Decolonization in Third and Fourth Worlds: synergy, solidarity, and sustainability through international law

Usha Natarajan

Recognition

The Australian Prime Minister made the following statement as part of his address

in December 1992 to launch the International Year of the World’s Indigenous

Peoples:

It begins, I think, with that act of recognition. Recognition that it was we who did the dispossessing. We took the traditional lands and smashed the traditional way of life. We brought the diseases. The alcohol. We committed the murders. We took the children from their mothers. We practiced discrimination and exclusion. It was our ignorance and our prejudice. And our failure to imagine these things being done to us. With some noble exceptions, we failed to make the most basic human response and enter into their hearts and minds. We failed to ask how would I feel if this were done to me? ... it might help us if we non-Aboriginal Australians imagined ourselves dispossessed of land we had lived on for fifty thousand years and then imagined ourselves told that it had never been ours. Imagine if ours was the oldest culture in the world and we were told that it was worthless. Imagine if we had resisted this settlement, suffered and died in the defense of our land, and then were told in history books that we had given up without a fight. Imagine if non-Aboriginal Australians had served their country in peace and war and were then ignored in history books. Imagine if our feats on sporting fields had inspired admiration and patriotism and yet did nothing to diminish prejudice. Imagine if our spiritual life was denied and ridiculed. Imagine if we had suffered the injustice and then were blamed for it. It seems to me that if we can imagine the injustice we can imagine its opposite. . . . We cannot imagine that the descendants of people whose genius and resilience maintained a culture here through fifty thousand years or more, through cataclysmic changes to the climate and environment, and who then survived two centuries of dispossession and abuse, will be denied their place.[1]

Six months earlier, the High Court of Australia had delivered the momentous Mabo judgment.[2] Mabo is significant for international lawyers because it considers how title is acquired over territory, in this case examining the international law- doctrine of terra nullius, permitting empty lands to be settled. Australia was considered terra nullius by European colonists because, although it was populated, its peoples w-ere considered by Europeans to be too primitive and lawless to signify. Hence, despite extensive warfare between colonists and Indigenous peoples, European title over Australia was asserted through settlement rather than conquest. The distinction between settlement and conquest has legal implications. Settlement allows settlers to determine the applicable legal system. Conquest recognizes the pre-existence of native legal systems and potential sovereign entities that must be dealt with in accordance with international laws on warfare and conquest. Mabo recognized for the first time that Australia was not terra nullius. Hence, European settlement of Australia did not commence with a legally clean slate after all. Indigenous peoples and their laws must be recognized, including consideration of which of these law-s survived European conquest into the present day, such as those laws which grant native title over territory. Alongside Mabo's legal recognition that Indigenous peoples existed at the time of European conquest, the Redfern Address recognized the efforts colonists made to eliminate them. Terra nullius was the foundation upon which colonial legal systems evolved in Australia for more than 200 years, and many of these laws and policies attempted to make real the imagined empty land through enabling genocide, apartheid, racial discrimination, and forced cultural assimilation.

Third World Approaches to International Law (TWAIL) is a movement that unpacks the Western colonial legacies of international law-, demands decolonization, and advocates for a discipline that is genuinely international. For TWAIL, the relationship between international law and Indigenous and Tribal peoples raises several challenges. The above extract is a selected abridgement of a longer address, but for our purposes, it is w-orth mentioning that the last sentence of the extract ends as follow-s:

We cannot imagine that the descendants of people whose genius and resilience maintained a culture here through fifty thousand years or more, through cataclysmic changes to the climate and environment, and who then survived two centuries of dispossession and abuse, w-ill be denied their place in the modern Australian nation,[3]

While an Australian Prime Minister is unlikely to end such a sentence in any other way, therein lies the rub for Indigenous and Tribal peoples. Denying the sovereignty, independence, and self-determination of Indigenous and Tribal peoples also poses fundamental challenges for international law and for TWAIL.

Sovereign statehood is the fundamental building block of international law, so it is unsurprising that the disciplinary criteria for sovereign statehood have been a central subject of TWAIL’s anti-imperial critique.[4] To what extent has such critique been helpful for addressing the predicament of Indigenous and Tribal peoples? Could TWAIL do better? Or are Third World approaches destined to be problematic for Indigenous or Fourth World approaches? This chapter argues that TWAIL should operate in synergy and solidarity with Fourth World approaches to promote justice and self-awareness. It concludes that such a stance is particularly indispensable to evolving adequate responses to epochal environmental change and achieving sustainable development.

It may help to begin with recognition that the questions explored in this chapter stem from my own journey as an international lawyer. I have been part of TWAIL for many years and, although the colonial experience is central to TWAIL, I did not think seriously about the plight of those still colonized until recently - this despite being from two countries, India and Australia, deeply implicated in the dispossession and oppression of Indigenous and Tribal peoples. Born in India, I was raised with a keen awareness of the evils of the caste system and racial discrimination, yet I never thought about Tribal peoples. That they existed at all never entered my urban life or daily politics. My parents moved to Australia when I was a teenager. At school, w'e were not taught that our homes and school were on land sacred to others who had been massacred. Attempted genocide by colonists in the early to mid-1800s had decimated Indigenous populations in Victoria, where I grew' up. While the peoples who previously lived where I lived had in some sense been wiped off the map, they were still present in the soil on which we grew and learned, our homes, and our schools, some of which I later learned were burial grounds. I had never to my knowledge met an Indigenous or Tribal person during my school years, but they haunted us in the violence and ignorance we were inheriting and passing on.

An interest in global justice eventually drew' me to international law and TWAIL, but I focused on the postcolonial dilemmas of the peoples of the Global South - which spoke most closely to my own life experience - and the need to combat contemporary forms of imperialism. In 2012, Amar Bhatia wrote an influential article about what TWAIL could learn from Indigenous and Fourth World approaches.[5] Three years later, Amar, John Reynolds, Sujith Xavier, and I organized the first TWAIL conference in the Global South in Cairo. That it had taken so long to meet in the South was due to the political, financial, and administrative barriers to organizing large-scale events here. The conference theme was praxis, a fitting reminder for us to address TWAIL’s blind spots; yet ultimately, we failed to draw significant Indigenous participation to Cairo, whether from the Global South or North. Barriers that prevented regular TWA 11. meetings in the South were present to a much greater degree for Indigenous and Tribal scholars. Those who overcame systemic barriers to their participation in knowledge production then faced disproportionate demands on their time and energy, strains on health and finances, macro- and microaggressions, and inadequate infrastructure and support systems. That is to say, they face the consequences of structural violence that many peoples in the Global South are familiar with, but in much more intensified and protracted forms because they remain colonized.

The conference commemorated in this edited collection was the first to explicitly unite in conversation scholars of Third and Fourth World approaches. Organized by Sujith Xavier, Valarie Waboose, Jeffery G. Hewitt, Amar Bhatia, and Amaya Alvez Marin at Windsor, Canada, in April 2018, the conference was titled Decolonizing Law: Methods, Strategies, Tactics. Rather than discussing how to decolonize law, Indigenous scholars instead showed how it is done through living, enacting, and performing diverse Indigenous legal orders that are alive, present, and functioning. Many of these orders are grounded in knowledges missing or lost to contemporary international law: life as profoundly interconnected, respect for self and others, and wisdom and dignity in the face of immense suffering. Indigenous legal traditions often spoke directly and indirectly to challenges in international investment law, economic law, migration law, environmental law, human rights law, and so on that we regularly encounter in mainstream international law conferences. They provide much more than a path to law reform, showing new ways of understanding law, our role in society as the producers of legal knowledge, and what example we set. As a TWAIL scholar, all I had to offer was my attention. The following sections contemplate ways in which TWAIL could operate in synergy and solidarity with Indigenous legal orders. It concludes by considering what the stakes are at a time of environmental change.

Synergy

International law is Eurocentric in its origins and evolution, and Western biases persist in its contemporary operations.[6] In attempting to change this discipline into something truly international, TWAIL is contending with a philosophy and discourse structured to either assimilate or destroy that which is foreign to Western thought.[7] Hence, transformation is a taxing endeavor requiring careful strategics. Long before TWAIL was established in 1997, international lawyers from the Global South sought to introduce alternative legal philosophies, concepts, and languages into the discipline.[8] This was particularly the case after many Southern states gained their independence from colonial rule. Against overwhelming odds, they achieved a measure of success,[9] but much work remains to be done for those of us who stand on their shoulders. Against this background, and given the even more arduous struggles faced by Indigenous and Tribal peoples, is it mutually beneficial for the two groups to ally themselves? When it is a challenge to create and maintain solidarity within each of these large transnational groups, is it worthwhile simultaneously striving for solidarity across them, given that the trials of those who remain colonized are different in many ways to those of the postcolonial world? This chapter argues that such an alliance can be mutually beneficial. What is more, for TWAIL, supporting Indigenous and Tribal approaches is indispensable for the sake of justice, self-awareness, and achieving TWAIL’s own goals.

TWAIL’s raison d’etre is to resist colonialism and imperialism. As such, independence and self-determination for Indigenous and Tribal peoples, as well as others who remain colonized, is imperative to our aims. Moreover, synergy with Fourth World approaches may help TWAIL better understand and negotiate some of the challenges and pitfalls of the past and shape tactics based on greater self-awareness. Past endeavors evidence that postcolonial efforts to transform international law may have unintended consequences. After the Second World War, many states in the Global South gained their independence. Alliances across the Global South, such as the G-77 and the Non-Aligned Movement, were used to introduce new legal concepts into international law through, among other things, southern states’ majority in the United Nations

General Assembly.[10] These reform efforts were grounded on the sovereign equality of new states and their right to participate as equals with existing states in international lawmaking. These interventions, many of which took place in the 1960s and 1970s, were intended to benefit the peoples of the Global South. However, ultimately, many of them served to strengthen the power of southern ruling elites, including unrepresentative authoritarian elites who benefited at the expense of the peoples of the South.[11]

The establishment of TWAIL in 1997 was a reaction to these outcomes, demanding a type of Third World critique that would empower the poor masses of the South against the exploitation of transnational elites.[12] To more fully understand why past Third World efforts to participate in international law did not meet with the anticipated success, TWAIL scholars from the 1990s onwards scrutinized above all the route that enabled their participation, namely sovereign statehood. They uncovered the structural violence the postcolonial world inherited through the medium of the sovereign state, a violence embedded in and universalized through international law. Sovereign statehood constrained the choices of postcolonial societies in innumerable ways, including their governance and development pathways,[13] their relationship to the natural environment,[14] their relationship with neighboring communities,[15] and so on. For the purposes of this chapter, the characteristic to note is that the suffering of Indigenous and Tribal peoples is a founding element in the violence of the sovereign state.

There is a commonality of experience for Indigenous and Tribal peoples across the Global North and South in terms of dispossession of their culture, land, and dignity. This is not a coincidence but, among other things, the inevitable and systemic product of the sovereign state system. This chapter commenced with one of the starkest examples, the doctrine of terra nullius as applied in Australia that declared the continent uninhabited before European settlement. The peoples living across the Australian continent represent the greatest cultural and linguistic diversity in the world, a precious and irreplaceable part of the cultural heritage of humanity.[16] Yet their erasure was the foundation on which Australian sovereign statehood was built.

When compared with the British settler colonies of the Global North such as Australia, New Zealand, Canada, and the United States, the experiences of Indigenous and Tribal peoples across the Global South have been much more diverse but no less devastating in final effect. One of the framing doctrines of sovereign statehood in the global South is that of uti posseditis juris, requiring that colonial frontiers be preserved as a condition of independence.[17] The transformation of diverse governance and territorial arrangements, first through colonial rule and consequently into sovereign states, threatened those cultures that straddled multiple state territories as well as those habituated to modes of governance and law not accommodated by the modern state.

Alongside borders and political structures that were determined by Europeans, sovereign statehood in the Global South also required commitment to develop- mentalism and the continual pursuit of economic growth. Cultures that were not committed to the commodification of nature in the Western sense were considered primitive, undeserving of sovereignty, and requiring transformation. Across the world, international law played its part in universalizing Western understandings of progress: development as industrialization, nature as a natural resource, earth as property, humans as atomistic individuals in sovereign states, and the world as a collection of states committed to economic growth. Cultures that understood life and progress differently, including most Indigenous and Tribal communities across the Global South and North, were encompassed within state systems designed to assimilate citizens into the developmental mainstream and eradicate incommensurate worldviews.[18]

The dynamics of imposing a culturally incongruous Western state system across the world are anything but straightforward. It was not simply that the Third World reluctantly accepted the concept of the sovereign state. The psychology of colonization to some extent indoctrinated the colonized into wanting the attributes of the colonizer, as this was usually the means to freedom and independence. To overcome the operation of such psychology, independence leaders such as Mahatma Gandhi and Frantz Fanon pointed out that the move to independence need not logically conclude with the establishment of yet another sovereign state. Gandhi warned that modern statehood contained structural violence: “We want the English rule without the Englishman. You want the tiger’s nature but not the tiger”.[19] These cautions have since proved prescient across many parts of the Global South. For instance, across the Arab world the ongoing uprisings over the last decade show how sovereign independence alone cannot provide freedom from imperialism and that the postcolonial state is an effective vehicle of this imperialism.

That violence against Indigenous and Tribal peoples is embedded in state structures has several implications for Third and Fourth World approaches. As Anghie and Chimni observe, contemporary strategies need to keep in mind that reform attempts that strengthen the power of sovereign states may occur at the expense of people power.[20] With this in mind, Indigenous and Tribal demands for sovereignty and self-determination cannot be understood as merely wanting membership within the club of sovereign states, but rather as a contestation of this homogenizing system through insisting on recognition of different, and hopefully less violent and harmful, modes of collective organization and structures of governance. That is to say, decolonization and sovereign independence is fundamental and crucial for the Fourth World, but it must be on their own terms in order to stand a chance of not replicating the violence of colonialism. In the Global South, there has to be recognition that, as in the Global North, the postcolonial state and its non-Indigcnous citizens are also complicit in the oppression and colonization of Indigenous and Tribal peoples. For peoples of the Global South, it requires understanding the violence we inherited through the experience of colonization and decolonization, and the innumerable ways in which this violence is reproduced and proliferated through modern institutions, cultures, and citizenship. Such understandings will hopefully produce a commitment to finding ways to transcend this violence through an openness to and respect for Indigenous and Tribal sovereignty and worldviews.

When it comes to the TWAIL movement, though much of our scholarly attention is devoted to analyzing the dilemmas of the postcolonial state and the persistence of imperialism, we have not usually foregrounded Indigenous and Tribal struggles for decolonization across the Global South and North. Such struggles speak directly to TWAIL’s anticolonial and anti-imperial commitments yet remain systemically neglected, notwithstanding calls to attention from Bha- tia and some increase in notice over the last decade.[21] TWAIL is not alone in this quandary. Critical movements more generally, particularly those dedicated to postcolonialism and antiracism, have long been called on to take Indigenous and Tribal decolonization seriously and have struggled to do so. When considering

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the way in which TWAIL scholarship has understood the relationship between Indigenous and Tribal peoples and international law, while there seems an openness to learning from Indigenous and Tribal experiences in selective ways, particularly in a historical context, there are fewer examples of TWAIL scholarship that take contemporary Indigenous and Tribal legal approaches and demands for self-determination seriously.[22] Building on Bhatia’s study of the contemporary implications of settler colonialism in North America for Indigenous peoples and international law, listening to and taking into account the experiences and stories of Indigenous and Tribal peoples across the Global South as well would help develop a more self-reflexive movement in conscious synergy with Indigenous calls for self-determination within postcolonial states.[23]

TWAIL scholars such as Anghie and Porras have foregrounded that colonizing Indigenous territory was central to the creation and evolution of international law. Their scrutiny of disciplinary origins reveals the colonial encounter to be formative for the European founding fathers of international law, from Vitoria with regard to Spanish conquest of the Americas[24] to Grotius defending Dutch corporations in the East Indies.[25] Through a close reading of Vitoria’s texts, both Anghie and Porras identify the origins of disciplinary archetypes that emerged from European encounters with the Americas. Anghie traces the disciplinary technique for eradicating cultural difference through either assimilation or destruction. Porras points to the commodification of nature in putative service of the providential design doctrine of international commerce (commerce understood as a consensual, reciprocal, mutually beneficial exchange that builds amity among separated peoples). Both scholars trace the harmfi.il contemporary operations of these enduring disciplinary archetypes. Porras points out that contemporary difficulties with moving towards sustainable development can be at least partially attributed to long-standing disciplinary dedication to protecting commercial interests.[23] Both scholars have also drawn parallels between excluding Native Americans from legal protection in the early 20th century because of their allegedly lawless and uncivilized character, and the exclusion of suspected terrorists from legal protection in the early 21st century by the same reasoning.[27] Indeed, these interconnections reveal themselves in more recent spaces of violence, with North American soldiers in Vietnam and peacekeepers in Somalia both referring to the places they occupied as ‘Indian country’.[28] Anghie and Porras have been formative and influential in the TWAIL movement and, by building on their insights, TWAIL scholarship could also address the complexity of contemporary Indigenous and Tribal struggles and their relationship with other historical and contemporary struggles across the South. Beyond a historical phenomenon that helps shed light on how international law treats the non-European world, the suffering of Indigenous and Tribal peoples is an ongoing protracted assertion of sovereignty and self-determination to which TWAIL owes its allegiance.

The parallels Anghie and Porras draw between the treatment of Native Americans in the ‘Wild West’ and suspected terrorists in ‘outlaw states’ - that they are both perceived to behave lawlessly and hence undeserving of legal protection and cast outside the ambit of the law - has resonance with the state of exception as understood by Agamben and Schmitt.[29] Mbembe and others have pointed out, in the same vein as Anghie and Porras, that state of exception powers became entrenched in European legal systems through colonial projects for eliminating Indigenous nations.[30] The state of exception is a powerful enactment of sovereign power,[31] and Dafnos examines its use and evolution in the Canadian context to assert executive power in attempts to eradicate competing sovereignties from Indigenous nations.[32] Dafnos goes on to show how, in the past, the state of exception was more easily observable because it operated in the context of war, conquest, and declarations of martial law. However, today, operations of the state of exception can be much more obscured, although the same reasoning underlies the way the state engages in social pacification through quotidian repressive and eliminatory practices against Indigenous and Tribal peoples as well as others who protest against and resist state power.[23] Dafnos attributes this obfuscation to, among other things, a gradual process of “discursive liberalization of legal doctrine”.[34] While Dafnos focuses on the North American context, the same trends are observable in how many postcolonial states subdue their Indigenous and Tribal populations.[35]

Third World states assert their ‘post’-coloniality only through ignoring Indigenous and Tribal sovereignty. Postcolonialist movements such as TWAIL have often been complied in this neglect because, even when we extend our observations about the ongoing operations of imperialism to the situation of Indigenous and Tribal peoples in the Global South and North, it is rarely in the context of recognizing contemporary Indigenous sovereignty. If Indigenous and Tribal peoples only enter TWAIL as history, then we are participants in their erasure and the myth of terra nullius. For these reasons, some scholars contend that postcolonial movements can never be in solidarity with Indigenous movements.[36] When we see how South-South extractivism thrives upon the exploitation of Indigenous lands across the Global South, it is not hard to understand why. From state enticement of extractive industries that are swarming to mine the mineral-rich transnational Tribal belt across South Asia to Chinese investment

5

in exploiting Indigenous lands in Africa and Latin America,[37] Indigenous and Tribal lands across the Global South are not the target of Western exploitation alone. Often situated on the last remaining pockets of valuable natural resources, Indigenous and Tribal communities across the South are targets of powerful extractive industries from all over the world that ruthlessly compete for access regardless of provenance. In such a context, it is all the more crucial for TWAIL to strategize in synergy with Indigenous and Tribal approaches, to end our complicity in the diverse operations of imperialism and work together to dismantle imperial structures.

Solidarity

What does it mean for TWAIL to be in solidarity with Indigenous and Tribal peoples? As discussed in the previous section, everywhere the postcolonial state has contributed to marginalizing Indigenous and Tribal cultures and traditions in different ways and degrees. The diversity of experiences of Indigenous and Tribal communities across the global South needs to be kept in mind. Experiences across Central and South America where Indigenous populations are in the majority in some areas are significantly different to those facing Tribal minorities in India, China, and Indonesia; which are different again to communities across Melanesia and Polynesia; and different again in South Africa, West Africa, among Tribal communities in the Arab world, and so on. Within each of these regions itself, the diversity of experiences is staggering. But recognizing the complicity of the postcolonial state in the suffering of Indigenous and Tribal peoples is a commonality and a starting point for solidarity. However, solidarity entails more than a rhetorical acknowledgement of complicity. If we admit that, as in the Global North, postcolonial states and peoples have also oppressed Indigenous and Tribal cultures and stolen their land and resources, what follows is the task of putting an end to oppressive practices in political and personal spheres. For TWAIL, this entails framing arguments in ways that disrupt the hierarchies that lie at the foundations of the postcolonial state. Achieving greater participation for the Global South in international law will be insufficient unless this is leveraged to reshape an inherently imperial discipline, so that the nature of sovereignty is itself transformed to recognize the sovereignty of Indigenous and Tribal peoples and others who remain under colonial oppression. Unless TWAIL centers contemporary independence struggles and directly confronts colonial violence as it exists in the world today, we strengthen those disciplinary powers that made colonialism possible in the first place.

In attempts to show support, solidarity, and alliance, there is a temptation to make the easy move towards inclusiveness and pluralism. When postcolonial movements endeavor to bring ongoing colonization into the conversation, the tendency is to encompass contemporary decolonization struggles within a broad framework where decolonization is one component of a larger struggle across the Global South that incorporates dimensions of race, gender, sexuality, class, caste, and other identity-based movements. Pluralism and inclusivity of this type marginalizes Indigenous and Tribal peoples and obscures the complex ways in which peoples of the Global South have participated in projects of colonization.[38] Rather than one among many concerns of interest to TWAIL, ongoing colonization and the decolonization struggles it has given rise to speak to the central aim of TWAIL. Solidarity does not require every postcolonial scholar and activist to become an expert in Indigenous and Tribal laws or focus exclusively or extensively on these matters. Rather, when speaking of colonialism and imperialism as we regularly do, an explicit awareness and articulation of the intersection with Indigenous and Tribal concerns and others who are still colonized is helpful.[39] In this way, the nuances of how colonial structures operate - their persistence, reproduction, and proliferation - may be better understood. Through discussions with Indigenous and Tribal scholars and activists, we could frame claims about the Global South in ways that do not disempower Indigenous and Tribal peoples.[40] Unless TWAIL engages with Indigenous and Tribal struggles on their own terms, we are false to our anti-imperial commitments and undercut our ability to see and address the frill violence of the postcolonial state, including our own participation in this violence.

Extrapolating from Lawrence and Dua’s analysis of the relationship between antiracism movements and Indigenous and Tribal struggles, an important step for postcolonial movements showing solidarity with Indigenous and Tribal peoples is explicit recognition of and respect for Indigenous and Tribal sovereignty, self-determination, and legal systems. It is profoundly unsettling to the state and its dominant cultures - whether in the Global South or North - to remap traditional territories through recovering earlier names, boundaries, cosmologies, mythologies, and laws.[41] TWAIL can participate in recognizing the inherent sovereignty of Indigenous and Tribal nations as peoples that have occupied specific territories, permanent populations, forms of governance and law, and in many instances have entered into legal relationships with other sovereigns.[42]

Recognition of Indigenous and Tribal sovereignty underpins Tuck and Yang’s exhortation that “decolonization is not a metaphor”, which raises several issues with regard to solidarity.[43] Tuck and Yang write against the increasing tendency to dilute and co-opt the term ‘decolonization’ by using it signify any struggle against oppression, as well as the philanthropic process of privileged people ostensibly ‘helping’ those who in actuality underwrite their privilege. From ‘decolonizing methodologies’, ‘decolonizing wealth’, and ‘decolonizing the mind’ to ‘decolonizing the university’, ‘decolonizing the curriculum’, and ‘decolonizing the syllabus’,[44] the term has been stretched to encompass any social justice struggle. Tuck and Yang point out that “decolonization is not a metonym for social justice”.[45] Crucially, decolonization requires the repatriation of land. Social justice efforts dedicated to fighting racism, sexism, classism, and so on may be commendable, but calling them decolonization can also entail “moves to innocence - diversions, distractions, which relieve . . . feelings of guilt or responsibility, and conceal the need to give up land or power or privilege” [23]

The importance of Tuck and Yang’s observations for TWAIL lies not so much in their calls against diluting the seriousness, meaning, and promise of actual decolonization but in its metaphorical extensions. While this is a crucial point, it is an argument readily understandable for peoples across the Global South given our own independence struggles. Despite all the failings of the postcolonial state, it is infinitely preferable to alien rule, and respecting the ongoing relevance of the original meaning of the term ‘decolonization’ is presumably a stance most TWAILers would easily get behind and support. Even more helpful for TWAIL is their analysis of how the ostensible pursuit of critical consciousness and social justice can itself serve as a means of holding on to privilege while obfuscating its operations. Tuck and Yang explain this by taking Jacobs’s concept of “white harm reduction models” applied in the context of antiracism struggles in North America and extending it to colonizers.[47] [23] If the goal of white harm reduction models is to reduce the harm that white supremacy has had on white people, the “colonizer harm reduction model” is to reduce the harm that colonization has on the colonizer. The latter is how Tuck and Yang understand the pedagogical project of critical consciousness and its attempts to resuscitate non-Western ontologies.30 In 2012 they presciently observed that, in a world of increasing environmental and economic injustice where inequality and violence proliferates, those in positions of power and wealth have an acute need for harm reduction models so they can retain their positions of privilege. Indeed, in this decade, the metonymic use of decolonization has proliferated, and momentum continues to grow.[49] Tuck and Yang warn that such models function as stopgaps and do not inherently offer any pathways that lead to decolonization.[45] The point is particularly helpfi.il given the comparatively elite context of academic life and the opportunities it offers for accumulating privilege and wealth, both for TWAIL’s own awareness of privilege and for how we understand and relate tactically to other critical movements.

To illustrate the two different understandings and uses of decolonization in the world today, Tuck and Yank compare the approaches of Cesaire and Fanon with that of Freire. In Frcire’s most celebrated work. Pedagogy of the Oppressed, the categories of the oppressed and oppressor are abstracted to the extent that it is not always clear who exactly the people are who constitute each category. Additionally, throughout the text, “an innocent third category of enlightened human” is inferred,[51] who is described thus by Freire in the opening dedication: “those who suffer with [the oppressed] and fight at their side”.[52] Tuck and Yang point out that it is only through making such an inference that the critical scholar is able to indulge in a “fantasy of mutuality based on sympathy and suffering”.[53]

Freire situates the work of liberation in the minds of the oppressed.[54] Undoubtedly colonization transforms not only territories and bodies but also minds. However, it is only by reducing colonization to ‘mental colonization’ that critical scholars turn decolonization into a metaphor for any oppression, opening the way to a lack of specificity about who exactly the oppressed and oppressors are. Tuck and Yang warn that this logically leads to the misleading proposition “decolonize your mind and the rest will follow”,[55] allowing critique to conveniently sidestep political demands for sovereignty. In contrast, Cesaire asks: “The essential thing is to see clearly, to think clearly - that is, dangerously and to answer clearly the innocent first question: what, fundamentally, is colonization?”[56] He then points out what decolonization is not: “Neither evangelization, nor a philanthropic enterprise, nor a desire to push back the frontiers of ignorance, disease, and tyranny”.[23] Cesaire and Fanon recognize that colonization must be understood specifically with attention to colonial structures that order relationships between peoples and the world. These structures differ from place to place, and the specificity of such structures must be understood and addressed alongside the global and historical patterns of colonial relations.[58] And in considering these structures, Fanon was unambiguous about the identity of the oppressed and the oppressors - the colonized and colonizers - without admittance of an innocent third category.[59] This allowed him to predict that decolonization would be chaotic and that no clean break was possible.[23] He was under no illusions a la Freire that a free mind could produce ultimate liberation for both oppressed and oppressor. Again, this is not to denigrate the value and importance of mental freedom, but rather to make the point that liberation of the mind is not the same as decolonization and does not necessarily provide a pathway to decolonization - it is necessary but not sufficient and can be used by the privileged as a harm reduction model so as to preserve their privilege and distract from actual decolonization. For TWAIL, this observation provides a warning that critical intellectuals who metaphorize decolonization may be hybridizing decolonial thought with Western critical traditions, allowing them to adopt a stance simultaneously superior to both Third World intellectuals and Western theorists. Tuck and Yang compare such intellectuals with James Fenimore Cooper’s Hawkeye from The Last of the Mohicans: “With his critical hawk-eye, he again sees the critique better than anyone and sees the world from a loftier station. It is a fiction, just as Cooper’s Hawkeye”.[61]

With these caveats in mind, it is apparent that genuine solidarity with Indigenous and Tribal peoples entails a long journey of self-awareness, humility, transformation, and sacrifice, not to be lightly undertaken. Solidarity across the Third and Fourth Worlds is not a new idea. Bhatia identifies in his prologue the political and personal ties between Indigenous activists in North America and African leaders and diplomats that together helped shape the notion of the Fourth World.[62] [63] In pointing to the desire for solidarity among oppressed peoples, Bhatia quotes Deloria, that such ambitions somehow attributed “to people of foreign lands a sophisticated knowledge of North American affairs that they did not have or feel”.[61] Yet this has not stopped transnational solidarity movements throughout the 20th and 21st centuries from regularly extrapolating in precisely this way. For instance, commonalities across the Global South - some of which were undoubtedly imagined or aspirational - underlie among other things the Non- Aligned Movement, the G-77, and also TWAIL.

Taking a more recent example, the environmental justice movement has built bridges from its beginnings in poor African American communities in the United States towards declaring global solidarity among all poor peoples of color.[65] These links go beyond strategic support and strength and are founded on an awareness of genuine commonalities. Given the origins of environmental justice in the heartlands of the long-industrialized United States, with its particularities of race and class, at first glance such transnational links may seem surprising. However, the connections become evident when considering the US development pathway and its indivisibility from the exploitation of labor and resources worldwide. US particularities of race and class were produced by centuries of settler colonialism, genocide of Indigenous populations, slavery and forced labor, apartheid, access to labor and resources across the globe, and environmental degradation. Hence, when the People of Color Environmental Leadership Summit formulated their Principles of Environmental Justice in 1991, they explicitly acknowledged this historical and geographical link, stating that they are

gathered together ... to build a national and international movement of all peoples of color to fight the destruction and taking of our lands and communities ... to respect and celebrate each of our cultures, languages and beliefs about the natural world and our roles in healing ourselves . . . and, to secure our political, economic and cultural liberation that has been denied for over 500 years of colonization and oppression, resulting in the poisoning of our communities and land and the genocide of our peoples.[66]

That is to say, environmental justice did not begin only in the United States. It stems from centuries of environmental degradation as a result of colonization and the oppression of communities of color worldwide - communities everywhere that carried the burden of Western industrialization through loss of land, livelihood, and life so that elites could profit.[67]

Deloria correctly observes that some alliances imply a familiarity with each other that belies the truth, but that is not to say that underlying commonalities are non-existent. Thus, Bhatia deduces that “while the relationship between the Third and Fourth World and their projects should not be cither assumed or rejected outright, it is similar to international law in that there is no escaping from it”.[68] Uncovering potential intersections requires learning more about contradictions and mutual concerns in specific Third and Fourth World sites of struggle. Bhatia addresses intersections between TWAIL and Indigenous struggles in the global North. Dua points out how, for postcolonialists, basic curiosity can play a role in learning about the South of the North: “In India, people wondered of another place where people were also called Indian”.[69] In the Global South, in most of the world, freedom from European rule did not produce postcolonial- ity for many Tribal peoples, and TWAIL scholars such as Chandra and Singh examine the relationship between international law and Tribal struggles across South Asia.[70] Examples of productive alliances in the Global South between Indigenous and other communities include environmental justice movements across Southeast Asia in the 1990s. These movements united in opposition to mega-dam and other mega-infrastructure projects financed by the World Bank in Indonesia, Thailand, and the Philippines. Solidarity among peasants, workers, and Indigenous and Tribal peoples not only put an end to projects but ended up pushing towards more representative governance.[71] Many Indigenous and Tribal struggles for sovereignty continue across Southeast Asia, as do worker and peasant struggles, so the assertion here is not that these alliances culminated in ultimate success for any of the movements involved, but rather that together they achieved certain tactical goals that they may not have achieved otherwise and this was mutually beneficial.

Sustainability

Postcolonial movements that articulate culture and race without taking Indigenous and Tribal suffering into account preclude an accurate and sophisticated analysis of how culture, identity, hybridity, diaspora, and so on are shaped.[72] Similarly, for TWAIL, failing to take contemporary anticolonial struggles seriously undermines our understanding of contemporary forms of cultural differentiation, racism, and xenophobia and the ways in which these phenomena play out in various fields of international endeavor such as migration, climate change, sustainable development, and economic inequality, among other things. Indigenous and Tribal laws often shed light on how to better respond to pressing contemporary international legal issues. This chapter concludes by considering the issue of environmental change on a planetary scale, which poses governance challenges to which international law has been unable to adequately respond, arguing that insights from Indigenous and Tribal legal systems could provide productive pathways towards resolving disciplinary dilemmas.

Environmental change at the scale we are witnessing today - amid the sixth mass extinction, a changing climate, deforestation, desertification, and increasing pollution and toxicity of the air, water, and land - is uncontainable by national borders. These are global concerns and need international cooperation for adequate response. So far, international lawyers have not been able to provide solutions. Since the 1970s, an increasingly specialized field of international environmental law has been brought to bear on the aforementioned concerns, yet each continues to steadily deteriorate.[73] International lawyers are unable to produce viable solutions to either environmental destruction or increasing inequalities of wealth and power, the two outcomes of the dominant global economic model. The discipline remains trapped in the seemingly inescapable orbit of industrial development, globalized capitalism, and myths of economic progress. While experts routinely call for a post-capitalist future, international efforts to take steps together in this direction have not worked. Rather than systemic change, environmental lawyers instead look towards the ‘green economy’ and ‘green growth’ to solve environmental crises,[74] as though capitalism could simultaneously solve the problems it creates. So-called green solutions, from biofuels to electric vehicles, from carbon offsets to carbon trading, are creative ways to fuel economic growth but do not stand up to scrutiny when it comes to environmental protection.[75] [76]

A significant barrier to creating economic development models that are more ecologically and socially sustainable is that the rich and powerful have vested interests in preserving the status quo. The wealthy few refuse to capitulate their privilege to provide economic and environmental justice to the masses. The current development model has its origins in the European Enlightenment and is founded on limitless commodification and exploitation of the natural environment.7 Hence, natural limits for ecosystem repair and renewal are inevitably exceeded, creating environmental crises. Lawyers, economists, and politicians all play roles in creating, maintaining, and changing economic systems. A world of increasing inequality, rapid environmental change, and widespread injustice and unrest provides the opportunity’ to mobilize for change if sustainable alternatives can be imagined. We have not been able to articulate such alternatives effectively, and it may be helpful to consider some of the underlying reasons for this fruitlessness.

One of the reasons international law (and other social sciences) has been unable to tackle environmental problems is that it has conceptualized the environment in a manner that is inaccurate and hubristic. The environment cannot be understood solely as the object of legal regulation. Nature provides the basis for life and underlies all knowledge. While international lawyers cannot physically separate ourselves from the environment, w'e nevertheless assert our occupation of a conceptual position outside it, from which w'e putatively observe and govern it. Instead of producing regulatory solutions, the law’s ability to conceptually isolate itself from the natural world has helped create environmental catastrophes. The environment cannot be merely the subject of a discrete disciplinary specialization. Understandings about the natural world underpin and organize the entire international legal order - and indeed all other social sciences - and these assumptions need to be identified, unpacked, and radically reworked if we are to think our way out of destructive development patterns and ecological crises. International law in its entirety structures and enables environmental degradation and, without radical disciplinary change, a sub-speciality dedicated to environmental protection is doomed to failure.[77]

Contemporary disciplinary understandings of economic development and the natural environment are an inherent part of Western modernity and its antecedents in the European Enlightenment.[78] This worldview was gradually universalized through the process of European colonization and the conditions of decolonization and normalized through, among other things, international law and international institutions. The belief that everything is knowable, classifiable, and governable - all of nature within the grasp of the human hand and mind - has helped transform a unified planet into discrete sovereign territories, converted nature into exchangeable property, turned interconnected ecosystems into realms of infinite commodification and exchange, and extracted and conceptually separated an atomized human individual from the intertwined mesh of life. Modern law not only enables environmental destruction but understands the natural environment in a manner that ensures the impossibility of remedy. Hence, remedy requires an exit from the confines of Western modernity.[79]

The environment and environmentalism as understood today within international law reconfirms Western modernity as the determinant of acceptable meanings, but the extant failures of international environmental law demand alternatives. A genuinely international solution to environmental problems requires an openness to other philosophical and theoretical understandings of the relationship between nature and law. Disciplinary willingness to take seriously those understandings of nature that gauge more accurately the parameters of our ability to govern it offers us a pathway to address environmental crises and towards more sustainable ways of life. Indigenous and Tribal communities are among the most sustainable societies in the world. Additionally, Bhatia points out that the complexity of Indigenous peoples’ relationship to international law “registers at multiple scales and defies any easy distinctions between public, private, national, domestic, foreign, and international”. This complexity is particularly helpful when it comes to identifying how environmental problems are systemi- cally embedded within the law because it undoes the presumed innateness of these distinctions and reveals how environmental destruction is enabled through particular legal constructions and configurations of public/private, national/for- eign, and domestic/international distinctions.

Indigenous understandings of the relationship between nature and law challenge and stretch legal systems everywhere. Laws recognizing the rights of Mother Earth in Bolivia,[80] the legal personality of non-human entities in New Zealand,[81] the rights of Indigenous and tribal peoples to hunt protected species in the Arctic,[82] climate justice demands of sinking small island developing states,[83] international rights of nature tribunals,[84] and Mother Earth summits held alongside international environmental law summits[85] are just some examples where Indigenous and Tribal legal systems are challenging the fundamental tenets of dominant legal systems. Targeting powerful entrenched transnational and global structures of violence that have long maintained inequality and environmental degradation, the high stakes are evidenced most starkly in the increasing murder of environmental defenders worldwide.[86] Despite these risks, movements continue to grow, necessitated by environmental change looming large and inescapable.

Indigenous and Tribal laws are not always easily articulated within mainstream legal discourse or incorporable into existing systems. Oftentimes, in challenging entrenched wealth and privilege and requiring paradigmatic change they can provoke deep resistance. In the 1980s, Dianne Otto observed that international law is incommensurable with difference[87] and is more capable and comfortable with understanding the world through order - homogeneous classifications, universal truths, and other trappings and reassurances of knowability. Argyrou describes environmentalism in the Western sense as one such ordering move - in fact the ultimate ordering move - involving casting the net of knowledge over all of existence (‘'the environment’) and subjecting it to the orderly discipline of Western thought.[88] The recalcitrance of law to accommodate different worldviews is shared across the humanities and social sciences and stems from a particular culture and history in the West about how the world can be understood and knowledge produced.

In Tuck and Yang’s comparison of Freire with Fanon, they also identify the same worldview and its potential limitations.[55] For Freire, because liberation can be gained through mental effort, it is available to both oppressed and oppressor by virtue of the human mind. Tuck and Yang point out that Freire is able to attribute this kind of liberative power to the human mind and to critical consciousness only because he writes without history, without reference to specific oppressors or oppressed, only abstract categories. In contrast, Fanon recognized the postcolonial condition “as already over determined by the violence of the colonizer and unresolved in its possible futures”.[23] Eerily prescient about the aftermath of liberation struggles across the Global South, he knew that this liberation could be incomplete and open ended. Tuck and Yang point out that these two approaches stem from two different worldviews. Freire’s understanding of liberation is an inheritance of Plato’s Cave, from which the thinking man emerges alone from the dark cave of ignorance into the light of critical consciousness,[23] whereas Fanon is more closely allied with a tradition in postcolonial, critical race, and black feminist thought that looks for freedom within the darkness itself. Tuck and Yang allude to the nature of this darkness through Audre Lorde’s evocative portrayal of this enigmatic yet inexplicably familiar place:

These places of possibility within ourselves are dark because they are ancient and hidden; they have survived and grown strong through darkness. Within these deep places, each one of us holds an incredible reserve of creativity and power, of unexamined and unrecorded emotion and feeling. The woman’s place of power within each of us is neither white nor surface; it is dark, it is ancient, and it is deep.[92]

. . . The white fathers told us, I think therefore I am; and the black mothers in each of us - the poet - whispers in our dreams, I feel therefore I can be free [93]

For Lorde, knowledge production need not be an act of control over the world. Freedom is not something that all human minds can generate through critical consciousness. Rather, it is felt and particular to experience, not a truth to be grasped but a hidden and unknowable depth to be noticed.

International law is shaped by its European antecedents, but other worldviews may understand the sources and means through which knowledge is created differently, thus producing very different understandings of law and its functions. John Borrows provides an example in ‘Earthbound’, in which he describes, builds on, and consciously shapes an evolving legal tradition that both directly and indirectly addresses the role of law in understanding and responding to environmental change. Borrows points out that an ethic of care and reconciliation with the earth, and acknowledgement of inherent limits of the natural world, permeates the laws, sciences, myths, and stories of many Indigenous and Tribal cultures.[94] From this background and context, he is able to find in the laws of nature analogous sources for human laws and policies, looking to the sun, the river, and the grass, among other things. The sun, as the source of all life and growth, provides ceaseless and reliable bounty and benefit without discrimination. It is revivifying and shows us sustainability.[95] The river collects and channels nutrients and provides a free flow of support to all that surrounds it, creating deltas where abundance and richness of life gather. When analogized to human action, the river is love, as a binding legal obligation to create conditions for others to gather and thrive in their social ecosystems.[96] The grass shows us the potentiality and fulfillment of the life force, providing lessons of mindfulness and purpose beyond the immediate struggle of people with their surroundings.[97] Borrows points out that the experience of dire poverty, with all of its suffering and misfortune, may also have the virtue of bringing people closer to the earth, exposing them to the elements, revealing the existence of natural laws that humans cannot control. Through displacing humans from the jurisprudential center of the universe, it is possible to more Hilly sense and learn from the natural environment, our place as part of it, and the laws that govern it.[98]

Contemporary environmental crises are the consequence of industrial development and globalized capitalism as well as the colonialism, genocide, slavery, apartheid, and racial discrimination that underpin them. These crises confront international lawyers with the systemic environmental and social injustice we help create and maintain. They demand an acceptance that we were mistaken in thinking we could control the natural environment. They necessitate that we transcend the confines of Western modernity and embrace instead other narratives about our relationship with the natural world that are less destructive and more accurately estimate human ability to regulate it. We need to make disciplinary space and learn to be comfortable with the different, the unknown, and the unknowable. A consideration of how to live sustainably with each other and with nature takes us back to the beginning, to recognition. First, recognition that peoples across the Global South and North caused and continue to be complicit in the suffering of Indigenous and Tribal peoples. Second, to stop participating in and reproducing this suffering requires working in synergy with Indigenous and Tribal communities to dismantle structures of violence including the modern state. Third, such a dismantling entails recognition of Indigenous and Tribal sovereignty and self-determination claims on their own terms. Finally, environmental crises provoke a recognition of our own failure to understand the world and our place in it, necessitating a turn to some of the most sustainable cultures in the world - targets of our fear and oppression and survivors of some of the most extreme forms of racism, impoverishment, and disenfranchisement - in search of knowledge.

  • [1] Paul Keating, Redfern Address, Sydney, 10 December 1992 [Keating].
  • [2] Mabo and Others v Queensland (No 2) (1992) 175 CLR 1 [Mabo],
  • [3] Keating, supra note 1 (emphasis added).
  • [4] The canonical TWAIL text is Antony Anghie’s, Imperialism, Sovereignty, and the Making ofInternational Law (New York: Cambridge University Press, 2005) [Anghie 2005]. Otherinfluential works include R. P. Anand, New States and International Law (New Delhi: Vikas,1972) [Anand 1972a] and Siba N’Zatioula Grovogui, Sovereigns, Quasi-Sovereigns, andAfricans: Race and Self-Determination in International Law (Minneapolis: University of Minnesota Press, 1996) [Grovogui].
  • [5] A. Bhatia, “The South of the North: Building on Critical Approaches to International Lawwith Lessons from the Fourth World” (2012) 14 Or Rev Inti I. 131 [Bhatia].
  • [6] B. S. Chimni, “Third World Approaches to International Law: A Manifesto” (2006) 8 IntiCommunity L Rev 3; James Thuo Gathii, “TWAIL: A Brief History of Its Origins, Its Decentralized Network and Tentative Bibliography” (2011) 3 Trade L Dev 26.
  • [7] Antony Anghie, Imperialism, Sovereignty and the Making of International Law (Cambridge:Cambridge University Press, 2003) [Anghie 2003]; Peter Fitzpatrick, Modernism and theGrounds of Law (Cambridge: Cambridge University Press, 2001) [Fitzpatrick].
  • [8] See for example R. P. Anand, ed., Asian States and the Development of International I«>i>(NewDelhi: Vikas, 1972) [Anand 1972b]; Christopher Weeramantry, Islamic Jurisprudence: AnInternational Perspective (Basingstoke: Macmillan, 1988) [Weeramantry]; S. P. Sinha, LegalPolycentricity and International Law (Durham: Carolina Academic Press, 1996) [Sinha]; Yas-uaki Onuma, “When Was the Law of International Society Born? An Inquiry of the History ofInternational Law from an Intercivilisational Perspective” (2000) 2 J Hist Inti L 1 [Onuma];С. H. Alexandrowicz, An Introduction to the History of the Law of Nations in the East Indies(16th, 17th, 18th Centuries) (Oxford: Clarendon Press, 1967) [Alexandrowicz]; R. P. Anand,The Legal Regime of the Sea Red and the Developing Countries (New Delhi: Thomson, 1975)[Anand 1975]; K. Krishna Rao, “The Legal Regime of the Sea-Bed and Ocean Floor” (1969)
  • [9] Indian J Inti L 1 [Rao]; A. O. Adede, “The Group of 77 and the Establishment of theInternational Sea-Bed Authority” (1979) 7 Ocean Dev & Inti L 31 [Adede]; Kamal Hossain& Subrata Roy Chowdhury, eds., Permanent Sovereignty over Natural Resources in International Law: Principle and Practice (London: Frances Pinter, 1984) [Hossain & Chowdhury];Nico Schrijver, Sovereignty over Natural Resources: Balancing Rights and Duties (New York:Cambridge University Press, 1997) [Schrijver]. 9 For a description, see Antony Anghie & B. S. Chimni, “Third World Approaches to International Law and Individual Responsibilitv in Internal Armed Conflicts” (2003) 2 Chinese J IntiL 77 [Chimni].
  • [10] The success of this strategy was limited since UN General Assembly resolutions were relegated to the category of ‘soft law’ by Western states because they did not satisfy positivistlegal requirements. See Anghie 2003, supra note 7, ch. 4.
  • [11] Usha Natarajan, “TWAIL and Environment: The State of Nature, the Nature of the State,and the Arab Spring” (2012) 14 Or Rev Inti L 177 [Natarajan 2012].
  • [12] See generally Anghie & Chimni, supra note 9.
  • [13] Gilbert Rist, The History of Development: From Western Origins to Global Faith (London: ZedBooks, 2002) [Rist]; Sundhya Pahuja, Decolonizing International Law: Development, Economic Growth, and the Politics of Universality (New York: Cambridge University Press, 2011)[Pahuja].
  • [14] Natarajan 2012, supra note 11.
  • [15] Obiora Chinedu Okator, Re-Defining Legitimate Statehood: International Law and StateFragmentation in Africa (Hague: Kluwer Law International, 2000) [Okafor]; Makau W.Mutua, “Why Redraw the Map of Africa: A Moral and Legal Inquiry” (1995) 16 Mich ] IntiL 1113 [Mutua]; Usha Natarajan, “Creating and Recreating Iraq: Legacies of the MandateSystem in Contemporary Understandings of Third World Sovereignty” (2011) 24:4 LeidenJlntl L 799 [Natarajan 2011].
  • [16] James Fearon, “Ethnic and Cultural Diversity by Country” (2003) 8 J Econ Growth 195[Fearon]; 1972 UNESCO Convention Concerning the Protection of the World Cultural andNatural Heritage [UNESCO 1972].
  • [17] Roughly translates as “you will have sovereignty over those territories you possess as of law”.See Frontier Dispute (Burkina Faso v Republic of Mali) [1986] ICJ Rep 554 [Frontier Dispute]-, Antonio Cassese, International Law (Oxford: Oxford University Press, 2001) at 57.
  • [18] Natarajan 2011, supra note 11.
  • [19] As quoted in Leela Gandhi, Postcolonial Theory: A Critical Introduction (New York: Columbia University Press, 1998) at 20-22 [Gandhi].
  • [20] Anghie & Chimni, supra note 9.
  • [21] Bhatia, supra note 5; Prabhakar Singh, “Indian International Law: From a Colonised Apologist to a Subaltern Protagonist” (2010) 23 Leiden J Inti L 1 [Singh]; Rajshree Chandra,“Understanding Change with(in) Law: The Niyamgiri Case” (2016) 50:2 ContributionsIndian Social 137 [Chandra]; Roger Merino Acuna, “An Alternative to ‘Alternative Development’?: Btien Vivinnd Human Development in Andean Countries” (2016) 44:3 Oxford DevStud 271 [Acuna],
  • [22] For examples that address contemporary Indigenous concerns, see note 21. Bhatia advocatesrecovering the historic and contemporary participation of Indigenous peoples in international law as independent sovereigns. He examines particularly the Six Nations Appeal, putforward under article 17 of the Covenant of the League of Nations for disputes between member states and non-member states, whereby the Six Nations Confederacy alleged “a menaceto international peace” and requested recognition of their independent right of home rule,an account of their trust funds and interest from the imperial government, and freedom oftransit for the Six Nations to and from international waters. Singh considers TWAIL and thehistory of Indian contributions to international law, adding a crucial but forgotten 'tribal tale’to the existing canon. Chandra also considers tribal struggles in India, looking particularly atthe Niyamgiri judgment in the Supreme Court - a situation where local tribal governmentrejected the mining project put forward by the state and transnational corporation - as aninterruption of the dominant development paradigm and more importantly as inaugurating aparticular form of lawful relations for Indigeneity. Merino studies the appropriation of Indigenous legal concepts by other actors to serve their own agendas (such as environmentalistsand state representatives), the resultant mutation of concepts and multiplicity of meanings,and the strategic re-appropriation of these terms by Indigenous peoples.
  • [23] Ibid.
  • [24] Anghie 2003, supra note 7.
  • [25] Ileana Porras, “Appropriating Nature: Commerce, Property and the Commodification ofNature in the Law of Nations” (2014) 27:3 Leiden J Inti L 641-660 [Porras 2014].
  • [26] Ibid.
  • [27] Anghie 2003, supra note 7. See also Ileana Porras, “On Terrorism: Reflections on Violenceand the Outlaw” in Dan Danielsen & Karen Engle, eds., After Identity: A Reader in Law andCulture (London: Routledge, 1995) at 294-313 [Porras 1995].
  • [28] Sherene Razack, Dark Threats and White Knights: The Somalia Affair, Peacekeeping, and theNew Imperialism (Toronto: University' of Toronto Press, 2004) at 17.
  • [29] Giorgio Agamben, State of Deception (Chicago: University of Chicago Press, 2005) at 12[Agamben 2005].
  • [30] Achille Mbembe, “Necropolitics” (2003) 15:1 Public Culture 11 [Mbembe]; Mark Ritkin,“Indigenizing Agamben: Rethinking Sovereignty in Light of the ‘Peculiar’ Status of NativePeoples” (2009) 73 Cultural Critique 88 [Ritkin]; Scott Lauria Morgensen, “The Biopolitics of Settler Colonialism: Right Here, Right Now” (2011) 1:1 Settler Colonial Stud 52[Morgensen],
  • [31] Giorgio Agamben, Homo Sacer: Sovereign Power and Bare Life (Stanford: Stanford University'Press, 1998) [Agamben 1998].
  • [32] Tia Dafnos, “The Enduring Settler-Colonial Emergency: Indian Affairs and ContemporaryEmergency Management in Canada” (2018) Settler Colonial Stud 1, DOI: <10.1080/2201473X.2018.1491157> at 3 [Dafnos],
  • [33] Ibid.
  • [34] Ibid, at 4.
  • [35] See, for example, recently in India, “Dalits in India Hold Protests against ‘Dilution’ ofSC/ST Act”(2 April 2018) Al Jazeera, online: . In Indonesia, “West Papuans DemandIndependence at Indonesia rally” (1 December 2018) Associated Press, online: ; Rob Attwell, “Massacre in Nduga: Indonesia’sPapuan Insurgency” (24 December 2018) The Diplomat, online: . In China, “Thousandsof Tibetans Protest on 60th Anniversary of Uprising against China, as State Media Defend Bei-jing’sRule”( 11 March 2019) Associated Press, online: ; Emily Feng,“Crackdown in Xinjiang: Where Have All the People Gone?” (5 August 2018) FinancialTimes, online: .
  • [36] In the TWAIL context, see Valerie Phillips, “Indigenous Peoples and the Role of the Nation-State” (2007) 101 Proceedings of the ASIL Annual Meeting 319, as discussed and contrastedwith other scholars in Bhatia, supra note 5 at 157-158. More generally, see Clare Land,Decolonizing Solidarity: Dilemmas and Directions for Supporters of Indigenous Struggles (Lon -don: Zed Books, 2003) [Land].
  • [37] See, e.g., Ruben Gonzalez-Vicente, “Mapping Chinese Mining Investment in LatinAmerica: Politics or Market?” (March 2012) 209 China Q 35 as part of special issue“From the Great Wall to the New World: China and Latin America in the 21st Century”;Neil Renwick, Jing Gu & Song Hong, “China and African Governance in the ExtractiveIndustries” (2018) 10:1 Inti Dev Pol’y, DOI: <10.4000/poldev.2547>; Jennifer C. Li,“China’s Rising Demand for Minerals and Emerging Global Norms and Practices in theMining Industry” (2006) Foundation for Environmental Security and Security (FESS)Working Paper No. 2.
  • [38] Lawrence & Dua, supra note 22 at 131.
  • [39] Ibid, at 136.
  • [40] Ibid, at 137.
  • [41] Ibid, at 128.
  • [42] Montevideo Convention on the Rights and Duties of States.
  • [43] E. Tuck & K.W. Yang, “Decolonization Is Not a Metaphor” (2012) 1 Decolonization: Indi-geneity, Education & Society 1 [Tuck & Yang].
  • [44] The top six Google auto-suggestions when searching ‘decolonizing’ (accessed 17 June 2019).
  • [45] Tuck & Yang, supra note 45 at 21.
  • [46] Ibid.
  • [47] A. Jacobs, “Undoing the Harm of White Supremacy” (Master’s thesis, The Gallatin School,New York University, 2009) as quoted in Tuck & Yang, supra note 45 at 21.
  • [48] Ibid.
  • [49] See note 46.
  • [50] Tuck & Yang, supra note 45 at 21.
  • [51] Ibid, at 29.
  • [52] Paolo Freire, Pedagogy of the Oppressed (New York: Continuum, 2000) at 42 [Freire].
  • [53] Tuck & Yang, supra note 45 at 29.
  • [54] Freire, supra note 54.
  • [55] Tuck & Yang, supra note 45 at 20.
  • [56] Aimc CCsairc, Discourse on Colonialism (New York: Monthly Review Press, 2000) at 32[Cesaire].
  • [57] Ibid.
  • [58] Ibid.-, Frantz Fanon, The Wretched of the Earth (New York: Grove Press, 1963) [Fanon]; seediscussion in Tuck & Yang, supra note 45 at 20.
  • [59] Fanon, supra note 60.
  • [60] Ibid.
  • [61] Tuck & Yang, supra note 45 at 16.
  • [62] Bhatia, supra note 5 at 131-134.
  • [63] Vine Deloria, “Foreword” to George Manuel & Michael Posluns, The Fourth World: AnIndian Reality (1974) at 5-6, as quoted in Bhatia, supra note 5 at 136.
  • [64] Tuck & Yang, supra note 45 at 16.
  • [65] People of Color Environmental Leadership Summit, Principles of Environmental Justice, 24-27 October 1991, Washington DC, online:
  • [66] Ibid, (emphasis added).
  • [67] Usha Natarajan, “Environmental Justice in the Global South” in S. Atapattu, C. Gonzales &S. Seek, eds., Cambridge Handbook on Environmental Justice (New York: Cambridge University Press, forthcoming 2020).
  • [68] Bhatia, supra note 5 at 159.
  • [69] Lawrence & Dua, supra note 22 at 122.
  • [70] See note 21.
  • [71] M. Ford, ed., Social Activism in Southeast Asia (London: Routledge, 2013) [Ford]; A. Kal-land & G. Persoon, eds., Environmental Movements in Asia (Richmond: Curzon Press,1998) [Kalland & Persoon].
  • [72] Lawrence & Dua, supra note 22 at 130.
  • [73] To take the best known examples of climate change and biodiversity loss, despite thesetwo crises being the focus of sustained international law attention since the 1990s, half ofall greenhouse gases currently in the atmosphere were emitted in the last 30 years (PeterFrumhoff, “Global Warming Fact” (15 December 2014) Union of Concerned Scientists,online: ) and one million species are now at risk of extinction (IntergovernmentalScience-Policy Platform on Biodiversity and Ecosystem Services (IPBES) Media Release (10May 2019), online: .
  • [74] See for example, under the United Nations Framework Convention on Climate Change(UNFCCC), Clean Development Mechanisms and carbon trading tailing under the flexibleand joint-implementation mechanisms of the Kyoto Protocol to the UNFCCC, and REDD+developed by UNFCCC state parties.
  • [75] J. Hickel & G. Kallis, “Is Green Growth Possible?” (2019) New Political Economy 1.
  • [76] Rist, supra note 13.
  • [77] U. Natarajan & K. Klioday, “Locating Nature: Making and Unmaking International Law”(2014) 27 Leiden Journal of International Law 573.
  • [78] Rist, supra note 13; V. Argyrou, The Logie of Environmentalism: Anthropology, Ecology andPostcoloniality (New York: Berghahn, 2005) [Argyrou].
  • [79] U. Natarajan & J. Dehm, “Where Is the Environment? Locating Nature in InternationalLaw” (2019) 3 TWAILR Reflections, online: .
  • [80] Ley de Derechos tie la Madre Tiara, online: .
  • [81] Те Aiva Tupua (Whanganui River Claims Settlement) Act 2017, online: .
  • [82] European Union, Trade in Seal Products: Scope of the EUSeal Ban, online: .
  • [83] Louise van Schaik, Stefano Sarris & Tobias von Lossow, “Fighting an Existential Threat:Policy Brief Small Island States Bringing Climate Change to the UN Security Council”(March 2018) Planetary Security Initiative Policy Brief, online: .
  • [84] Rights of Nature Tribunals often occur alongside major international summits: online:.
  • [85] World People’s Conference on Climate Change and the Rights of Mother Earth: Building thePeople’s World Movement for Mother Earth, online: ; Peoples’ Summit on Climate Change COP20 (27 September 2014), online: .
  • [86] Global Witness, At What Cost? Defenders Annual Report 2017, online: .
  • [87] Dianne Otto, “Subaltcrnitv and International Law: The Problems of Global Community andthe Incommensurability of Difference” (1996) 5:3 Soc & Leg Stud 337 [Otto].
  • [88] Argyrou, supra note 79.
  • [89] Tuck & Yang, supra note 45 at 20.
  • [90] Ibid.
  • [91] Ibid.
  • [92] Audre Lorde, Sister Outsider: Essays and Speeches (Trumansburg, NY: Crossing Press, 1984)at 36-37 [Lorde],
  • [93] Ibid, at 38.
  • [94] John Borrows, “Earthbound: Indigenous Resurgence and Environmental Reconciliation”(publication forthcoming, on tile with author) at 1-3.
  • [95] Ibid, at 5-6.
  • [96] Ibid, at 6-7.
  • [97] Ibid, at 7-8.
  • [98] Ibid, at 9-11.
 
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