Okafor, Obiora Chinedu

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York University, Osgoode Hall Law School

Osgoode Hall Law JournalVolume 43, Number 1/2 (Spring/Summer 2005)Third World Approaches to International Law After 9/11Guest Editor: Obiora OkaforArticle 1The Third World, International Law, and the"Post-9/11 Era": An IntroductionObiora Chinedu OkaforOsgoode Hall Law School of York University, ookafor@osgoode.yorku.caFollow this and additional works at: http://digitalcommons.osgoode.yorku.ca/ohljPart of the International Law CommonsIntroductionThis Introduction is brought to you for free and open access by the Journals at Osgoode Digital Commons. It has been accepted for inclusion inOsgoode Hall Law Journal by an authorized editor of Osgoode Digital Commons.Citation InformationOkafor, Obiora Chinedu. "The Third World, International Law, and the Post-9/11 Era: An Introduction." Osgoode Hall Law Journal43.1/2 (2005) : 1-5. http://digitalcommons.osgoode.yorku.ca/ohlj/vol43/iss1/1THE THIRD WORLD,INTERNATIONAL LAW, AND THE"POST-9/11 ERA": AN INTRODUCTIONBY OBIORA CHINEDU OKAFOR*The continuing encounter among the peoples who now generallytend to self-identify as "third world" and the set of norms and discoursesthat we refer to as "international law" has had a long, contested andcomplicated-if in the end, mostly problematic-history. Over threegenerations of the scholars who have self-identified as "third world" havesought to grapple with the intricacies and complexities of this relationship,while seeking to demonstrate the injustice of far too many of its outcomes.Drawing from earlier generations of third-world scholars (such asUpendra Baxi, Keba M'Baye, Christopher Weeramantry, Oji Umozurike,Mohammed Bedjaoui, and R.P. Anand), as well as from other criticalapproaches to social and legal scholarship, the contemporary internationallaw scholars who self-identify as part of TWAIL (the critical Third WorldApproaches to International Law movement), some of whom havecontributed to this volume, have equipped themselves with a broad rangeof analytical tools and sensibilities-a large scholarly repertoire-that hasallowed them to re-read international law in a "third-world" mode, toattempt to write the shared experience of third-world peoples intointernational legal discourse, and even to re-tell the formative stories of thediscipline.Given the important claims that have been made, even by someprogressive scholars, regarding the seemingly fundamental inauguralcharacter of the historical moment that we currently inhabit, what manyrefer to as the "post-9/11 era," and given the ferment that such claimssignify, does pressing one or more TWAIL optics into the service of thescholarly interpretation of the nature of this historical moment point ustoward alternative (even more accurate) ways of imagining this "post-9/1 1"historical moment? Does taking the shared experience of those peoples andscholars that tend to self-identify as "third world" much more seriously thanhas hitherto been the case lead us to envision and articulate alternative, ifmore globally valid, stories about international law, global institutions, andinternational practices? Does the deployment of a TWAIL sensibility allowus to re-assess and re-configure the many international law reform andAssociate Professor, Osgoode Hall Law School, York University, Toronto, Canada; and GuestEditor of the volume.OSGOODE HALL LAW JOURNAL [VOL. 43, NO. I & 2retrenchment projects that have been either proposed or launched in thewake of the 9/11 attacks in the United States, such as the presumednecessity to authorize unilateral invasions, preventive wars, preventivedetentions for long periods, and torture?Deploying a range of TWAIL analytical techniques, this special issuegrapples intensely with this broad thematic and offers crucial insights intothe nature and implications of the current historical moment. It also shedsmuch light on the ways of understanding more fully the contemporaryrelationships third-world peoples and the "post-9/11" provisions andpractices of international law and global institutions. In this way the volumeenriches the scholarly debates about the nature of our contemporary worldand the policy implications of its specific character.More specifically, the "newness" of the "post-9/11" world issystematically challenged in the volume, especially in the contributions byAntony Anghie, Upendra Baxi, Ikechi Mgbeoji and Obiora Okafor. Thesescholars systematically expose the severe blind spots in the dominantaccounts of the character of our contemporary world that have occludedsimilar (and sometimes even more massive) third-world suffering from thegaze of those who author the dominant stories of international law andglobal order. The result, in their view, has been the creation and centringof pervasive false consciousness regarding the supposed uniqueness inglobal history of the events of 9/11. Thus, for Baxi, the myth that the eventsof 9/11 were new or unique in world (as opposed to U.S.) history,flattens historical time, reducing many histories of multiple terrorisms to a single date (thatis, 9/11), summoning a singular reconstitution of global public memory that simultaneouslyalso organizes collective amnesia of sources and causes, means and methods, ideologies, andstructures of varieties of collective political violence called "terrorism."'Anghie, Mgbeoji, Okafor, and indeed every contributor to thisvolume would agree.These authors unpack, often with systematic and deliberateprecision, the myth of U.S. and western innocence that has allowed the casefor the uniqueness of the despicable acts of terrorism that 9/11 signifies tobe vastly overstated. For instance, Mgbeoji's article suggests that not nearlyenough has been made of the fact that many "powerful states, especially theUnited States, are some of the leading proponents of terrorism."' OkaforI "The 'War on Terror' and the 'War of Terror': Nomadic Multitudes, Aggressive Incumbents, andthe 'New' International Law" (2005) 43 Osgoode Hall L.J. 7 at 28-29.2 "The Bearded Bandit, the Outlaw Cop, and the Naked Emperor: Towards a North-South(De)construction of the Texts and Contexts of International Law's (Dis)engagement with Terrorism"(2005) 43 Osgoode Hall L.J. 105 at 109.Introductiondiscusses a number of recent examples where the U.S. or its allies havesubjected third-world peoples to massive and long-running terrorcampaigns, albeit within so-called proxy wars.3 And for their part, Baxi andAnghie point to the colonial era to illustrate the historical continuity of theterror and horrors visited on third-world peoples by some of the morepowerful countries of the North.4 The lesson here is that it is only by heavilydiscounting third-world experience and history, and thus "buying into" thefalse consciousness of U.S. and western innocence, that the 9/11 terroristattacks can be convincingly portrayed as unique in world history. While oneor two features of that form of terrorism make it seem distinct from earlierforms of that terrible practice, those differences are neither profound norsignificant enough to render it unique in world history.Another argument that virtually all the contributors to this volumeshare is that the logical necessity and appropriateness of the specific kindsof international legal reform that have been proposed in response to the9/11 attacks stands deeply challenged by the considerable quantity andconvincing quality of the evidence that can be adduced against that claim.While virtually all the contributors to this volume agree with this argumentand provide convincing reasons for its validity, James Gathii's article bestexemplifies the way in which serious (TWAIL) analysis reveals andforegrounds the shallowness of the claims that fundamental internationallaw reforms, such as authorizing unilateral invasions and pre-emptive wars,have become necessary in the wake of the 9/11 attacks.5 As Gathii'spainstaking work suggests, the evidence clearly shows that virtually all theover one hundred and eighty states that make up the United Nations havestrongly rejected this view, while only a tiny group of five or so powerfulstates, agree with it.6 In any case, the overwhelming reception of this claimamong the world's peoples has also been negative.7As a consequence, the contributors to the volume expose theserious dangers that are posed to third-world peoples (and indeed to theworld as a whole) by the operation of the afore-discussed myths of newnessand innocence, as well as by the entailed proposals for international law3"Newness, Imperialism, and International Legal Reform in our Time: A TWAIL Perspective"(2005) 43 Osgoode Hall L.J. 173 at 187-87.4 Supra note 1 at 24; and Anthony Anghie, "The War on Terror and Iraq in Historical Perspective"(2005) 43 Osgoode Hall L.J. 145 at 60-64.5 "Assessing Claims of a New Doctrine of Pre-Emptive War under the Doctrine of Sources" (2005)43 Osgoode Hall L.J. 67 at 101-102.6 Ibid.7 Ibid. at 102-03.2005]OSGOODE HALL LAW JOURNAL [VOL. 43, NO. 1 & 2reform. This warning is particularly clear in the articles contributed byAnghie, Baxi, Gathii and Mgbeoji. However, even Karin Mickelson's paperon South-North engagements in the international environmental law area"post-9/11" is quite wary of the negative implications, especially for theThird World, of the diversion of scarce energy and resources from otherserious problems in favour of an obsessive focus on security, the use offorce, terror, and the like.8 Moreover, as Gathii has warned:Were it to be accepted, the adoption of the pre-emption doctrine gives these States [the U.S.and about four others] the exceptional authority to police the world without restraint, and atthe expense of States not meeting the approval of this band of States.9Baxi is similarly convinced that "the newly instituted official proseof the 'war on terror' now presents a 'clear and present danger' to theotherwise much vaunted ontological robustness of human rights" and toworld order in general.1t For Mgbeoji, these U.S.-led proposals for theauthorization of unilateral invasions and pre-emptive strikes signify an''excessive reliance upon military might and self-righteousness [that]portend grave dangers for global security."'1Central to the overall thrust of the contributions to this volume isthe way in which most contributors enlighten us about the technologies,techniques, and means through which the dominant response to the 9/11attacks actively seeks to renew, or has the unintended effect of renewing,the imperial project of control and subjugation over third-world (and other)peoples. Quite sadly, the chilling lesson here is that imperialism of one kindor the other is alive and well, even in our own time. Anghie, in this volume,makes this point in a way that almost every TWAIL scholar will agree with.According to him:[Wlhat is evident is the resemblance between the new initiatives that are being proposed bythe pre-emption doctrine and much earlier imperial themes. A UN that is transformed toaccommodate pre-emption doctrine will simply become a vehicle of this "new" imperialism,and third-world countries [and scholars] have not been slow to recognize this reality. 28 "Leading Towards a Level Playing Field, Repaying Ecological Debt, or Making EnvironmentalSpace: Three Stories about International Environmental Cooperation" (2005) 43 Osgoode Hall L.J. 137at 138.9 Supra note 5 at 100 [emphasis added].10 Supra note 1 at 25.11 Supra note 2 at 133-34.12Anghie, supra note 4 at 64.IntroductionIt may well be that some, including many self-professed humanrights advocates, do not feel as threatened by this "new" imperialism, andwould even go as far as endorsing a brand of imperialism that willpurportedly spread human rights to parts of the third world (d la Iraq andAfghanistan!), but that is not for most third-world peoples, the sense thatshould be made of their horrible historical experience of colonial andimperial subjugation.More happily, it is important to note here that many scholars in theNorth seem to share important parts of the TWAIL ian conclusions regardingthe nature of our "post-9/11" world that are presented in this volume. AsMargaret Beare's review in this volume of Kent Roach's brilliant book onCanada and the 9/11 attacks shows, both Roach and Beare are as likely asany TWAIL scholar to be pronounced "guilty" for challenging quiteeffectively the preferred message of the dominant school of thought on the9/11 attacks: that is, that the "attacks in New York and Washingtonsignalled an era of profoundly different terrorism."13If the volume helps convince even a few students and scholars aboutthe soundness of the alternative, more global, understanding of our post-9/11 world and its implications for international law reform, then it wouldhave justified all the effort that went into it.13 Book Review of September 11: Consequences for Canada by Kent Roach (2005) 43 Osgoode HallL.J. 195 at 197 [emphasis added].2005]

The Third World, International Law, and the  Post-9/11 Era : An Introduction

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The Third World, International Law, and the Post-9/11 Era : An Introduction

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