Introduction
Thank you very much Professor Padideh Ala'i for that very kind introduction. I would also like to thank you Dean Camille A. Nelson of the Washington College of Law and the Society for this really special honor of inviting me to give the Grotius Lecture this year. I also thank the President of the Society, Catherine Amirfar, for her leadership and stewardship. My thanks too to my friend, Fleur Johns, for accepting to be the discussant for this lecture. Like you, I look forward to her response very much.
I have titled this lecture, “The Promise of International law: A Third World View.” This lecture argues that one important way to trace the promise of international law at this moment of difficulty is to go outside the beltway of our discipline to places often unfamiliar in our textbooks and the locations where we practice and teach international law. To do that, this lecture will take you to places like Arusha, Tanzania, which until not too long ago was the seat of three international courts. By taking you to places like Arusha, Tanzania, the goal of this lecture is to make two primary points.
First, I challenge the limited geography of places and ideas that dominate the beltway of our discipline. This limited geography and set of ideas is characterized by the law of Geneva, the law of Strasbourg, the law of New York, and the law of Washington, D.C. These are the types of places that our discipline celebrates as producers of the type of international law that in turn becomes the benchmark for the efficacy of international law produced elsewhere. These are also the locations where the bulk of international legal practice is produced and that influences and reinforces our understandings not only of international practice but also of international law more generally.
My second major point, which follows from my first point, is that the Third World is an epistemic site of production and not merely a site of reception for international legal knowledge. Recognizing the Third World as a site of knowledge production and of the practice of international law disrupts the assumptions that international legal knowledge is exclusively produced in the West for consumption and governance of the Third World. Further, that as Third World Approaches to International Law (TWAIL) scholarship argues, the Third World as understood here speaks from a subaltern epistemic location. This means that this Third World approach contests the idea that international law is applicable everywhere and that we should therefore regard it as a view from nowhere. Third World states and TWAIL scholars have contested this non-situated, universal status of international law in a variety of ways for several generations now. TWAIL challenges the view of international law that fails to engage in its complicity in histories of colonization, plunder, and enslavement—whose legacies continue to date. TWAIL also challenges views of the history of international law that consider the centrality of its involvement in slavery, plunder, and, colonization as being benign or simply ignore as inaccurate for ignoring or underpaying international law's central role in historical processes whose legacies in contemporary inequalities and inequalities continue to date.
Ultimately, I argue in favor of ending the insularity of international law characterized by a limited set of locales and ideas. I make the case why we should embrace the practice and scholarship of international law about and from the Third World as integral to our discipline and practice rather than as destabilizing, irrelevant, and different. By taking this scholarship and practice more seriously, we can both demarginalize this Third World input into international law and learn from the ways that it provides distinctive visions of international law.
Part One: International Law's Limited Geography of Places and Ideas
In this part of the lecture, I challenge the limited geography of places and ideas that dominate the beltway of our discipline in both our scholarship and practice. There is now ample empirical evidence that our textbooks are more likely to be filled with cases and examples from the international law produced in places like Geneva, New York, and Washington, D.C. Our scholarship and practice privileges certain locations while excluding and rendering other locations and their international legal activities invisible. My argument is not that there is zero attention to international legal work and scholarship produced in locations that do not carry the prestige our discipline associates with locales like Geneva, New York, Washington DC, Paris, London, and The HagueFootnote 1 that are considered key international law locales.Footnote 2
Rather, my point is that there is often too little, if anything at all, in our casebooks and in our practice about the international law produced in places like Arusha, Tanzania. In addition to being home to two international courts at the moment, the East African Court of Justice and the African Court on Human and Peoples’ Rights, Arusha is also home to several very active international legal organizations, including the East African Law Society and the Pan-African Lawyers Union to name a few. My claim is that the international law produced here ought to receive our attention as much as the international law produced in the global capitals of international law.Footnote 3 As Anna Spain Bradley has argued in another context, our approaches to international law should not continue to be “descriptively omissive” of actors and ideas outside the global capitals of international law.Footnote 4
In some ongoing research, for example, I found that in the fifty-five contentious cases completed in the International Court of Justice (ICJ) between 1998 and 2019, only four non–Organisation for Economic Co-operation and Development (OECD) law firmsFootnote 5—by which I mean law firms based outside the West—appeared before the Court.Footnote 6 By contrast, a total of thirty-two law firms/associations from OECD countries appeared before the Court. This is especially striking because fifty of the parties in those fifty-five contentious cases were non-OECD states. That means that non-OECD states gave instructions one hundred times in that time period and in only four cases did they give instructions to non-OECD law firms. Even further, three of the non-OECD law firms appeared together with law firms from OECD countries. This imbalance in the representation of non-OECD states by OECD law firms in my view indicates that the practice of international law entrenches the dominance of practitioners and law firms from OECD countries arguably in the court that should be the most international court of them all.
The Registrar of the East African Court of Justice recently shared with me the nearly two hundred names of the practitioners that have appeared or that appear regularly before the East African Court of Justice since it started operations in 2005.Footnote 7 All of the names of the practitioners there were unsurprisingly from the East African region. It is quite clear from the names I received that practitioners in OECD states do not practice before international courts in places like Arusha and neither do those who practice in places like Arusha practice in the courts based in the global capitals of international law, like in the ICJ, as some of my ongoing empirical research shows.Footnote 8
The fact that the practicing bars in places like The Hague, rather than in places like Arusha, are the places we look up to understand international law, has an uncanny continuation of the dominance of former colonial metropolitan centers over subregional and regional courts in Africa, and the non-West in general, in the production of international legal knowledge that our discipline celebrates as the benchmark.
Now just to be clear, the East African Court of Justice and the African Court on Human and Peoples’ Rights, which both became functional in 2006, have decided important cases and I am sure many of you can readily name some of those cases. That is also true of the International Criminal Tribunal for Rwanda (ICTR), which until December 2015 was based in Arusha and whose functions have been continued in The Hague under the name the International Residual Mechanism for Criminal Tribunals (IRMCT).Footnote 9 I also know that there is increasing attention to these African courts in journals, books, and blogs. So let me be clear—my point is not that the decisions of these courts are a largely unknown quantity, that they are unimportant, or that they are irrelevant because only practitioners from where they are based practice before them. Far from it.
Rather, my point is that the case law that dominates our discipline in terms of illustrative cases in our case books and citations we make to assert important international legal principles in litigation come less from places like the international courts in Arusha, Tanzania. Yet, the international law produced in places like Arusha is hiding in plain sight! Further and more crucially, the international law work produced in places like Arusha is not regarded as a source of important theoretical innovations in international law. My point, therefore, is that the international law produced in places like Arusha is marginalized doctrinally and theoretically, as Anthea Roberts's recent book confirms.Footnote 10
Scholars studying the African human rights system like Rachel Murray, Obiora Okafor, Cristof Heyns and Magnus Killander,Footnote 11 and Solomon Ebobroah,Footnote 12 to name a few, have noted the too-often ready dismissal and neglect of African institutions because they are considered to be outside of the “ruling” or “dominant Western and European States.”Footnote 13
On the scholarship front, Rachel Murray, who has authoritatively studied the international human rights system in Africa from its beginning, notes that international lawyers have for the most part relegated Africa's international human rights system to the wayside. Professor Murray argues this is because these international lawyers who she writes about regard the African human rights system as having “less value” than its European and Western regional counterparts.Footnote 14 Murray argues that scholarship on the African human rights system often depicts it as an example of “what not to do.”Footnote 15 She notes that many textbooks and casebooks fail to “concentrate upon the progressions and developments from the African system, equating its comparatively young age with inexperience, ineffectiveness and irrelevance.”Footnote 16
Murray, who for the record as far as I can tell, is not African, further notes that the “international literature on human rights and international institutions often do not cite African institutions’ case law or activities as examples or suggestions of best practice or indicators of the development of international human rights law.”Footnote 17 She notes that the assumption in the literature is that “the African system is behind in its approach, is still learning and, conversely, that the European system is transferable and applicable in a variety of situations.”Footnote 18 She recommends overcoming this view of seeing the African human rights system “as a threat to human rights,”Footnote 19 or, rather, as ineffective and irrelevant.Footnote 20 After outlining the contributions and “significant impact” of the African human rights system, Murray concludes that failing to take into account these impacts, by citing “seriously the rulings of these institutions, attention is drawn to them and some degree of respect may be accorded to them without losing sight of criticisms.”Footnote 21
It is notable that Rachel Murray was writing in 2006 when she observed the obscurity of the African human rights system. Needless to say, Professor Murray is not alone in regarding the African human rights system as a positive example of human rights law and international adjudication. It is notable that Professor Murray's response to the criticisms of Africa's then very nascent human rights system were observed in 2006. This is because 2006 was the same year that the International Law Commission prepared its report on fragmentation of international law.Footnote 22 That report did not make reference to any of Africa's still fledgling international courts—Africa is mentioned less than ten times, mostly in reference to International Court of Justice decisions rather than Africa's own courts, regimes, and practices of international law. By contrast, Europe is mentioned over 170 times with a whole subsection devoted to the European Court of Human Rights on the question of systemic integration. Asia appears exactly once in the main text. The six references to Asia are primarily cases on international arbitration.
Writing in 2019, Adamantia RachovitsaFootnote 23 comes largely to the same conclusions as Rachel Murray.Footnote 24 Adamantia Rachovitsa discusses a stream of scholarship that argues that the African Court on Human and Peoples’ Rights threatens jurisprudential chaos.Footnote 25 One of the causes of such jurisprudential chaos was that the court exercises too vast a jurisdiction over violations not only of regional, but also of subregional and global human rights treaties. Particular anxiety is expressed in this literature about the court expanding its scope of focus beyond the interpretation and application of the African Charter on Human and Peoples’ Rights to incorporate United Nations human rights treaties. So why should scholars be concerned that the African Court on Human and Peoples’ Rights can interpret, apply, and declare violations of UN human rights treaties? Should the African court's jurisdiction be limited to the African Charter on Human and Peoples’ Rights and only African treaties? Would the African Court by applying and interpreting UN human rights treaties be undercutting or promoting the universality of international law? What role if any should regional courts like the African Court on Human and Peoples’ Rights play, if at all, on the development of international law?
Those who argue that “different interpretations of similar or identical rules of international law can undermine the general integrity of international law, and the overall consistency of international law”Footnote 26 overemphasize the risks of divergence from global norms. This in turn overlooks how courts like the African Court on Human and Peoples’ Rights actively participate in the development of international law.Footnote 27
This emphasis on the risks posed by the African human rights system to what are regarded as the proper, mainstream, and successful models of regional human rights adjudication means courts like the African Court on Human and Peoples’ Rights are regarded as subordinate rather than equal participants in the development of international law. Such views presuppose non-Western international courts are or ought to be passive junior imitators of their Western counterparts and as such that they have no role in producing but only in receiving international law. Such a view that denigrates the role of non-Western international courts is simply mistaken. This mistaken view privileges both the UN and European human rights systems and presumes that the African system should be dependent on these systems.Footnote 28
These critiques of the African Court on Human and Peoples’ Rights are also a reflection of the dominance of how research agendas from and for a Western audience characterize non-Western international legal engagements. These non-Western legal engagements are often seen to be falling short, to be inadequate because they do not correspond to the benchmark set by the theoretical needs of and questions set in the western academy. This leaves little scope for scholarship outside these well-established systems of scholarly knowledge circulation. These critiques assume that the African Court has to mimic its Western counterparts—including in ensuring nothing less than the Queen's English in their judgments and rulings.Footnote 29 (Ignoring of course the importance of the jurisprudence of the African Court especially for democratization and not merely for advancing human rights struggles defined from a narrow Western-centric perspective.Footnote 30) My point here is not in favor of recognizing the voice of the others of international law, but rather to actively resist knowledge production systems that silence them and their engagements with international law. In short, I take issue with critiques that impose an extra premium of justification onto ideas that come from outside the mainstream European and American dominated international legal community—both in the academy but also in the world of the practice of international law.
Let me give you the example of how and why the East African Court of Justice, which has redeployed from its initial design as an international trade court to become a human rights and rule of law court, serves as an example for international law elsewhere.Footnote 31 This redeployment with its attendant risks suggests that Africa's international courts will not always replicate the European model upon which they are based. In other words, this redeployment from their original mandates to new aims shows the capability of these newer international courts to evolve in ways that could be instructive for international courts elsewhere as I will illustrate momentarily. Before doing so, let me illustrate how this redeployment of trade courts to become human rights and environmental courts happened.
In East, West, and Southern Africa, the respective subregional courts—the East African Court of Justice, the Economic Community of West African Community Court of Justice, and the Southern Africa Community Development Tribunal—were initially designed without explicit jurisdiction over human rights.Footnote 32 In West Africa, explicit jurisdiction over human rights was subsequently conferred by treaty. That was not the case in East and Southern Africa. In East Africa, the relevant treaty provided that jurisdiction over human rights would be given at a future date. However, the East African Court of Justice did not wait for that conferral of jurisdiction. Instead, it established a cause of action for violations of human rights. According to the court, a case that raises a question of whether or not human rights protections enumerated under the founding treaty of the East African Community could be decided under the court's jurisdiction to interpret and apply East Africa Community treaties.Footnote 33
You may say that these interpretive moves are quite familiar and that they pose risks for these courts. You would be right.Footnote 34 What is significant though is not whether or not they imitate older courts and in particular the European ones on which they are modeled. Rather, their redeployment from trade to human rights and environmental courts is indicative of an institutional flexibility that has not nearly been possible in international courts elsewhere. By defying the distinct compartmentalization of trade and human rights courts, Africa's international courts have broken the post-World War II distinction of separate courts for trade, on the one hand, and for human rights, on the other. Perhaps, there are lessons for other international courts here.Footnote 35
The environmental cases before Africa's international courts also tell us something important about how Third World scholars and states have taken on environmental causes as integral to international law—rather than requiring the establishment of a specialized environmental tribunal.Footnote 36 The major feature of this judicial environmentalism is the manner in which Africa's international courts have embraced the principle of systemic integration, which is promoting coherence within a fragmented system of international law rules.Footnote 37 In effect, these courts apply and interpret rules of international law outside their immediate subregional treaty system.Footnote 38 The best example here is the East Africa Court of Justice's First Instance Division Serengeti decision in which the Court stopped the government of Tanzania from building a road through a UN Educational, Scientific and Cultural Organization (UNESCO) world heritage site.Footnote 39
It is not surprising therefore that in West Africa, international lawyers have brought environmental cases to the Economic Community of West African States (ECOWAS) Court of Justice based in Abuja, Nigeria. This has been replicated in East Africa as well as in the Inter-American Court of Human Rights.Footnote 40 Notably, the Inter-American Court of Human Rights has used the principle of indivisibility and interdependence of social, economic, and cultural rights, on the one hand, and civil and political rights, on the other, to make the latter set of rights justiciable to environmental rights.Footnote 41 This approach of seeing the environment as an integral part of the international legal framework rather than treating the environment as a specialized or self-contained regime disconnected from the rest of international law is an important reframing and insight especially in light of climate crisis concerns.Footnote 42
In fact, TWAIL scholars from R.P. AnandFootnote 43 to Karin MickelsonFootnote 44 to Usha Natarajan,Footnote 45 to name a few, have long before the current concern about the climate crisis argued in favor of averting environmental catastrophes that have faced the Global South with urgency. They argued these catastrophes cannot be separated from other challenges that are equally as serious and as devastating.Footnote 46 In doing so, these scholars questioned the conventional understanding of international environmental law as being driven primarily by concerns for the environment (primarily on the part of the North) and having to respond to concerns about development (primarily on the part of the South). As Karin Mickelson has argued, we should not delude ourselves into “thinking that . . . ecological integrity, basic human needs, and human rights can be meaningfully dealt with in isolation from each other.”Footnote 47 She also traced the colonial legacies of international environmental law and unearthed its partial narratives about non-European peoples damaging and despoiling the environment.Footnote 48 She pushed back against environmental accounts that promoted a view of rare habitats and rich biodiversity resources as worthy of protection because only Western states and environmental groups sought to do so. That is why it is impressive to see lawyers in West Africa challenging the boundaries of who can bear responsibility for environmental damage by bringing cases in the ECOWAS Community Court of Justice against multinational corporations,Footnote 49 even though the states have defined the jurisdiction of that court to exclude suit against private actors.Footnote 50 The bold vision of international law that should succeed the current one should break down these boundaries that create accountability gaps.Footnote 51
Let me use another example to illustrate the invisibility of international legal work in Africa. This is the important role played by one of the most senior international legal jurists who also happens to hail from Africa, Dr. (Navanethem) Navi Pillay. She was one of the judges who helped to lay the groundwork for functioning of the International Criminal Tribunal for Rwanda from its infancy. Less remembered though is the central role she played in nudging the prosecution to amend its indictment in the Akayesu case to include crimes of sexual violence.Footnote 52
This account of her role is given by the current President of the International Criminal Court, Chile Eboe-Osuji. Judge Eboe-Osuji recalls that when he worked in the Office of the Prosecutor of the ICTR, it was Judge Pillay who asked the prosecution in the trial of that case what the judges were expected “to do with the evidence of sexual violence, which had been led in the case without a charge relating to sexual violence.”Footnote 53 This account is confirmed by Erik Mose, who was the President of the ICTR at the time of the Akayesu decision.Footnote 54 As Judge Chile Eboe-Osuji remembers, “it is fair to say that without Navi Pillay promoting the question, the indictment in the Akayesu case may never have been made to plead the charge of sexual violence.”Footnote 55 According to Judge Chile Eboe-Osuji, the Akayesu case, which is “one of the most inspirational nuggets of jurisprudence in modern international law,”Footnote 56 would not have been possible if Dr. Navi Pillay had not helped clear the path to that decision. Yet as we all know of Dr. Pillay, she was not one to “suffer credit to be given to her alone for the Akayesu reasoning on sexual violence as an act of genocide.”Footnote 57 Indeed there were two other judges on that bench and there were civil society groups involved in seeking to have gender offenses be prosecuted as well.Footnote 58 As we all know, that judgment inspired “much legal writing and further judicial reasoning.”Footnote 59
This example further illustrates how international courts based in Africa can be thought of as copartners in an equal role as other international courts in the development of international law, rather than being in a hierarchical relationship to those based elsewhere. This example also shows the types of important, if not pioneering, doctrinal developments that have grown out of international courts in Africa.
If I may go back to Arusha one more time. In a recent book, Affective Justice: The International Criminal Court and the Pan-Africanist Pushback, Kamari Maxine ClarkeFootnote 60 chronicles the work of the largest international lawyers society in Africa, the Pan-African Lawyers Association, (PALU). Professor Clarke discusses the role of the Pan-African Lawyers Union proposals to expand the criminal jurisdiction of a future African Court of Justice and Human Rights in the proposed Malabo Protocol. She concludes that the vision of international criminal justice embodied in the proposed Malabo Protocol seeks to “redefine the nature of violence in Africa as embedded in multiple forces of plunder and economic inequalities and multiple actors ranging from individual perpetrators to leaders of multinational corporations and terrorist gang networks.”Footnote 61 Even with the expanded set of international crimes that would come under the jurisdiction of the African court if the Malabo Protocol received the requisite ratifications, Professor Clarke argues there is nothing substantively different about this court because it is “envisioned as operating within a legal realm that is quite similar to other courts elsewhere.”Footnote 62
However, what is even more compelling about Professor Clarke's account is that it is not only framed at the level of the law and doctrine of international criminal law, or to use her words “technocratic articulations of objective certainty.”Footnote 63 Rather, her ethnographic account emphasizes why we should pay attention to “feelings about inequality and injustice that shape how international law is perceived and how justice is experienced affectively.”Footnote 64 By affective justice she does not mean to minimize the important legal controversies such as those relating to immunity from prosecution that tend to dominate discussions of international criminal justice in Africa. Instead, she points to the productive potential of paying attention to the “feelings of inequality [such as the view that the ICC has targeted only African or poor countries] and racial oppression that remain illegible before the law.”Footnote 65 It is this sense of affective justice that she argues has become the motive force for the pan-Africanist backlash against the International Criminal Court. For Professor Clarke, therefore, international law operates “within particular affective realms rooted in histories, memories and experiences.”Footnote 66 From that perspective, our understanding of international justice will be diminished if we only focused on whether or not African states were complying with rules of international criminal law to the exclusion of “other logics.”Footnote 67 For Professor Clarke, these other logics that are often excluded in the law and doctrine of international criminal law include what she calls deep-seated histories of injustice, such as the absence of international institutional intervention into colonialism and apartheid, and the inequalities in the way in which international criminal justice is administered today.Footnote 68
The point here is that to understand more fully what is done in the name of international law and its goals, such as the promotion of peace and the protection of rights, it is important to go beyond merely reflecting on what the rules of international law are and how they are applied. One way of doing so, as Professor Kamari Clarke challenges us, is that we should not always assume the international legal rules and institutions are necessarily impartial, objective, and neutral. Instead, she challenges us to also pay attention to how these rules and institutions have complicated historical legacies and sometimes even destructive consequences in the ways in which they are applied. As Anne Orford has argued, “it is timely to explore other—no less scientific—methodologies that might (that do) shape the work of professional legal scholars and our relation to the many realities that we seek to study and the many institutions and publics to which we are called to account.”Footnote 69
Perhaps one lesson we can draw here is that international law scholarship ought to have a place that foregrounds thick descriptive accounts and local knowledge(s) over approaches that proceed from abstract models or universal assumptions.Footnote 70 After all, I believe the goal is that our discipline has to go beyond approaches, such as those characterized by an exclusive black letter law emphasis, that do not adequately capture the type of epistemic injustices that could result from the failure to adequately capture alternative views or, for my purposes, the experience and worldviews of non-Western peoples. It is the privileging and centrality given to certain locales and ideas in the production of very particular types of (governing) international law—against which other less visible locales and ideas are to be measured—that is the problem.
TWAIL scholars and Third World states contest these very particular types of governing international law for being promoted as applicable everywhere as if they were actually views from nowhere.Footnote 71 Third World states and TWAIL scholars have contested this non-situated, universal status of international law in a variety of ways.Footnote 72 For TWAIL scholars, international law cannot be taught or studied as a classic and timeless discipline. Unearthing how rules of international law have and continue to be deeply implicated in justifying the oppression of non-European peoples from slavery to colonialism and beyond is the backdrop of one of TWAIL's important agenda of exposing and illustrating how rules and doctrines of international law played and continue to play a role in normalizing and justifying repressive and racist outcomes and exploring whether the promises of overcoming those adverse outcomes are possible within the strictures of international legal guarantees, such as self-determination and human rights.Footnote 73 I will return to this theme of epistemic locations in my discussion in Part II.
Part Two: TWAIL as a Subaltern Epistemic Location
My second major point in this lecture is that TWAIL speaks from a subaltern epistemic location. This means that TWAIL not only questions international law's presumed universality,Footnote 74 but that it theorizes and views international law from the perspective of the Third World.Footnote 75
The reference to the Third World in TWAIL does not refer to a geographical space, or one that is historically fixed in time or that supposedly represents a true essence of the Third World. Neither is it a view based on Third World statehood or Third World nationalism—after all, many Third World scholars such as Makau Mutua have shown how colonially created statehood replicates many of the legacies of colonial rule.Footnote 76 To be clear, therefore, the use of the term “Third World” is an anti-subordinating term whose aim or goal is to disrupt and hopefully dismantle the hierarchies on which unequal production about the knowledge of international law is produced and practiced. It provides the analytical tools to examine whether there are unequal economic, political, military, or even racist underpinnings of our various rules, practices, and scholarship on and of international law and discusses and debates what can be done to overcome these inequalities.
The point about alternative epistemic locations that is made possible by the anti-subordination perspective that I have just alluded to, is that it counteracts dominant accounts of international law (whether, for example, European, American, or otherwise). This perspective also challenges the hierarchical and unequal manner in which rules of international law from some parts of the world become predominant while others are regarded as subordinate or irrelevant. This part of the lecture discusses examples of Third World scholarship in international law that respond to the epistemic silencing of the Third World.
Take the example of James Sakej Youngblood Henderson's scholarship countering Eurocentric representations of indigenous inadequacy in international law. Henderson advocates for indigenous humanities not merely as an art of self-affirmation, but as an alternative epistemological point of departure for international law.Footnote 77 A point of departure that would overcome what he calls the “cognitive annihilation” of indigenous heritages and worldviews.Footnote 78 Unlike the written rules and doctrines of international law, indigenous lawyers, he argues, “are reintroducing ancient visions of human relationships . . . as discursive remedies to our suffering, rather than quibbling word games and conceptual riddles as in Eurocentrism. The remedies [he argues] are in our vision, consciousness, and feelings. They remain in the places and ceremonies that our Creator placed them; it is for us to continually rediscover and renew these teachings.”Footnote 79
Similarly, Adrien Wing has argued that there are “spirit injuries” that arise from a combination of physical, emotional, and spiritual harms of discrimination and oppression that arise in the context of self-determination struggles to overcome racist, alien, or colonial rule.Footnote 80 Spirit injuries may occur on both a personal level, leading to the “slow death of the psyche, the soul, and the personal” and on a group level, leading to the “devaluation and destruction of an entire culture.”Footnote 81 Wing popularized this concept of spirit injury which is “broadly applicable . . . to sociological, anthropological, and political conceptions of violence.”Footnote 82 Such injuries that go beyond the doctrinal categories of international law indicate the different epistemic locations of international law.
TWAIL feminist scholarship also illustrates what it means to proceed from an alternative epistemic location by foregrounding race and gender. TWAIL feminists do this in part by exposing overlapping and interdependent forms of gender subordination and discrimination as a central point of inquiry. In addition, in response to U.S.-style white feminism and its claims of “universality,” early TWAIL feminist scholarship emphasized the commonality of women's experiences could not serve as a template for feminisms in the Third World.Footnote 83 Critical Race Feminists, led by scholars like Adrien Wing,Footnote 84 argue that the identities of women of color are multiplicative, in the sense that they possess multiple consciousness, based on their intersectional identities.Footnote 85 They also argue against feminist analysis that unproblematically sweep women from many parts of the world into their analysis as simplistic and inaccurate.Footnote 86 Like Critical Race Theorists, Critical Race Feminists examine women's experiences through race and gender “lenses” simultaneously rather than only through one of them.Footnote 87 Indeed, TWAIL feminist scholars quite easily draw on the multiple intersections of oppression that women are subjected to. In questioning white feminism's universalist claims, TWAIL feminists draw on the multiple experiences of women of color, including black, queer, transgender, lesbian, as well as their anti-colonial, anti-imperialist, and anti-capitalist stances.Footnote 88
Similarly, Henry Richardson III's important scholarship challenges how international legal history scrubbed clean the history of racial oppression and “massiveness of the slave system since before the beginning of the [American] Republic” and how that system and the accompanying history sought to show how African Americans lacked “talent and public competence . . . [and] praiseworthy personal attributes.”Footnote 89 Henry J. Richardson III's book, The Origins of African American Interests in International Law (2008), is an excellent example of international law scholarship that recovers the epistemic silencing of African Americans in international law. In the book, Professor Richardson sought to uncover “the origins of African American's own jurisprudence about international law” in the seventeenth to nineteenth centuries. While Antony Anghie's work examines non-European encounters with international law, Richardson examines how international law sees African Americans from the perspective of “European and other militarily and economically prominent sovereigns and peoples.”Footnote 90
Yet notwithstanding being critical of the accounts of international legal history that exclude how international law was implicated in the subordination of non-Europeans for Anghie and in the slavery of African Americans for Richardson, they do not dismiss international law as hopelessly unhelpful for these subordinated peoples. In addition, notwithstanding their critique that international law mirrors our Eurocentric tools of knowledge production and that the very nature of international legal scholarship is dominated by Western(ized) analytic tools, TWAIL scholars like Richardson and Anghie are still hopeful that international law can make a difference.
Quite notably, TWAIL scholars do not only emphasize an international law comprising merely of positive rules. For example, it is especially striking that Richardson's book powerfully argues that in the seventeenth to nineteenth centuries—during slavery—what he refers to as international law in that time period was “one candidate among several sources of [outside] norms”Footnote 91 that African Americans “desired to . . . be locally authoritative” as they sought their freedom from slavery and white racism. They saw such outside law as necessary in “confirming their right to be free of slavery and [to be] treated with dignity” because the local law that governed them denied their “rights and humanity.” This appeal to outside law, Richardson argues, was part of Black resistance against “white slavery, oppression and slave culture.” According to Richardson, in the period between 1790 to 1910:
Blacks needed the State to be judged and [reined] in under international law to prevent it from continuing its membership in the international slave system, and to force it to fulfill its moral obligations to revamp its domestic law so as to eliminate domestic racism against blacks and to create the legal and material conditions for Black freedom and equality.Footnote 92
African Americans therefore sought what Richardson called “a new American interpretation of international law.”Footnote 93
Similarly, although Anthony Anghie's 2004 classic, Imperialism, Sovereignty and the Making of International Law, offers an unparalleled analysis of the foundational and systemic nature of colonialism and its afterlife—imperialism—from the natural law period through the era of positivism to the era of pragmatism and to the end of the cold war, it is nevertheless hopeful that “international law can be transformed into a means by which the marginalized may be empowered. In short, that law can play its ideal role in limiting and resisting power.”Footnote 94
You see this if you read Alejandro Alvarez,Footnote 95 R.P. Anand,Footnote 96 Tieja Wang,Footnote 97 Onuma Yasuki,Footnote 98 Georges Abi-Saab,Footnote 99 Mohammed Bedjaoui,Footnote 100 Taslim O. Elias,Footnote 101 Buphinder Chimni,Footnote 102 Upendra Baxi,Footnote 103 Christopher Weeramantry,Footnote 104 and Kamal Hosain, among others.Footnote 105 What is striking about this group of Third World scholars is that they never sought to fit conventional tropes of the discipline. These international lawyers spread throughout the Third World in Asia, Africa, the Middle East, Latin America, and beyond and engaged in what Vasuki Nesiah has described as rebel imagination of the plural ways in which the promise international law could be reimagined.Footnote 106 These isolated rebel imaginations are what today has crystallized into TWAIL. This earlier scholarship, though produced in disparate continents and published in a wide-ranging set of places, is therefore far better understood as a part of a large protracted and ongoing struggle against the international law they were taught—and that they sought to remake so that it could become more international than they had received it.
These scholars and practitioners of international law were at the very core of the resistance to and agitation against alien, racist, and colonial rule as countries then under colonial rule sought self-determination and independence from European powers.Footnote 107 Perhaps the signature quote that exemplifies this attitude is Tieya Wang's when he says:
[a]lthough Third World countries are adamantly opposed to the imperialistic, colonialistic, oppressive and exploitative principles and rules of traditional international law, they do not reject international law itself. . . . The attitude of the Third World towards international law is very clear: it neither accepts nor rejects international law in its entirety.Footnote 108
For TWAIL scholars, therefore, notwithstanding its complicity in the repression and silencing of non-European and other peoples, international law—or at least parts of it—had potential to be rescued from its dark sides. Today's TWAIL scholar activists engage with the promise or dreams that the first generation of TWAILers who were involved in anticolonial resistance and who celebrated the end of formal colonial rule in the era of self-determination. Today, Third World scholars contest the continuities of coloniality that survived decolonization. TWAIL scholars expose or unmask the Eurocentric leanings and underpinnings of international law after decolonization and how these leanings and underpinnings are very similar to the ways in which European international law constructed colonial difference between the colonized and colonizers. They expose the partiality of the post-World War II American-dominated multilateral order. By exposing the centrality and power of the United States in the post-World War II order, TWAIL scholars contested the framings of the post-World War II order along the liberal/realist framings of the period.
TWAIL scholars do not simply reject approaches to international law that have silencing effects or that preclude asking certain questions or which disallows or denigrates scholarship, views, and practice from “subaltern epistemic locations.”Footnote 109 Rather, Third World scholars have offered and continue to offer how international law can be built or rebuilt. In this sense, like Siba Grovogui, I believe what is at stake is not an issue of inclusion or exclusion of non-Western peoples or states within Western international law. Rather, it involves considerations of the very terms of the constitutional order of “post-Enlightenment social knowledge, its structures of thought, and related constructions of political subjectivity”Footnote 110 of which international law is a central part.
My overriding claim here therefore is as follows: Third World scholars have always been simultaneously critical of and also clearly enamored by international law while offering how alternative or non-Western ideals could introduce new meanings, standards, rules, and norms of international law.
TWAIL scholars are therefore always conscious that their scholarship and practice is trapped within problematic structures of knowledge that represent partial interests and priorities as they struggle to move them beyond those problematic foundations. As Diane Otto posed two decades ago, the question for critical scholars like TWAILers is “whether it is possible to imagine processes whereby non-dominant, non-elite, subaltern individuals and groupings could participate as subjects of international law”?Footnote 111 This is an enduring theme in TWAIL scholarship and practice.
A recent book edited by Michael Fakhri, Vasuki Nesiah, and Luis Eslava on the legacies of the Bandung conference of 1955 dares to imagine such a non-dominant, non-elite, subaltern perspective by authoritatively retelling the history of international law by placing the non-Western world at the center, thereby decentering the Westphalian myth. In doing so, the book critically engages the Third World's resistance to the Global North by looking beyond Europe and North America as the “organizing geopolitical and cultural fulcrum of the world.”Footnote 112 The book uses the Bandung conference of 1955 as a point of departure to examine how it created “new anti-colonial possibilities.”Footnote 113 It is this sense of possibility that Third World scholars, peoples, and states have continued to invest in international law, notwithstanding its imperial past.
Retelling international law from such a view of the Third World focuses on how it matters for the majority of the people of the world—people often subordinated in multiple ways—by their states in conjunction with international institutions, global capital, and so on.Footnote 114 TWAIL scholars are therefore able to simultaneously challenge views of colonialism being a thing of the past that our discipline sometimes too quickly assumes by exposing the uncanny colonial continuations in the present, while at the same time, seeking reform of international law and seeing the utility of using it to promote change.
To counteract this ever-present challenge of retrenchment and backward movement, TWAIL scholars like Balakrishnan Rajagopal focus our attention to thinking of international law from below, focusing on those most marginalized particularly in development policies.Footnote 115 Rajagopal argues that, by and large, “international law's story telling about its own formation remains a highly elitist one that entirely overlooks the role played by non-Western, non-elitist individuals and groups.”Footnote 116 For Rajagopal, the process of imposing development in the Third World is a major cause of poverty, misery, and violence.
Think about it: a large percentage of people in the world do not live in urban areas—they live in rural areas and are likely to be engaged in agriculture. Yet the predominant regimes of global trade and investment are not structured in ways that promote and uplift the interests of these rural farmers. Today we are more likely to hear about the fate of farmers in Europe and North America who are heavily subsidized (when we are not hearing the interests of industry), rather than those in developing areas whose fates are intricately linked to the heavy subsidization of their counterparts in the Global North. One only has to remember the heavy subsidization of cotton farming in the United States that the Dispute Settlement Body of the World Trade Organization (WTO) found inconsistent with the United States’ WTO obligations.Footnote 117 Those subsidies, the WTO found, had created something greater than the Great Depression in the cotton market in ways that made it impossible for farmers in Africa and Latin America who are more efficient/low cost cotton producers to benefit from selling their cotton on the global market. This is just one example of the structural conditions that disadvantage those who live in the bottom billion. Further, it is now well established as an empirical matter that the “flow of money from rich countries to poor countries pales in comparison to the flow that runs in the other direction.”Footnote 118 This means, as Jason Hickel argues, that: “The usual development narrative has it backwards. Aid is effectively flowing in reverse. Rich countries aren't developing poor countries; poor countries are developing rich ones.”Footnote 119
Rules of international law entrench these structural inequalities by privileging the rights of corporate plant breeders in agricultural markets—in ways that undermine the rights and the ability of small-scale farmers to collect, store, and benefit from their own innovations and seeds. Hence, though a large number of people in the world today live in rural areas and depend on agriculture for their livelihoods, the predominant rules of our discipline, especially those relating to intellectual property rights, are heavily weighted against the most needy and vulnerable farmers. As TWAIL scholars from Michael FakhriFootnote 120 to Titilayo AdebolaFootnote 121 write, this bias in favor of big agriculture and plant breeders has attendant consequences on the livelihoods of farmers in the Global South, including their right to food. The promise of international law is highlighting those least off like the small-scale farmers, many of them often women.
This approach turns the focus of our discipline on its head, so that instead of focusing only on the formal sources of our discipline, such as treaties, custom, judicial opinions, and state practice, we can also focus on ordinary people and social movements not only in resisting rules made from above, but in forging new ones that reflect their concerns.
Conclusion
I started this lecture by highlighting why we should take the international law in places like Arusha more seriously. As I end my lecture, I want to emphasize three points: First, that there is a remarkable energy and indeed what I can call a renaissance of Third World scholarship in international law.Footnote 122 For example, a bibliography of TWAIL scholarship that I have prepared, and that is available as a weblink to this lecture as an appendix, shows a steady increase in scholarly production from 1996 to 2019. This bibliography includes articles, book chapters, and essays published not only on databases available in the Europe and North America, but also in journals and books that do not readily show up in the beltway databases of our discipline.Footnote 123 When I examined all these publications on a graph, I saw a steady increase in the scholarly production that associated itself with Third World Approaches beginning in 1998 through to 2012, and since then I can report that there has been a bigger and sustained upward trend.
This nearly six-hundred-item bibliography that spans both international law and international economic law is great for anyone who would like to diversify their syllabus and curriculum; it can add to the citations in briefs for cases, and in scholarly and other writing. If you are interested in digressing from the Western canon that excludes non-Western international law, or in learning from some of the scholarship that is actively engaging in decentering knowledge and knowledge productionFootnote 124 in the sense that I have noted in this lecture, there is a growing scholarship you can now readily refer to.
One of many contributions that this TWAIL scholarship has made is directing our attention to reexamine the history.Footnote 125 As Bhupinder Chimni powerfully and carefully traces for us in the latest edition of his book, International Law and World Order: A Critique of Contemporary Approaches,Footnote 126 this turn to history in our discipline owes no small part to TWAIL scholars.
Second, I want to note that TWAIL scholars practice what they preach. Let me illustrate this in just one area that has featured in this lecture—human rights. Tendayi Achiume is the UN Special Rapporteur on Contemporary Forms of Racism, Racial Discrimination, Xenophobia and Related Intolerance. Obiora Okafor, another TWAILer, is the UN Independent Expert on Human Rights and International Solidarity and a former Chairperson of the United Nations Human Rights Council Advisory Committee. Balakrishnan Rajagopal is new UN Special Rapporteur on the Right to Housing and Michael Fakhri is the new UN Special Rapporteur on the Right to Food. Clearly, TWAIL is not cheap talk. TWAIL scholars are active in the practice of international law.
This does not of course mean that TWAIL does not have its blind spots, as every approach or method has some. This third point is particularly important at this moment in the history of the United States and indeed of the world. I cannot emphasize enough why embracing the analytical tools of Third World Approaches to International Law and its twin sibling Critical Race Theory would be important for tracing and tracking issues of race and identity not only in domestic law, but also in the imperial histories of our discipline.Footnote 127 After all, we can all agree that issues of race and identity have so far been underemphasized, understudied, and undertheorized in international law and that we can and need to do better, including in this learned society.Footnote 128 A major point of my lecture therefore has been that the promise of international law and in fact a full accounting of our discipline would be incomplete without critical approaches such as Third World Approaches to International Law or Critical Race Theory, particularly if we are interested in a truly international law that goes beyond the usual pathways.
Thank you for your attention and patience and I very much look forward to the response from Professor Fleur Johns.
Supplementary Material
To view supplementary material for this article, please visit https://doi.org/10.1017/amp.2021.87
