The teaching and researching of critical international law in TWAIL
Introduction
The teaching and researching of Third World Approaches to International Law (‘TWAIL’) has until now managed to provide only a bare recognition of caste and has failed to account for it properly and deeply. In fact, when Jotiba Phule authored Gulamgiri in 1873 or when B.R. Ambedkar wrote about and participated in the struggle to secure civil rights for the oppressed masses in the 1900s, they viewed and engaged with colonial powers in a far more complex and emancipatory way than the TWAIL scholarship addresses the marginalised today. Burra, in ‘TWAIL’s Others’ (2016), points to the glaring absence of systematically placing caste and anti-caste narratives and figures within TWAIL scholarship, a field which is generally thought of as “progressive.” In investigating the reasons behind the exclusion of caste from TWAIL scholarship, he attributes the same to the absence of scholars with lived experience of caste oppression in this field, along with the conceptual premise of TWAIL often being limited to the privileging of “west over the rest”.
Acting on Burra’s provocation, in this piece, I address the reasons behind this exclusion and why it is significant and must be addressed. First, I outline how TWAIL scholarship on international law, in India and internationally, ignores caste in its teaching, research, and discourse. Second, I move from TWAIL scholarship to the teaching of international law in India and argue that caste is central to the TWAIL perspective since it not only continues to govern social realities in South Asia but also remains crucial to developing other critical perspectives including communism and feminism in this context.
Caste and the limits of TWAIL’s criticality
For TWAILers, much of their critique is focused on how the experience of British colonial rule detrimentally impacted life in the Indian subcontinent. In fact, TWAIL scholarship in India has largely assumed that colonialism had an equal or a common minimum impact on all the people of India. For instance, BS Chimni in his Manifesto for TWAIL argues that a collective TWAIL front can subsist even with diverse group identities. This argument ignores the complications that caste may introduce to the discourse and the possible reframing of discourse due to the inclusion of caste.
Further, TWAILers often critique the civilised-uncivilised dichotomy created by the colonial world. In contrast, , Phule provocatively complicates this criticism by juxtaposing the ‘civilised’ nature of British colonial power antagonistically and simultaneously alongside the uncivilised Brahmanical setup that promoted slavery of the oppressed masses. Additionally, TWAILers also critique colonial powers for extracting economic resources from India. However, this narrative too does not paint a comprehensive picture. For instance, even the Indian government’s 1980 Mandal Commission report provides an account of the shudras being the great life-blood of the Indian ‘civilisation’, who bore the maximum tax burdens and on whom extreme punishments were inflicted for violating social codes. The Mandal report and other writings on caste underscore that the economic extraction of the oppressed masses began much before the colonial powers arrived on the subcontinent. While this oppression was later accounted for through mechanisms including the Indian Constitution’s commitment to affirmative action, the TWAIL narrative continues to ignore and therefore, conceal paradigms of caste that do not fit into the binaries of east-west, indigenous-colonial, and north-south.
Marginalisation of anticaste thinkers in the teaching and discourse of international law
In his work, Burra recounts how the perspectives of anti-caste figures, including Ambedkar, are not very prominent in the scholarship or the teaching of international law. The lack of engagement with Ambedkar’s idea is despite the fact that he was, perhaps, one of the early thinkers on self-determination in the context of separate electorates on the basis of religion and caste, as evidenced in his work Pakistan or the Partition of India (1945). He also articulated conceptions of dignity based on experiences of caste. Dignity is now a value essential to the international human rights framework. Further, scholars and teachers from dominant castes are overly represented in the field of international law and this has had significant influence on TWAIL’s discourse.
In the international law discourse, caste has obtained limited recognition by being subsumed under the racial category of ‘discrimination based on descent.’ This was spearheaded by various Dalit activists and organisations who were able to gain this limited recognition for caste-based discrimination (including the issues concerning Dalit women) in the face of opposition by the Indian government and the complimentary lack of support from TWAIL intellectuals. For its part, the Indian government has maintained a persistent stance on caste by characterising it as a purely domestic issue. Again, this is a form of concealment of the true import and extent of caste.
Significantly, the effort of these activists in foregrounding caste in discrimination is all the more relevant internationally since caste discourse, while a fixture of South Asian society, has been a feature of discourse and discrimination litigation elsewhere, be it the early US v Mozumdar case (where the court allowed a petition to cancel the citizenship of Mozumdar on the ground that the certificate of naturalization was illegally procured because the defendant was a “high-caste Hindu of full Indian blood and not a white person”) or the more recent BAPS temple case (a lawsuit has been filed in the United States by workers, most of whom are Dalits, against BAPS – a Hindu sect – for forced labour and other labour law violations). The struggle of these activists in shedding the spotlight on caste-based discrimination internationally brings to mind the struggles of Phule and Ambedkar, who resisted the characterisation of caste as merely a social and ethical issue that denied the revelation of its pervasive and persistent character.
Foregrounding caste in teaching and researching IL through a third world approach
In this scenario the teaching of critical international law in a Global South country like India, where a well-articulated TWAIL framework exists but does not yet properly account for the material and epistemological dimensions of caste, the framework is questionable in terms of the very criticality it espouses. Crucially, the teaching of ‘critical’ international law in India decolonises, but it does not debrahminise, as illustrated previously..
But why should the teaching and researching of TWAIL account for caste? Firstly, caste continues to be the primary governing social law of the land (in India and in other parts of South Asia) which influences the legal, economic, political, and the international order as well. Vasanthi Venkatesh has argued that casteism is a material force for the development of hegemonic socio-political and economic formulations supported by domestic and international legal orders and has explained how caste compels us to think of hegemony beyond Eurocentrism and colonialism. Secondly, other frameworks relevant to the Indian context, including feminism and communism, cannot be developed without accounting for caste. Without accounting for caste, the TWAIL approach to IL would only be in furtherance of maintaining a Brahminical epistemology.
Conclusion
Insightfully, Modirazeh critiques TWAIL scholars for being trapped in diagnosing international law rather than empowering future generations to work for change. She confronts TWAILers for not delineating whose lives, experiences, and voices they are purporting to serve. This lack of clarity has perhaps led to the ignorance of caste in TWAIL. Echoing Modirazeh, in teaching and researching TWAIL with a focus on caste, there is potential for an important critique of TWAIL to emerge. Engaging with this debate may help in evaluating if TWAIL can withstand the critiques that will emerge as a result of the inclusion of caste. At the same time, it will help understand if TWAIL is a possible tool to study caste-based issues.
Paper presented at the ‘Teaching International Law’ Panel held in October 2024, sponsored by the UN High Commissioner for Refugees Chair of NLSIU.
Image credits: Public Domain, https://commons.wikimedia.org/w/index.php?curid=2040175
