider global welfare and intersectional discrimination, opening the door to a case-by-case approach to forum shopping that targets the political recognition of postcolonial states’ vulnerable communities.