The Routledge Companion To Literature And Human Rights

Third World Approaches to International Law (TWAIL)

Barbara Harlow

TWAIL: the punkah puller pushes back

Presently the case was called.

The Court was crowded and of course very hot, and the first person Adela noticed in it was the humblest of all who were present, a person who had no bearing officially upon the trial: the man who pulled the punkah. … Opposite him, also on a platform, sat the little assistant magistrate, cultivated, self-conscious and conscientious. The punka wallah was none of these things; he scarcely knew that he existed and did not understand why the Court was fuller than usual, indeed he did not know that it was fuller than usual, didn’t even know he worked a fan, though he thought he pulled a rope. Something in his aloofness impressed the girl from middle-class England, and rebuked the narrowness of her suffering.

(Forster 1984: 217)

This courtroom scene, central to A Passage to India, E. M. Forster’s celebrated 1924 novel of late British India, testifies dramatically to the arrangements for the administration of colonial justice toward imperialism’s subjects. The unarresting and muted punkah wallah obtrudes, however briefly, as a conspicuous reminder to the allegedly wronged, but more wrongful, Adela, the novel’s heroine on whose behalf the controversial case has been called, of the very “narrowness of her suffering.” The punkah puller, whose discreet reminder in Forster’s narrative of the precariousness of the empire over which the sun never set, is become perhaps a main character in the rewriting of the story of international law at the turn of the twentieth century into the twenty-first century by adherents of TWAIL, or “Third World approaches to international law.” According to one such adherent, prominent Indian legal scholar, B. S. Chimni, in his draft of a TWAIL “manifesto,” the “threat of neocolonialism is haunting the world.” Furthermore, Chimni admonishes, “International law is playing a crucial role in helping to legitimize and sustain the unequal structures and processes that manifest themselves in the growing north-south divide” (2006: 3). For Chimni, and “from the standpoint of TWAIL, it is necessary … to make the story of resistance an integral part of the narration of international law” (2006: 3). What might happen in the courtroom, indeed to the courtroom, that is, were the punkah puller suddenly to push back? “There is,” Chimni goes on, “perhaps a need to experiment with literary and art forms (plays, exhibitions, novels, films) to capture the imagination of those who have just entered the world of international law” (2006: 22). TWAIL might itself be imagined as the story of the punkah wallah who pushed back.

If TWAIL, often described by its contemporary affiliates as a “network,” at times as a “movement,” but never as an “organization,” discovered, one story goes, a critically public initiation at a symposium held at Harvard University’s School of Law in 2000, its precedents and pedigrees have rather longer and deeper historical and genealogical sources. Indeed TWAIL proponents argue importantly that crucial to a Third World critique of prevailing international law (IL) must be an examination of IL’s formative continuities with historiographies of colonialism and attendant imperial practices. Neither Forster’s punkah wallah, in other words, nor even Adela are without their roles in the recasting of that constitutive narrative. As Antony Anghie, legal scholar and another TWAIL partisan, has argued,

Nineteenth century international law permitted the sovereign recourse to force. In addition, it created and sought to enforce distinctions between civilized and uncivilized states with the argument that one set of laws was applicable between civilized states in their mutual dealings but that another set of practices was justified in relation to uncivilized states. Most significantly, within this jurisprudence, uncivilized states were not properly sovereign; as such they lacked rights under international law and could thus be legally attacked and conquered, all in the name of transforming and civilizing them.

(2009: 293)

Bibliographizing TWAIL thus poses particular challenges, and this chapter will instead outline four critical collections that partially chronologize the twenty-first century TWAIL narrative: the Symposium Issue of Harvard International Law Journal (2000); the 2006 special issue of Third World Quarterly on the relevance of international law to the Third World or the Global South (later published as a book entitled International Law and the Third World [2008]); a special issue of the Osgoode Hall Law Journal (2005) on TWAIL after September 11, 2001; and, most recently (2011), another special issue, this time focusing in particular on pressing questions of economic and social rights, of Trade, Law and Development. Third World approaches to international law, in other words, imperative as they might remain, necessarily concatenate continuously in terms of current events and episodic eventualities. TWAIL scholarship furthermore situates contemporary debates over human rights in the history of colonialism, decolonization, and post/neocolonialism.

The Harvard Symposium Issue: or, presently the case was called …

Law professor, Harvard graduate, and regular contributor to TWAIL debates, James Thuo Gathii, introduces the special issue anthologizing the 2000 Harvard Symposium with an essay addressing that historical durée. Gathii, that is, emphasizes international law as both “culturally constitutive and historically contingent,” its distinguishing features relating critically to conflicting “themes of resistance and legitimation” (2000: 265). He is joined in the Symposium Issue’s celebration of the “renewal in interest, research, and publication” in “international law and the developing world” (Gathii 2000: 263) by TWAIL affiliates and aspirants in a discussion of topics that include free market democracy (Chua), gender hierarchy in developing countries (Nyamu), arbitration and the Third World (Shalakany), bilateral investment treaties (Vandevelde), statehood in Africa (Okafor), social movements and international institutions (Rajagopal), and competition law (Fox).

If Shalakany, for example, in a discussion of Libya’s 1971–74 nationalization of its oil concessions, argues that “neither the institutions nor the doctrines [of arbitration] per se are biased for the economic interest of the North” (2000: 452), he does nonetheless affirm by way of tentative conclusion that in fighting for the “rights of Third World countries over their natural resources,” it is imperative to contend with the “condition of international economic dependency” (Shalakany 2000: 456–57). Obiora Okafor, another of TWAIL’s frequent spokespersons, complicates the question of dependency in an examination of the recognition of, and international protection for, minority groups in newly independent African states, criticizing the stratagems of a “repressive nation-building” characteristic of the “international legal ideal of the European-style nation state” (Okafor 2000: 518–20). Rajagopal in turn pursues this same question in his discussion of the potential for social movements in “extra-institutional resistance” to the coercions of international institutions such as those deriving from the mid-twentieth-century contrived Bretton Woods consortium that created the World Bank and the International Monetary Fund (Rajagopal 2000: 535). According to Rajagopal, that is, insisting on the importance to TWAIL of a historical perspective,

the Third World that international institutions deal with now is no longer the Third World of the post-independence period. Indeed, the very meaning of “the Third World” has undergone a radical change since the 1950s and 1960s, when it meant only an agglomeration of newly independent states.

(2000: 533)

If international institutions must respond to the changed – and changing – significance of “Third World,” both the term and its terms of reference, so too must Third World approaches to international law. And how much will that history have been reconfigured by the events of September 11, 2001 and their aftermath?

International law and the Third World: combined, uneven, or incommensurate?

“Reshaping Justice” is the subtitle to the 2008 volume collecting the essays that appeared two years earlier in Third World Quarterly; it continues this precedent-setting inquiry in essays that variously explore both that controversial (is it obsolete or still resonant?) term “Third World” and its shifting terms of reference. Co-edited by Richard Falk, Rajagopal, and Jacqueline Stevens, International Law and the Third World insists, in a telling lexical paraphrase of world systems theorist Immanuel Wallerstein regarding “combined and uneven development” (Wallerstein 1979), on the “uneven and instrumental recognition of human rights and sovereignty” (Falk et al. 2008: 2). In the first of the book’s essays, Upendra Baxi reformulates even more radically that paraphrase in his discussion of the “incommensurable histories and diverse versions of international futures” that relentlessly hallmark the post-Westphalian Third World (Baxi 2008: 10). Antony Anghie further describes that Zeno-esque conundrum of combined and uneven by reiterating the chronologically discrepant consequences of international pasts and presents in order to reiterate and expand on the question of

whether, how and to what extent international law can be used for the purpose of furthering the interests of Third World peoples – protecting them against the excesses of the authoritarian and genocidal state, on the one hand, and advancing their interests in the international sphere on the other … .

(Anghie 2008: 48)

The Third World, however, according to Rajagopal, “has burst out of the seams of the Westphalian structure,” with an energy that evokes the possibility of the punkah puller actively pushing back. “Imagine,” Rajagopal continues almost ominously, “imagine, at the very least, a co-existence of counter-hegemonic international law alongside hegemonic international law” and the ensuing “search for a radical democratic potential in human rights” (Rajagopal 2008: 64). Imagine indeed.

Imagine, as Chimni has advocated, what could transpire when it becomes possible to “capture the imagination of those who have just entered the world of international law” (Chimni 2006: 22). In speculating on such possibilities for “reshaping justice,” Okafor investigates, with particular reference to Africa, the “prospects of international law to: reduce poverty, promote local agency, permit and promote African resistance to non-favorable global rules” (Okafor 2008: 97). Ikechi Mgbeoji in turn indulges in excoriating the “imperial delusions of order and the challenges of human security” (2008: 151–66); whereas Wadie E. Said wonders about decisions over asylum eligibility were these determinations not always already “compromised by an applicant engaging in so-called terrorist activity” (2008: 167). Shifting from issues of human security, Hilal Elver decries the lack of imagination in dealing with the “problems of freshwater scarcity,” since, after all, the “location of water resources … does not always follow political boundaries” (Elver 2008: 182). More disputatiously perhaps, Vasuki Nesiah challenges the “political imagination of projects that have invoked international norms to protest against torture, rein in regime change and reiterate the right to self-determination – all alongside empire” (Nesiah 2008: 214). Remember, Laurie King-Irani then warns, that the “travails of the Palestinian people since 1948 offer a disturbing, though highly instructive narrative, reverse-image view of the contours and limitations – as well as the possibilities – of an international legal order,” titularly raising the foreboding question: “Are we all Palestinians now?” (King-Irani 2008: 220–21). That epochal question is posed once again in TWAIL’s discussion of the impact of 9/11 on the preaching and practice of human rights, north, south, east, and west.

TWAIL after 9/11: unimaginable?

The momentous events of September 11, 2001 (or “9/11” as the occasion has since been ahistorically memorialized) are often decried as “unimaginable,” even as they have been invoked as “unprecedented” and thus enlisted to underwrite a radical break with precedent, both legal and historical, as if the puller’s very punkah had gone disastrously, catastrophically awry. The six essays collected in the special issue of the Osgoode Hall Law Journal (2005), under the rubric “Third World Approaches to International Law after 9/11,” explore, according to editor Okafor, alternative ways of “imagining this ‘post-9/11’ historical moment,” raising the possibility of narrating those less sanctioned, “if more globally valid, stories about international law, global institutions, and international practices” (Okafor 2005: 1). For Okafor, the very putative “newness” of a post-9/11 world must be “systematically challenged” along with the “supposed uniqueness of the global history of the events of 9/11,” an alleged newness and a purported uniqueness that combine to underwrite an unwarranted “myth of U.S. and western innocence” (Okafor 2005: 2) rather than as an ongoing narrative utterly continuous with the “imperial project of control and subjugation over third-world (and other) peoples” (Okafor 2005: 4). The ensuing essays, each with a different emphasis, not only imagine, but historically and historiographically instantiate, what law professor Baxi underscores as the “complexity of periodization” provoked by “9/11” (Baxi 2005: 10).

Baxi focuses his remarks regarding “nomadic multitudes, aggressive incumbents, and the ‘new’ international law” on the laws of war, distinguishing between what he nominally refers to as the “war on terror” and the “war of terror.” More specifically, according to Baxi, it is imperative to draw out the

necessary distinctions between within-state indiscriminate violence targeting non-complicit civilians, justified by “terrorists” as “propaganda by deed,” and enduring state terrorism that inveterately seeks to justify its standardless use of force against “terrorists” … as an aspect of the pursuit of the common good of collective human security.

(Baxi 2005: 19)

These same, if distinctive, historical continuities, vociferously advocated by Baxi, connecting “histories of colonial wars of ‘terror’” with the “inherent racism of modern international law” (Baxi 2005: 24–25) frame as well Antony Anghie’s “historical perspective” on a “war on terror and Iraq.” Anghie’s analysis debunks in particular the Bush administration’s doctrine of “pre-emptive self-defence” for the well-nigh unilateral US 2003 invasion and occupation of Iraq as “essentially imperial in character,” with the consequence that “human rights have been transformed into a vehicle of imperialism [whereby] imperialism presents itself as self-defence” (Anghie 2005: 61–64). Gathii takes up the same argument through a close reading of textual and historical sources treating the recurring issue of preemptive war and the Bush administration rationale that the “prohibition of the use of force ought to be reinterpreted in accordance with the changing global security situation” (2005: 69). According to Gathii’s probing historical imagination, what is at stake is not at all dubious “evidence of emergence of a new rule” but rather an egregious “breach of that rule” (2005: 79).

“The bearded bandit, the outlaw cop, and the naked emperor” serve next to name the rather ferocious dramatis personae in Mgbeoji’s counter-scenario to the nefarious efforts in the post-9/11 world on the part of “powerful states [to] create and remake juridical reality by reconfiguring legal narratives” (Mgbeoji 2005: 106–7), lamenting in the course of the analysis “international law’s preoccupation with the fears of the West” and its hegemonic collusion in the elaboration of a “propagandistic narrative of terrorism” (Mgbeoji 2005: 110–11). For still other narrative options, Karin Mickelson tells instead “three stories about international environmental cooperation,” stories of level playing fields, the repayment of ecological debt, and the making of environmental space, fantastically conjured stories that would, she writes, “help us to imagine a different kind of world” (Mickelson 2005: 170). Okafor concludes the special issue that he edited with his TWAIL colleagues in returning to a reiteration of the collective challenge the post-9/11 “newness” claim as itself a “weapon of mass persuasion” (Okafor 2005: 187). In other words, from a TWAIL perspective – at once historically grounded and imaginatively visionary – “when third-world experiences are not discounted, it becomes clear that the ‘post-9/11’ world is not so significantly new as to justify the sorts of international law reform projects being urged by the United States and its key ‘post-9/11’ allies” (Okafor 2005: 188).

TWAIL, trade, law, and development: new callings for the punkah wallah?

The special issue, only its second (the first having been on international investment law), of the recently established (2010) Indian academic journal, Trade, Law and Development, on TWAIL approaches to what might be considered to count as “economic, social, and cultural rights” (ESCR) in international law, positively emphasizes the approach’s “extreme relevance to the developing world, its lack of a mainstream presence, and the heterogeneous nature of its scholarship” (Sharafudeen 2011: 7). No longer the “crisis” response called for by the 9/11 commentariat in the North, but a more sustained attention to the relation between human rights and development remains imperative. Significantly, then, the issue opens with commentaries by long-standing TWAIL partisans, providing reflective synopses of the movement’s historical peripeties, both over the longue durée and in view of shorter-term perspectives, not least the seemingly perplexing conundrums raised by post-independence predicaments that challenge Third World peoples – and their legal representation. According to B. S. Chimni, author of the earlier TWAIL “manifesto,” in his introduction to this special issue, a publication heralded as evidence of TWAIL’s expansion from hallowed Harvard hallways to an insurgent Global South, one important problem is that “TWAIL scholars are generally reluctant to endorse mechanisms of control in home state jurisdictions because these may be manipulated to justify unilateral measures that harm the interests of third world peoples” (Chimni 2011: 25). If TWAIL I advocates, the so-called first generation, championed principles of national self-determination for the decolonizing world, what happens when Third World dictatorial or autocratic regimes are, often opportunistically, and in the name of a residual, but still convenient, Westphalian paradigm of national sovereignty, spared the juridical sanctions that would accrue to unwonted abuses of their own, often minority, populations? Distinguishing then between two succeeding generations of TWAIL advocates, Mohsen al Attar and Rebekah Thompson argue that “as a number of brutal and authoritarian regimes arose to fill the power vacuum left by former colonial masters, a new approach, TWAIL II, adopted a ‘philosophy of suspicion’ to move conceptions of international law beyond ‘its relations of power and subordination.’ For this reason,” al Attar and Thompson go on, “TWAIL II focuses on social movements and democratic participation of citizens” (2011: 68).

While in their article on “multi-level democratisation of international law-making” al Attar and Thompson turn their attention to questions of the concupiscent linkages between trade and aid, other contributors to the special issue reprise that concern with the “transnational standardization of pathways towards capital accumulation” in cases of environmental law and arbitration. Guy Van Harten suggests, for example, with regard to the Dabhol project in India, a power generation enterprise “launched by the Enron Corporation in the 1990s in the State of Maharashtra,” that “TWAIL might benefit from the incorporation of a more applied and technical analysis alongside its guiding principles and framework for critique” (2011: 132–3), with the implication perhaps that there are other punkahs to pull than just those cooling the courtroom. Sara L. Seck returns thus to the question of “transnational business and environmental harm” and the ravages, particularly in the Third World, of “global commons harm” (2011: 175), or what Rob Nixon, in a different but related context, has so persuasively described as the “slow violence” of the “environmentalism of the poor.” According to Nixon, this “violence of delayed destruction” is “not just attritional but also exponential” (2011: 2–3), which, from a TWAIL perspective as well, makes it imperative to determine “whether, under international law, home state regulation is a neo-colonial infringement of host state sovereignty, or alternately, whether it is a permissible, if not mandatory, exercise of jurisdiction that protects the ecological integrity of local communities” (Seck 2011: 173). Such a determination would have yet further implications for international investment law as discussed in Muthucumaraswamy Sornarajah’s examination of whether foreign investment is indeed “essential to economic development” or instead just contributing to the further “exploitation of host economies” after all (2011: 204).

TWAIL: power to the punkah wallah

The puller of the punkah, in other words, once seen by Adela on entering the early-twentieth-century Indian courtroom in A Passage to India as the “humblest of all who were present, a person who had no bearing on the trial,” finds himself perhaps in the process of becoming something other than a bit player in the TWAIL dramatic reimagination of the historical narrative of international law, in its activation of, according to James Thuo Gathii, a “decentralized network of scholars,” an “historically aware methodology,” a “discipline in transition, expansion, definition, international contestation,” all the while continuously “intervening within the dominant discourses of international law” as a strategy of “resistance towards projections of both metropolitan power and authority over third world peoples” (Gathii 2011: 34–35).