The Hidden Architecture

This week’s joint statement by India, Pakistan, China, and the Taliban opposing US claims to the Bagram airbase has sent shockwaves through diplomatic circles. When four nations with deep mutual antagonisms unite against American extraterritorial assertions, we’re witnessing not merely a diplomatic spat but a fundamental challenge to the legal architecture that has governed international relations since 1945.

The Trump administration’s claim to retain rights to a military base in a country it withdrew from four years ago epitomizes what legal scholar Martti Koskenniemi calls “law as spectacle”—dramatic pronouncements that obscure how international law actually operates. In his seminal New Left Review essay “The Politics of International Law,” Koskenniemi illuminates a deeper reality: beneath such visible theatrics lies a vast, largely invisible legal infrastructure that distributes rights, powers, and vulnerabilities across the global economy, quietly determining who prospers and who struggles.

For India, the Bagram dispute crystallizes decades of experience with a legal order that, despite professing neutrality, systematically advantages established powers while constraining developing nations’ sovereignty. What makes this moment significant is Prime Minister Modi’s willingness to stand firm against American pressure—a marked departure from the diffidence that has historically characterized India’s engagement with Western-dominated international institutions.

The Hidden Legal Infrastructure

Beyond headline-grabbing disputes lies what Koskenniemi calls the “legal infrastructure of global capitalism”—a pervasive network of legal techniques that structures the global economy while appearing neutral and technical.

Consider India’s experience with investor-state dispute settlement (ISDS) mechanisms. Since the 1990s, India has signed over 80 bilateral investment treaties promising foreign investors “fair and equitable treatment.” Corporations use ISDS tribunals to challenge regulatory decisions—environmental protections, health measures, taxation changes—claiming such policies violate their “legitimate expectations.”

When India attempted compulsory licensing for cancer drugs to ensure affordable access, pharmaceutical companies threatened arbitration. The British company Cairn Energy won a $1.2 billion award against India in 2020 for retrospective tax demands—a sum exceeding India’s annual public health expenditure in several states. These secretive tribunals, staffed by corporate lawyers who rotate between representing companies and judging cases, can enforce awards worldwide against government assets.

Like the Bagram claim—which asserts US rights superseding Afghan sovereignty—ISDS creates legal frameworks treating developing nations’ sovereignty as conditional and revocable.

A Dense Web of Constraints

Investment treaties are merely one strand. Intellectual property rules forced through TRIPS transformed traditional knowledge into commodifiable assets, often benefiting foreign corporations while criminalizing farmers who save seeds. Agricultural biodiversity that sustained Indian communities for millennia is now “protected” by patents held in Silicon Valley.

Financial regulations from Basel meetings—where Indian representation is minimal—constrain development finance. Tax treaties allow multinationals to shift profits offshore, depriving India of revenue. The World Bank’s “Ease of Doing Business” rankings, discontinued after data irregularities, pressured India to weaken labor and environmental protections.

These rules emerged piecemeal through different forums—WTO, World Bank, bilateral treaties, arbitration centers—each claiming technical neutrality while collectively channeling power toward global capital and away from democratic states in the Global South.

Meanwhile, the dollar’s reserve status allows the US to weaponize financial systems through sanctions and SWIFT controls—power India experienced when US sanctions on Iran disrupted oil imports. India cannot print rupees to fund infrastructure without risking currency collapse, yet the US finances trillion-dollar deficits through dollar creation. This asymmetry, supported by legal architecture from Bretton Woods institutions to debt contracts governed by New York law, is presented as technical necessity rather than political choice.

How Law Frames Reality

Koskenniemi’s subtlest insight concerns how law frames our understanding. When conflicts become legal claims—about property rights, contracts, treaties—certain questions become askable while others disappear. A farmer’s suicide from debt and seed patents becomes a contract dispute. Pharmaceutical profits built on denying affordable medicines become intellectual property protection necessary for innovation.

The Bagram dispute illuminates how sovereignty operates differentially. When the US withdrew from Afghanistan, it retained claims to infrastructure it built—framing American investment as creating permanent rights. This mirrors ISDS logic where foreign capital generates legal protections against sovereign decision-making.

Contrast this with India’s treatment. When India exercises regulatory authority—revoking licenses, issuing compulsory licenses, adjusting tax policy—it faces arbitration claims framing sovereign acts as violations of investor rights. The double standard is stark: established powers claim extraterritorial rights based on past investments; developing nations exercising identical sovereignty face legal challenges and financial penalties.

India’s Emerging Assertiveness

For years, India’s response to these structural constraints has been tentative and fragmented. The government has renegotiated some investment treaties and used TRIPS flexibilities for compulsory licensing, but always cautiously, under constant industry pressure and Western diplomatic censure.

The Bagram stance marks a departure. Prime Minister Modi’s willingness to publicly align with Pakistan, China, and the Taliban against American extraterritorial claims—particularly Trump’s bullying posture—signals a new assertiveness. This is not mere tactical positioning but a principled rejection of the double standards Koskenniemi exposes: where Western powers claim permanent rights based on historical investments while treating developing nations’ sovereignty as conditional.

Modi deserves credit for this courage. Resisting American pressure, especially from a Trump administration known for economic coercion, requires political will that previous Indian governments often lacked. The optics may be uncomfortable—standing alongside traditional adversaries—but the underlying principle is sound: sovereignty cannot mean different things for different nations.

However, this boldness on Bagram must evolve into systematic engagement with the broader legal infrastructure. Indian legal education still treats international law as neutral rules rather than power relationships to be challenged. Policy debates remain trapped in technocratic language—growth rates, credit ratings—obscuring fundamental questions about who benefits. Civil society organizations fighting specific battles—farmers opposing seed patents, patients demanding drug access—rarely connect their struggles to this larger architecture.

The challenge is to transform tactical defiance into strategic restructuring.

A Pivotal Moment

The Bagram controversy offers a teaching moment, and Modi has seized it. By making visible how international law creates asymmetric rights—treating sovereignty as absolute for some and conditional for others—India’s stance demonstrates that even rivals can recognize shared interests when fundamental principles are at stake.

Building on this momentum requires deepening our engagement with Koskenniemi’s insights. We need broader legal literacy about how international economic law actually functions, beyond nationalist rhetoric. We must connect domestic struggles to global structures, recognizing that farmer suicides, pharmaceutical pricing, and extraterritorial military claims are symptoms of deeper legal arrangements.

India’s legal talent—currently deployed largely in corporate service—could be mobilized for systematic documentation and critique of these mechanisms. Coalition-building with other Global South nations becomes essential, extending beyond elite diplomacy to popular movements demanding democratic control over rules structuring economic life.

The current moment is pivotal. American hegemony faces unprecedented strain. China’s Belt and Road offers alternative infrastructure financing. BRICS nations explore payment systems bypassing dollar dominance. The legal infrastructure Koskenniemi describes now faces challenges it wasn’t designed to withstand.

Modi’s willingness to stand against Trump’s bullying shows India can chart an independent course. The question is whether we can transform this tactical boldness into strategic vision—not merely resisting specific American overreach but systematically reimagining international law on more equitable terms.

That requires first seeing clearly what exists—the laws that rule us, operating beneath spectacle, quietly distributing sovereign rights and life chances across borders. The Bagram controversy, seemingly about a single military base, actually illuminates the entire architecture. Only by understanding how this system elevates certain property rights over democratic sovereignty, treats nations differentially while claiming universality, and channels resources systematically upward, can we begin changing it.

India’s Bagram stance is significant precisely because it refuses the false choice between accepting subordination and isolated nationalism. By building coalitions around shared structural disadvantages, we can work toward genuinely more equitable structures for global governance. Modi has shown the political courage to take this stand. Now we must build the intellectual and institutional capacity to sustain it.