A TWAIL READING OF THE ARAB SPRING: Reflections on Sovereignty over Natural Resource

AUTHOR

Name:                      Usha Natarajan

Age:                         35

Address:                  Department of Law

                                 The American University in Cairo

                                 AUC Avenue, PO Box 74, New Cairo 11835,

                                Egypt

E-Mail:                    UNatarajan@aucegypt.edu



 

R.P. ANAND ESSAY COMPETITION


A TWAIL READING OF THE ARAB SPRING:

Reflections on Sovereignty over Natural Resources


 

Abstract

 

Drawing inspiration from Anand’s work, this essay takes a Third World approach to understanding the Arab Spring. This essay places the Arab Spring in the context of a long history of struggle to control natural resources. A significant part of this struggle has taken place in the legal arena, with enduring consequences both for international law and the Third World. Such contextualization will help bring attention to neglected but crucial environmental aspects of the Arab Spring. It also allows an opportunity for self-reflection on how TWAIL has engaged with environmental issues – issues which are the subject of increasing attention in the Third World today.

 

I. INTRODUCTION

 

The scholarship of Professor R.P. Anand has inspired me for many years. Anand’s extensive research spanned several decades and diverse areas of international law. However, the consistent and crosscutting theme remained his fascination with exploring the relationship between two ideas, that of international law, and that of the Third World. He was a seminal figure in introducing new narratives about this relationship. In the 1960s, Third World states were treated as newcomers to the international family of nations. At a time when strong Third World voices were uncommon in the international law discipline, he successfully and compellingly told the complex history of the Third World’s relationship with international law, and advocated for postcolonial engagements that undid destructive patterns of the past.

 

As a pioneer of the Third World Approaches to International Law or TWAIL movement, his work inspired multiple generations to build on his endeavors to give a voice to untold stories about the Third World’s engagements with international law. For instance, in a recent publication, Anand traces India’s relationship with international law revealing a dynamic rather than submissive interaction, where India both contributed insights to and received insights from the evolving discipline.[1] The same could be said of Anand himself. While his work made a brave, profound and telling critique of international law, he remained faithful to the possibilities that international law holds out for global justice.

 

In his investigation into India’s history of international law, Anand began by identifying the origins of law in the Arab world in Iraq and Egypt.[2] It is interesting to speculate on what he would have thought of the uprisings across the Arab region against long-standing autocratic regimes, a phenomenon often referred to as the Arab Spring. In many ways, the youth in the Arab world have a sense of being part of their own independence movement today, recalling the postcolonial state’s independence moment. Where will the Arab Spring look to for inspiration in rethinking the nature of governance and the state so as to fruitfully rebuild their societies? How will they envision participating in the international system given the complicity of international law and international institutions in causing many of their problems, and the concomitant heavily negative perception of international law in the Arab world?

 

Drawing inspiration from Anand’s work, this essay takes a Third World approach to understanding the Arab Spring. TWAIL readings of the Arab Spring could potentially focus on a variety of issues, such as the region’s geostrategic importance for world powers, continual Western military and economic intervention into the region, the prevalence of longstanding autocratic regimes, the region’s symbolic importance for many world religions, and so on. Instead, this essay places the Arab Spring in the context of a long history of struggle to control natural resources. A significant part of this struggle has taken place in the legal arena, with enduring consequences both for international law and the Third World. Such contextualization will help bring attention to neglected but crucial environmental aspects of the Arab Spring. It also allows an opportunity for self-reflection on how TWAIL has engaged with environmental issues – issues which are the subject of increasing attention in the Third World today.

 

Part Two introduces the TWAIL movement and describes what it means to take a Third World approach. Part Three considers TWAIL scholarship on the environment, which in its early years focused on natural resources, then went through a period of disengagement, with a current resurgence of interest. Part Four analyzes the implications of international law and TWAIL understandings of natural resources for the Arab Spring. Based on this analysis, Part Five draws conclusions on useful legal responses to the Arab Spring and contemplates the TWAIL movement’s future engagement with environmental issues.

 

II. TWAIL

 

The acronym TWAIL first emerged from the ‘New Approaches to International Law’ or NAIL movement in the mid 1990s. NAIL was the intellectual project of an association of academics in the United States interested in investigating the international law discipline as a ‘legal intelligentsia with its own cultural politics and will to power’.[3] The term TWAIL was initially coined by a group of NAIL scholars commited to furthering Third World interests. However, the acronym soon expanded to encompass the significant amount of such scholarship that already existed before the 1990s, which served as a foundation and inspiration for the 1990s movement. Since then, the movement has grown to include scholars that have self-identified with TWAIL and share its political commitment to addressing Third World issues.

 

The term Third World[4] has been used interchangeably with the terms less-developed, developing, underdeveloped, or the global South to refer to those states and peoples that are marginalised in international society and lagging behind in terms of economic growth and prosperity.[5] Third World states have sometimes formed political coalitions, such as the Group of 77 (G-77) or the Non-Aligned Movement, and Third World peoples have also been loosely linked at various times by social movements of protest by the poor against the rich.[6] Mwalimu Julius Nyerère described the Third World as the majority of the world’s population, possessing the largest part of certain important raw materials, and yet having no control and hardly any influence over the manner in which nations of the world arrange their economic affairs.[7]

 

In the late twentieth century, when many Third World states such as South Korea, Taiwan, Brazil, Hong Kong and Singapore successfully developed an export-oriented process of industrialisation, analysts began to declare that the Third World no longer existed.[8] Rapid economic growth in China and India raises the same issue today. The term Third World has also been criticised given the growing diversity amongst Third World states and the fracturing and reshaping of alliances between them. Some scholars have argued that the concept of Third World may camouflage the differences between and within these nations. Hardt and Negri famously declared that globalisation had made the Third World obsolete as there is a First World in every Third World, and a Third in the First, and the Second almost nowhere at all.[9]

 

TWAIL scholars have had to negotiate these issues continually from the very early years of the movement. Anand observes of the Third World that:[10]

 

they cover a whole range of economic, political and cultural diversities, even antagonisms. The family of underdeveloped countries include both producers and consumers of energy, importers and exporters of raw materials, nations which can feed their populations as well as those which almost always face the spectre of famine. They differ among themselves so greatly in economic promise that they are sometimes divided into ‘third’, ‘fourth’ or ‘fifth’ worlds. In fact, for many purposes it is more misleading than illuminating to lump together Asia, Africa, and Latin America. And yet, for a variety of purposes all these countries perceive themselves as a group, a perception made more impressive because it overcomes an underlying, undeniable diversity.

 

His insights remain true for the current generation. Many decades after Professor Anand helped pioneer TWAIL scholarship, the movement continues to grow because of its continuing relevance for young scholars from across the First and Third World divide. In contemporary gatherings of critical international lawyers at conferences and workshops, young international lawyers from Latin America, Africa and Asia, and indeed the West, are still drawn together by shared concerns for the poorest and most vulnerable people in their societies, finding common patterns of domination and subordination and usefulness in working together.

 

The endurance of TWAIL is partly attributable to the way the term Third World has been employed by TWAIL scholars, with an awareness of its flexible porous meanings. Indeed, TWAIL scholarship has helped highlight that there are no rigid boundaries between the colonised and the colonisers, or between the Third World and the West. The identities of victor and victim were rarely pure in colonial times, and the postcolonial world has seen a continuation of mutual cultural transference and an increasing hybridity of cultures and identities.[11] Rather than claiming that inflexible boundaries exist between the West and the Third World, much of TWAIL scholarship endeavors to break down these boundaries and contest any claims to the stability of meaning and identity. TWAIL scholars have understood colonialism as a cultural project of control. Colonised societies were classified and labelled. New distinctions and oppositions came into being between colonisers and colonised, Europe and Asia, modern and primitive, and West and East.[12] One of the purposes of TWAIL is to complicate contemporary understandings of the Third World, rejecting simplistic characterisations of Third World states and peoples. As Baxi has observed, long before Hardt and Negri identified globalisation as scrambling the composition of the Three Worlds, scrambling had already occurred by means of centuries of colonialism.[13]

 

Within the TWAIL movement, Third World has evolved to mean more than just the traditional coalition of states. It also includes Third World peoples, social movements, non-government organisations, and other non-state actors.[14] As Darby has pointed out, while the term Third World may be problematic, the alternatives are too, and it is hard to do without the category as it provides the ‘conceptual tripwire against colonising tendencies of much dominant discourse’.[15] It is a term and a concept that aids counter-hegemonic discourse.

 

III. TWAIL AND THE ENVIRONMENT

 

Environmental issues have not been a primary focus of TWAIL scholarship since the acronym was first espoused in the mid 1990s. This was not always the case amongst international lawyers advocating for Third World issues, and it is unlikely to remain the case in the future. In the 1960s and 1970s, many Third World international lawyers concentrated on environmental issues such as control over natural resources and the fair sharing of resources outside sovereign territories. Environmental principles, including the doctrine of permanent sovereignty over natural resources and the common heritage of mankind, were at the heart of early Third World law reform movements.

 

Early TWAIL scholarship in the post-independence era proceeded on the basis that newly-independent states would embrace only those parts of international law that were consistent with their sovereignty.[16] This assumption was based on the norms of sovereign equality and non-intervention.[17] Newly-independent Third World states were hopeful that the formation of the United Nations, and the liberal precepts of equality, freedom and neutrality that it embodied, would help them participate in international law. TWAIL scholars in the decolonisation era wanted to emphasise that the Third World was engaged with international law. The Third World had contributed and was capable of continuing to contribute to a system of global order.[18] These scholars hoped Third World legal traditions could be integrated into the existing system through participation in formation of the sources of law.[19]

 

Despite the endeavours of TWAIL scholars over the last sixty years for Third World participation in the international legal system, international courts and tribunals have not significantly drawn on non-Western legal traditions in the administration of international justice.[20] However, Third World states have participated in the law-making process in some important ways. Perhaps the most notable of these has been the creation of the right to self-determination.[21] Third World states also contributed to outlawing apartheid and racism in modern international law, turning away from the law’s colonial past. Other legal concepts that Third World states played a significant part in formulating include the notion of the common heritage of (hu)mankind; the doctrine of permanent sovereignty over natural resources; peaceful and friendly relations among states; social, economic and cultural rights; the right of development for all states and peoples; and the principle of common but differentiated responsibility for the global environment.[22]

 

In the 1960s and 1970s, there was a Third World movement to inaugurate a New International Economic Order (NIEO) to improve Third World participation in the global economy. In 1945, when the Charter of the United Nations was drafted in San Francisco, the Charter clearly located responsibility for economic matters within the UN in order to regulate the increased number of nation states in the newly-decolonised world.[23] Nevertheless, Western powers were committed to a separate system, formulated at Bretton Woods, to regulate economic matters. Third World international lawyers argued this was contrary to explicit Charter provisions, alleging the West was pursuing a conscious policy to keep economic matters out of the UN General Assembly where Third World states could participate as equals.[24]

 

Third World states in a political coalition called the G-77 attempted to reform the economic system by passing resolutions in the UN General Assembly where they had superior numbers.[25] These resolutions asserted Third World states’ control over their natural resource wealth, propounding a doctrine of permanent sovereignty over natural resources. Mohammed Bedjaoui provided much of the legal basis for the NIEO in his seminal work, Towards a New International Economic Order, criticising the imperial nature of international law.[26] However, at the same time, the legal argument for a NIEO called for economic cooperation to be removed ‘from the field of good faith and … [moved] to the legal sphere’.[27] Alongside rejecting the imperial international legal system, Bedjaoui simultaneously called for economic matters to be regulated by international law. While criticising dominant views of law, Bedjaoui nonetheless expressed faith in the determinacy of law.

 

The attempt to reform the international economic system and international law ultimately failed. Some scholars have attributed the failure of the NIEO to internal inconsistencies in argument where the G-77 took up a seemingly oppositional stance but at the same time uncritically embraced the underlying precepts of the existing system.[28] Paradoxically, it was probably the G-77’s reliance on accepted legal argument and discourse that gave this challenge a voice in the international arena and made it possible to argue, albeit unsuccessfully, for so radical a proposal.

 

Early TWAIL scholars had embraced the transformative potential of the law. Yet reforms such as the NIEO were not adopted despite their basis on the values of equality and the rule of law which international law claims to promote.[29] Failed reform attempts by early TWAIL scholars inspired the search for a stronger mode of critique by those TWAIL scholars emerging out of the NAIL movement in the 1990s. More recent TWAIL scholarship has attempted to understand why so many apparently liberal and neutral international law projects have not delivered on their promise.[30] Some scholars have pointed to the futility of attempting reform within the existing international law framework, claiming that lack of success in the past is evidence that the system itself is complicit in subjugation of the formerly colonised peoples.[31] They have argued that concepts that seem ostensibly open and neutral actually help to further inequalities in contemporary international relations, albeit in an unstated way.[32] Therefore, these scholars have attempted to identify how bias is embedded into the discipline, perpetuating ongoing structural violence towards the Third World.

 

More recent TWAIL scholarship has also proclaimed a shift in focus to the actualised experience of Third World peoples rather than Third World states. Early TWAIL scholarship frequently relied on principles of non-intervention and sovereignty in its attempts to empower Third World states. However, this tactic became increasingly unpopular, not only because of its lack of success in instituting more equal relationships between states, but also because TWAIL arguments were co-opted and manipulated by powerful elites in the Third World who used anti-Western sentiment to ‘cover up contemporary faults, corruptions, tyrannies’.[33] The sovereignty and non-intervention principles were used as shields by some Third World governments, including many Arab regimes, while they perpetuated injustices on their own peoples. Therefore, more recent TWAIL scholars have maintained that ‘it is sometimes through supporting the Third World state and at others, by critiquing it, that the interests of Third World peoples may be advanced’.[34] The work of Balakrishnan Rajagopal has broken new ground in this regard, focusing on how international law affects and is affected by the Third World, not just on the state level, but at the grass roots level.[35]

 

While TWAIL pioneers such as Anand focused on natural resource sovereignty, and fair sharing of resources from common areas such as the deep sea bed,[36] the more critical strain of TWAIL scholarship that emerged in the 1990s did not deeply engage with environmental or natural resource issues. The birth and evolution of international environmental law – from the 1972 Stockholm Conference through the 1992 Rio Earth Summit and the 2002 Johannesburg Conference to more recent summits in Copenhagen and Durban – has been accompanied by an increasing divide between the Third World and the West on environmental issues. The lack of TWAIL scholarship on environmental matters in recent decades may be attributable to an intellectual ambivalence about international environmental law, and whether the embryonic field was helpful for promoting the interests of Third World peoples. As Anand observes,[37]

 

There are sharp and bitter differences between the developed and the under-developed, the rich and the poor, the satiated and the hungry … as the ways of life and consumer habits of the rich countries and their people are transmitted to the remotest corners of the Third World … ambitions to imitate them naturally arise … the poor countries have come to realize that the only way to alleviate themselves from long and humiliating servitude is to achieve an industrial base … like those in North American and Europe, irrespective of environmental effects … The ecologists are horrified to imagine the risk on the human horizon if more than two-thirds of the ‘wretched of the earth’ were also to try and live like Europeans or Japanese or sought American standards. Between the chains of poverty in the Third World and the shackles of affluence in the developed countries, the future seems a prison to many intellectuals.

 

However, contemporary TWAIL scholarship is reengaging with environmental issues in a trend that is likely to increase sharply in coming years. Dominant development patterns coupled with population growth will lead to increased resource consumption and pollution and waste, causing both resource scarcity and ecological crises. As the last remaining pockets of many natural resources exist in the Third World, and as poorer regions are more vulnerable to ecological crises, international environmental law will become an ever more strategic site from which Third World peoples, movements, scholars and states can contest, negotiate and resist international economic and development paradigms. Today, Third World social movements are increasingly harnessing environmental issues as an opportune means of challenging fundamental assumptions that underpin capitalism and development. The shift is also evident amongst TWAIL scholars, with environmental issues garnering a significant increase in attention in recent TWAIL conferences and publications.[38] Environmental crises such as climate change and biodiversity loss evidence the limits of contemporary understandings of the global economy and the unsustainability of economic models that do not take into consideration natural limits to growth.

 

Anand’s scholarship was prophetic in this regard, making striking and broad observations about global environment and development trends. He wrote in 1987, before the Rio Earth Summit and rise to prominence of international environmental law, that [39]

 

the principal cause of environmental pollution is industrialization and indiscriminate application of science and technology to economic development … In short, the two worlds of humans – the biosphere of their inheritance and the technosphere of their creation – are not in balance and indeed in deep conflict.

 

He identified the unsustainability of the Western development model, and acknowledged that the Third World states’ replication of this model would only hasten the day of reckoning. He stated,[40]

 

[i]t is hoped that an increasing understanding of planetary interdependence and the earth's natural systems on the part of the rich nations can help strengthen the vision of human family and encourage them to help and aid the poor nations in their efforts to protect improve their part of the global household. The new ecological imperative can surely give humankind a new vision and incentive for cooperation at various levels.

 

In the contemporary context, with the reemergence of economic powers such as China and India – states that have an increasing role in shaping the global environment – there is potential for alternative cultures, understandings and new voices to emerge that can help rethink what development really means, and reshape the unsustainable development trajectories of the past. 

 

As a younger generation of TWAIL scholars reengages with environmental issues, it scrutinizes the strategies that Third World international lawyers such as Anand employed in their efforts to use or reform international law for the benefit of the Third World, with a view to replicating successes and avoiding pitfalls of the past. What do Anand’s ideas and scholarship mean for the major challenges the Third World faces today? What does it mean for climate change, what does it mean for natural resource scarcity, what does it mean for ideas of common property in the Arctic, the sea, and in outer space? We have much to learn from his scholarship and advocacy as he struggled with the same issues, albeit in a very different context, in the early years of the NIEO and the doctrine of permanent sovereignty over natural resources. With regard to the Arab Spring, many of problems facing Arab peoples today are a legacy of early postcolonial efforts to assert sovereignty and independence. The region’s rich natural resource wealth never translated into real benefit for most Arab peoples. Thus the issue of sovereignty over natural resources has to be grappled with again and rethought so as to meaningfully respond to the demands of the Arab Spring.

 

IV. THE ARAB SPRING

 

The United Nations Development Programme’s 2010 Human Development Report records that Arab states have led the world in terms of improvements in human development over the past forty years. Development improvements in leading states such as Oman, Saudi Arabia, Tunisia, Algeria, Morocco and Libya were not solely in terms of increased gross domestic product, but were primarily in terms of improving access to health and education. Despite such progress, the region has witnessed a wave of popular uprisings challenging state systems. The natural environment plays a seminal role in shaping systems of governance and law. Understanding this link not only illuminates why development gains have been unable to assuage popular dissatisfaction, but also how the development process can itself breed widespread discontent.

 

Political analysts have sought for common threads across the numerous uprisings in the Arab region, to formulate effective responses to the dissatisfaction expressed en masse in streets and squares from north Africa (Morocco, Algeria, Tunisia, Libya, Egypt, Jordan and Syria) to the Arabian peninsula (Bahrain, Saudi Arabia, and Yemen). As all these movements challenge state legitimacy, many scholars and commentators have pointed to the region’s lack of civil and political rights, giving the populace neither protection from the state nor means of holding the state accountable. While this is undeniably the case across the Arab world, why is it so and how did it come about? What is the role of international law in this story? Part of the answer lies in the role of the natural environment in shaping governance. Nature has played an important role in shaping the modern sovereign state, and the relationship between the state of nature and the nature of the state has been particularly telling in Arab world.

 

From the region’s vast oil and gas fields, to its increasingly scarce water and arable land, the natural environment has profoundly shaped political and development trajectories. Indeed, the genesis of many Arab states stems from colonial powers drawing state boundaries on the basis of known oil reserves.[41] The Western idea of the modern state brought to the region not only boundaries but the assertion of state control over nature as the basis for modernity and progress. As E.B. Tylor, a Victorian anthropologist, observed in 1847, ‘acquaintance with the physical laws of the world, and the accompanying power of unlocking the secrets of nature and adapting nature to mans own ends, are on the whole, lowest among savages, mean among barbarians, and highest among modern educated nations.’[42] Scholars and philosophers of the European Enlightenment philosophers often understood Third World societies as being trapped in ‘state of nature’, in contrast with the European state of modernity.

 

The modern nation state was to be the conceptual vehicle that would help the Third World escape its predicament. The nation state was tied to particular understanding of development, and postcolonial states were imbued with civilizing mission, where developmental progress was equated with the degree of state control over nature. Human development was assumed to progress from nomadic to pastoral, to agricultural, and finally industrial and post industrial production modes, as societies perfected over time their ability to efficiently exploit natural resources. During the European Enlightenment, the conquest of nature and growth of industry became accepted as the destiny of all societies, because it was seen as the best way to meet the greatest variety of human needs. Thus, Jean-Baptiste Say observed in 1828, ‘[e]ither they will become civilized or they will be destroyed. Nothing can hold out against civilization and the powers of industry. The only species to survive will be those that industry multiplies.’[43]

 

The legal order of the nation state was based on the environment being a domain of utility, to be mastered and brought under man’s control, compelled to satisfy his needs and administer to his happiness. Nature was devoid of a spirit, and was a standing reserve of resources for humanity to serve its development. Alternative understandings of nature were seen as either primitive or degenerate. International law and its central concept of state sovereignty was a celebration of mastery over nature and the escape from primitivism. Whether through international laws, such as those governing title to territory, or domestic laws such as the principle of eminent domain, the modern nation state is founded on the ability to assert both physical control and legal authority over territory. Postcolonial legal systems had to evolve to enable the increasingly efficient exploitation of nature, through appropriate systems of land tenure, private property, contracts and torts.

 

During the Enlightenment, control over one’s external environment also became equated with inner freedom and the ability to truly be a liberated human being. Henry Thomas Buckle observes in his History of Civilization in England in 1878 that ‘the primary cause of its superiority over other parts of the world is the encroachment of the mind of man upon the organic and inorganic forces of nature’.[44] Civilization and legal order were a triumph over both external nature and human nature: a conquest of both the primitive man and his primitive environment. Thus, conquest of nature became one of the foundational myths of modernity, tied to humanity’s spiritual freedom. Leading thinkers such as John Locke identified the absence of transformation of the natural environment as evidencing a lack of reason itself.[45] Similarly, Karl Marx argued that ‘Man made himself and was himself only so far as he re-made the world around him’.[46]

 

When Third World states achieved independence through sovereign statehood, the concept of the nation state brought with it fundamental assumptions about nature that shaped governance and law. It was within this context that, at the height of Cold War, the Non-Aligned Movement asserted the doctrine of permanent sovereignty over natural resources as part of its effort to break away from colonial patterns of resource exploitation. While Western knowledge and expertise were purchased to enable efficient exploitation of natural resources, postcolonial states remained wary of overdependence on the West. The Arab region’s natural wealth, especially with regard to hydrocarbons that fuel much of world industry and trade, helped achieve development gains in the region. However, it simultaneously built up and cemented power of unrepresentative governing elites. Although permanent sovereignty over natural resources was a revolutionary doctrine, and an integral part of the New International Economic Order, the same idea was used by Arab governing elites to consolidate their own power. Political authority and statecraft was intimately intertwined with keeping both natural resources, and the science and technology used to harness them, firmly under state control. The conquest of nature went hand in hand with establishment of unitary and autocratic states.[47]

 

Not only did struggle for sovereignty over natural resources shape the nature of Arab states, it remains at the root of contemporary societal tensions. In Iraq, benefit-sharing from energy is the backdrop for unresolved disputes over constitutionalism, federalism and regional autonomy. In Egypt, forty per cent of the population lives under the national poverty line, largely because the rural and urban poor lack access to decision-making regarding natural resources on which their livelihoods depend, whether in fishing, farming, cotton, or the oil and gas industries. In Sudan, in the separation of North and South, the most contentious issues remain disputes over oil, water, and rangelands. Perhaps most pressing issue facing region is water shortage. In Yemen, the Arab region’s poorest state, water scarcity has reached emergency proportions and is the main bottleneck to equitable and sustainable development. In Syria, severe drought has pushed parts of the population to migrate. In Syria and Jordan, there are protests over equitable access to drinking water and irrigation. In Saudi Arabia, there are protests over flooding and environmental infrastructure.

 

In addition, there are the well known cases of the oil economies of Saudi Arabia, Kuwait, Iraq and Libya. Oil exports are the foundation of these nations’ social welfare and development gains. Their reserves are declining at a time of rapid population growth. Arab states are facing a youth population bulge and large levels of youth unemployment. As countries seek to boost employment through industrial growth, their energy intensity rises dramatically. In Saudi Arabia, currently 3 out of 10 million barrels per day are used in the local economy and the rest is exported. By 2030, this could rise to 7 million barrels per day for local use. Thus, oil economies are seeking to reduce the energy intensity of their growth so as to save scarce resources for security of future generations.

 

Unemployment combined with spiking food prices were an important factor in spurring the 2011 Arab protests. The rise in food prices was partially attributable to climate impacts on global food production, with record droughts in Russia and flooding in Australia in 2010. In the coming decades, North Africa is expected to see some of worst impacts of climate change. In many Arab states, an unusually high proportion of household incomes is allocated to the purchase of food – more than 35 per cent in Tunisia and Egypt. As UN Secretary-General Ban Ki-moon observed in 2007, ‘when resources are scarce – whether energy, water or arable land – our fragile ecosystems become strained, as do the coping mechanisms of groups and individuals. This can lead to breakdown of codes of conduct’.[48]

 

V. CONCLUSION

 

The Arab world’s looming challenge is one of environmental and political sustainability. Its natural resources are dwindling at a time when its population is rapidly expanding. Environmental and natural resources issues must be prioritized in order to meet the Arab Spring’s demands for equity and justice. The region’s most poor and vulnerable depend on having a resilient natural asset base for their livelihoods. Given the onset of environmental crises, the capacity to adapt and cope with ecological change is also becoming increasingly important. While the rich receive disproportionate benefit from exploitation of natural resources, the poor bear a disproportionate burden of scarcity, pollution, and environmental crises.

 

As the Arab region calls for a new era of more inclusive governance, communities look to the law, both international and domestic, as the means of remedying historical disempowerment. Protestors have called for end to the thievery of public wealth by ruling elites, demanding punishment, transparency, accountability and remedy. There is also a renewed spirit of constitutionalism – a review of fundamental principles in order to inaugurate new power dynamics and place limits on state power. However, as discussed above, the law has in many ways been complicit in creating the inequity and ecological decay that the region finds itself in today. To meet rising demands, the concept of sovereignty over natural resources must transcend nation state paradigm and reside with the Arab peoples in a meaningful way. The dominant development paradigm, and its indicators of progress, declared many Arab states to be human development success stories, masking the dark underbelly of development processes now surfacing in mass movements across the region.

 

Postcolonial states spared no effort in ‘leapfrogging across the centuries’ to become industrial states. Today, ecological change presents an existential threat. States and peoples in First and Third Worlds look over their shoulders at progress made and question evolutionary certainties and one-way determinism. As Amartya Sen observed, ‘the solutions to problems of public goods (such as the environment) will almost certainly call for institutions beyond capitalist market economy’. Lasting solutions to the demands of the Arab Spring will need to address not only civil and political rights but also rethink fundamental assumptions about what it means to be a state. Central to this process is addressing the role of the natural environment in postcolonial state formation, and how the ability to control nature became an assumed attribute of both sovereignty and development. We need to address underlying features of our political economy by rethinking the Enlightenment inheritance. Is the assertion of control any longer a meaningful, helpful, or indeed accurate, understanding of humanity’s relationship with nature? Anand advises that ‘man must learn to live with nature rather than trying to conquer it’.[49]

 

Young international lawyers in the Arab world are increasingly drawn to Third World and postcolonial approaches to international law, not only because the mainstream international law discourse fails to explain their lived experience, but also because they are searching for new strategies for engaging with the international sphere. Past efforts in the 1960s and 1970s to strengthen the sovereignty of Third World states led only to a profound lack of sovereignty for most Arab peoples. Doctrines such as permanent sovereignty over natural resources are yet to be realized in a meaningful way in a region where most have little say in what is done with either wealth-creating resources such as oil and mineral wealth, or dwindling essentials such as water and arable land. Thus, Anand’s work serves as an inspiration to a younger generation of Third World international lawyers not only because his arguments were compelling and his insights clear, but because many of the issues he advocated for are yet to be fully realized. We need to learn from and build upon the work of the eminent scholars of the past and continue to interrogate and push disciplinary boundaries.

 



[1]     R.P. Anand, Development of Modern International Law and India (2006).

[2]     Ibid 1.

[3]     David Kennedy, ‘When Renewal Repeats: Thinking against the Box’ (2000) 32 New York University Journal of International Law and Politics 335, 489.

[4]     The term ‘Third World’ is credited to the French demographer Albert Sauvy who drew an analogy with the Tiers État within French society in order to address the marginalised and oppressed among the population: La terre et les hommes: le monde où il va, le monde d il vient (1990 ed) 41.

[5]     Karin Mickelson, ‘Rhetoric and Rage: Third World Voices in International Legal Discourse’ (1998) 16 Wisconsin International Law Journal 353, 356.

[6]     Ibid 357.

[7]     Julius Nyerère, ‘South-South Opinion’ in Altaf Gauhar (ed), The Third World Strategy: Economic and Political Cohesion in the South (1983) 9, 10.

[8]     See eg Nigel Harris, The End of the Third World (1987); Mark T Berger, ‘The End of the Third World’ (1994) 15 Third World Quarterly 257 and ‘The End of the Third World? History, Destiny and the Fate of Third Worldism’ (2004) 25 Third World Quarterly 9.

[9]     Michael Hardt and Antonio Negri, Empire (2000) 263-4.

[10]    R.P. Anand, Confrontation or Cooperation? International Law and the Developing Countries (1987) 120.

[11]    Leela Gandhi, Postcolonial Theory: A Critical Introduction (1998) 126, 131, 137.

[12]    Nicholas Dirks, Castes of Mind: Colonialism and the Making of Modern India (2001) 9.

[13]    Hardt and Negri, above n 9; Upendra Baxi, ‘What May the “Third World” Expect from International Law?’ (2006) 27 Third World Quarterly 713, 717: He gives the examples of enforced diasporas of labouring classes, slavery, slave-like labour, forced relocations and so on.

[14]    Balakrishnan Rajagopal, ‘Counter-Hegemonic International Law: Rethinking Human Rights and Development as a Third-World Strategy’ (2006) 27 Third World Quarterly 767, 767.

[15]    Philip Darby, ‘Pursuing the Political: A Postcolonial Rethinking of Relations International’ (2004) 33 Millennium: Journal of International Studies 1, 2-3.

[16]    See Antony Anghie and BS Chimni, ‘Third World Approaches to International Law and Individual Responsibility in Internal Conflicts’ (2003) 2 Chinese Journal of International Law 77. Anghie and Chimni include in this early group Georges Abi-Saab, F Garcia-Amador, RP Anand, Mohammed Bedjaoui, Taslim O Elias, CH Alexandrowicz, Richard Falk, Nico Schrijver, and PJIM de Waart.

[17]    Charter of the United Nations arts 2(1), 2(7).

[18]    See eg CH Alexandrowicz, An Introduction to the History of the Law of Nations in the East Indies (16th, 17th, 18th Centuries) (1967); RP Anand (ed), Asian States and the Development of International Law (1972); Christopher Weeramantry, Islamic Jurisprudence: An International Perspective (1988); SP Sinha, Legal Polycentricity and International Law, 1996; Yasuaki Onuma, ‘When was the Law of International Society Born? An Inquiry of the History of International Law from an Intercivilisational Perspective’ (2000) 2 Journal of the History of International Law 1.

[19]    Statute of the International Court of Justice art 38(c).

[20]    Christopher Weeramantry and Nathanial Berman, ‘The Grotius Lecture Series’ (1999) 14 American University International Law Review 1515, 1562-8.

[21]    Baxi, above n 13, 719.

[22]    Ibid.

[23]    Charter of the United Nations arts 1(3), 55, 56.

[24]    C Ferguson, ‘Redressing Global Injustices: The Role of Law’, in FE Snyder and S Sathirathai (eds), Third World Attitudes toward International Law: An Introduction (1987) 369-77.

[25]    The success of this strategy was limited as General Assembly resolutions were relegated to the category of ‘soft law’ by Western states because they did not satisfy positivist legal requirements.

[26]    Mohammed Bedjaoui, Towards a New International Economic Order (1979) 41, 50.

[27]    Mexican President Luis Echeverria, quoted in Emilio O Rabasa, ‘The Charter of Economic Rights and Duties of States’ (1972) ASIL Proceedings 302, 302.

[28]    Dianne Otto, ‘Subalternity and International Law: The Problems of Global Community and the Incommensurability of Difference’ (1996) 5 Social & Legal Studies 337, 348, 353.

[29]    Antony Anghie, ‘What is TWAIL? Comment’ (2000) 94 ASIL Proceedings 31, 40.

[30]    Ibid 39.

[31]    Otto, above n 28, 344-8.

[32]    See eg James Thuo Gathii, ‘Neoliberalism, Colonialism and International Governance: Decentring the International Law of Government Legitimacy’ (2000) 98 Michigan Law Review 1996; Antony Anghie, ‘Finding the Peripheries: Sovereignty and Colonialism in Nineteenth Century International Law’ (1999) 40 Harvard International Law Journal 1; Siba N’Zatioula Grovogui, Sovereigns, Quasi-Sovereigns and Africans: Race and Self-Determination in International Law (1996); BS Chimni, International Law and World Order: A Critique of Contemporary Approaches (1993); Annelise Riles, ‘Aspiration and Control: International Legal Rhetoric and the Essentialisation of Culture’ (1993) 106 Harvard Law Review 723.

[33]    Edward Said, Culture and Imperialism (1993) 17. See also Dipesh Chakrabarty, ‘Modernity and Ethnicity in India’, in D Bennet (ed), Multicultural States: Rethinking Difference and Identity (1996) where he describes the fears of some Indian intellectuals that postcolonial and subaltern critique will play into the hands of Hindu fundamentalists by promoting a new indigenism in the populace. See also Dipesh Chakrabarty, Habitations of Modernity: Essays in the Wake of Subaltern Studies (2002) xxi.

[34]    Anghie and Chimni, above n 16, 83.

[35]    See generally Balakrishnan Rajagopal, International Law from Below: Development, Social Movements and Third World Resistance (2003). He urges a focus on the localised Third World experience of peasants and grass roots movements and maintains that ‘ignoring the role of the local as an agent of institutional transformation is … inseparable from the hegemonic nature of international law as an elitist discipline’: Balakrishnan Rajagopal, ‘International Law and the Development Encounter: Violence and Resistance at the Margins’ (1999) 93 ASIL Proceedings 16, 16–17.

[36]    R.P. Anand, The Legal Regime of the Sea Bed and the Developing Countries (1975).

[37]    R.P Anand, ‘Valedictory Address’ in R.P. Anand, R. Khan & S. Bhatt (eds), Law Science and Environment (1987) 266-7.

[38]    For instance, a 2007 TWAIL Conference at Albany Law School saw very few papers addressing environmental issues (Albany, New York, 20-21 April 2007). In contrast, a recent TWAIL conference at the University of Oregon School of Law saw environmental papers presented across various panels and themes, addressing among other things the politics of environmental coalitions, capitalism working for environmental protection, international law’s role in natural resource allocation, and climate investment and adaptation funds, to name but a few (Eugene, Oregon, 20-22 October 2011).

[39]    Anand, above n 37, 265.

[40]    Anand, above n 37, 269.

[41]    In December 1917, the newly established Bolshevik regime in Russia published the overthrown Czarist government’s secret treaties. Amongst these were the Sykes-Picot Accords – agreements between Britain, France and Russia to partition the Middle East among them. These agreements eventually became the basis for the post-war division of the region between Britain and France.

[42]    E.B. Tylor, Primitive Culture (1874), 26-7.

[43]    Jean-Baptiste Say, Cours complet d’économie politique (1828, 1843 ed), 74.

[44]    Henry Thomas Buckle, History of Civilization in England (1878), 50.

[45]    P. Hulme, ‘The Spontaneous Hand of Nature: Savagery, Colonialism and the Enlightenment’ in P. Hulme & L. Jordanova, The Enlightenment and its Shadows (1990), 30.

[46]    Ibid.

[47]    The region’s ruling elites were keenly aware of this strategy and exploited it. For an early example, during the House of Saud’s conquests of Arabian Peninsula, victory in battle was immediately followed by establishing alliance (forcible or voluntary) with local water guilds, as quickest way of cementing control over both people and territory: T.C. Jones, Desert Kingdom: How Oil and Water Forged Modern Saudi Arabia (2010).

[48]    UN Secretary-General Ban Ki-moon, Secretary-General's Statement at Open Security Council Debate on Energy, Security and Climate (17 April 2007).

[49]    Anand, above n 37, 265.