Understanding the ‘Fourth-World’ from the literature on ‘Third-World’ in International Law

While a Third-World understanding of international law is a developed and flourishing theme, the concerns of the Fourth-World are still not surfacing prominently in the debates around the philosophy of this discipline. In fact, with the emergence of TWAIL as a major scholarly approach (Okafor, 2008), anyone has hardly advocated a FWAIL. Since a mere semantic and etymological evolution is not the aim of this article, we shall proceed to the ways in which we can make better sense of the Fourth-World from what has already been written about the Third-World. Thus, this article seeks to map the convergence(s) and divergence(s) between the experiences, expectations and approaches of the Third-World states and the Fourth-World populations in international law.

Fourth-World is an etymological extension of the three-world model that reflects the economic, political and ideological division of the international community. The term ‘Fourth-World’ was popularized by George Manuel and Michael Posluns through their bookThe Fourth-World: An Indian Reality,’ where they narrated how the communities reflecting ‘nations’ and bound by ties of race and tribe de hors of features of a modern Westphalian state have been ejected to the margins of law. Thus, Fourth-World is quintessentially used as faute de mieux representative of the indigenous peoples, who, today, can be understood as descendants of “pre-invasion inhabitants of land now inhabited by others” (Anaya, 1996). Some examples of these communities would be the Maoris of New Zealand, Aboriginals of Australia, native Indians in the Americas, the Inuits and Aleuts of the Arctic, and the tribal peoples of Asia. In this regard, the Fourth-World is not only different set of people altogether, but is also found as much in the First as in the Third-World (“South of the North”, Bhatia, 2012).

The interplay between TWAIL and the Fourth-World has been deciphered by Seth Gordon who had noted that although TWAIL, by its definition, focuses on the Third-World, it has an expansive definition including all peoples marginalized by the western legal system. Despite this admission, there is much to be found against such a conjoint reading (Munarriz, 2008). However, the criticism is inapplicable here as this article’s focus is as much on the convergences as much on the divergences between the two perspectives. Thus, while we must talk about the commonalities that may be found in the two discourses, we must also appreciate the significant ways in which both depart from each other.

Professor Upendra Baxi in his article What May the Third-World Expect from International Law? (2006) lays down a critical framework through which to analyze the division of power across the globe. He insists that there must be some ‘narrative coherence’ behind the grouping nations or peoples into different ‘worlds’ in global politics (and thus in international law). For him, this coherence can be seen in the first world being a “vehicle, vessel and visage of global domination.” (See Edward Said, 1994). International law as a Euro-centric endeavor (Koskenniemi, 2008) is as harsh and as deprecating (if not more) on the Fourth-World as it is on the Third-World. This domination thus provides the coherence which Baxi demands.

Baxi’s next challenge to any new group driven movement is that it must not be derivative and should be original (Partha Chatterjee, 1986). However, the problem of being completely without being derivative is marred by a simultaneous insistence on ‘narrative coherence.’ He himself is empathetic to the Fourth-World peoples in his articulation of it being an accumulation of ‘multiple black holes of social exclusion throughout the planet.

While Baxi celebrates the emergence of scholars from the Third-World on the global stage of international law-making, I must point to the adoption of the the Declaration on the Rights of the Indigenous Peoples by the UNGA in 2007 (hereinafter, “DRIP”), also sounding a death knell what he calls ‘the much-vaunted ‘truth’ of the Hegelian lie concerning the impossibility of history, and therefore of future, outside the old and the new ‘Europe’ (Nunn, 1997).  The involvement of native folk and indigenous peoples in the framing of this Declaration is noteworthy (Allen and Xanthaki, 2011).

Finally, in terms of expectations, the Fourth-World’s requirements from international law surpass those of the Third-World. In Baxi’s articulation of ‘core’ expectations, in contrast to the Third-World, the Fourth-World will have much to expect very firstly from their own domestic states/governments. Therefore, what the Third-World states expect from international law, is in turn, also an expectation of the indigenous peoples from their own state. In that sense, a philosophy of Fourth-World concerns will be as much about a non-international law as much about international law. This understanding is better found in Chimni’s work (see below) where the duality of oppression is deduced so as to be countered with a dual expectation/solution framework.

In Third-World Approaches to International Law: A Manifesto (2006), Professor B.S. Chimni’s central argument is that international law serves as a legitimizing force for perpetuating unequal power relations (Also see Anghie, 2005). His critique of the Third-World group discourse having ‘obscured specificity in its quest for generalizability’ (Ravenhill, 1990) is equally (if not more strenuously) applicable to the Fourth-World. However, he himself provides an answer to this when he justifies subordination of particularities in order to enable collective articulation. Thus, his account inspires the Fourth-World to solidify lest it remains or crumbles into what Baxi called ‘multiple black holes of social exclusion.’

A coalition based-articulation, I submit, can still leave much room for a non-uniform and diverse pool of solutions to the common yet different problems (Matua, 2000). This is in fact true when we look at what is now a principal instrument of international law vis-à-vis the Fourth-World, viz. the DRIP. As only a non-binding declaratory document, it leaves much room for states to adapt to its application the local and specific trials and tribulations of their indigenous populations (Alexandra Xanthaki, 2011). In this sense, the DRIP does not fall flat on Chimni’s critique of international law serving as a tool for “internationalization of property rights” coupled with a universalizing “discourse of human rights.

 While Chimni’s analysis of the Third-World’s subordination by international law is uni-dimensional, I submit that to gain the best understanding of Fourth-World concerns, one must adopt a framework of duality. Fourth-World populations are culturally imperialized and intervened and subordinated not only by the international and global forces, but also by their own domestic state apparatuses. Thus, the Fourth-World populations have to not only face the ‘integrationist paradigm’ and ‘civilizational ambitions’ (Anghie, 2005) of international law, but also from their own state structure. This is sui generis to the Fourth-World populations and thus sets them apart from Third-World states. Though we can find instances where either of these hegemonic forces (the domestic state and international law) has taken an empathetic view and has come to the rescue of indigenous populations. High Court of Australia’s ruling in Mabo v. Queensland is an instance where the domestic state may recognize indigenous claims (in that case, to land and resources) as against upholding international law (in that case, doctrine of terra nullis). However, there will be certain issues such as climate change where the neglect of both these actors may not reap results for the concerns of the indigenous peoples.

Chimni’s articulation that “each era sees the material and ideological reconstitution of the relationship between state sovereignty and international law” can be of relevance to the Fourth-World where we might see this reconstitution in favour of recognizing and upholding the rights of their populations. Crucially, Chimni’s postulation that the Third-World only has negative obligations from the first world (which is usually the harbinger in a Euro-centric model of international law), may not be true for the Fourth-World. For the indigenous populations, positive obligations on the international law are a must so as to secure them from the first limb of the duality of subordination that they face: their domestic state apparatuses.

What is most relevant for the Fourth-World from a collective reading of Baxi and Chimni is their common position that sovereignty ought to be construed as belonging to peoples rather than vesting with states. This position may of little relevance to the Third-World but is of enormous theoretical support to the Fourth-World articulations which lack any definite state formation.

The silver lining to an otherwise critical prose offered by both scholars is provided by Chimni when he negates being a ‘nihilist’ and argues that we must also recognize the “protective shield” offered by the international law. In such an exposition, we see that while for the Third-World, the only recourse is that of international law, for the Fourth-World populations, their dual framework of oppression may also turn into a duality of opportunities for emancipation and redemption. In that regard, while black and murky clouds are hovering over the Fourth-World, the silver lining is also brighter for them than for the Third-World. They can knock the doors of both, their own state governments and the international law. The role of DRIP as captured by scholarship on its impact is noteworthy. In  Aurelio Cal v. Attorney General of Belize, the Supreme Court of Belize enforced an obligation onto the government to respect the indigenous peoples’ right to property on the basis of Belize’s vote on the draft DRIP (Baldwin and Morel, 2011). Dalee Sambo Dorough, one of the indigenous protagonists in the framing of the Declaration has shown how the Innuits have started using the Declaration in “counter-balancing the asymmetrical nature of negotiations between states and indigenous peoples.” At the intergovernmental level, Patrick Thornberry (2011) has shown how the UN Committee on the Elimination of All Forms of Racial Discrimination has internalized and further developed the concept of indigenous rights with considerable success through the process he calls as ‘normative integration.’

Therefore, while the DRIP is only a starting point, I submit that first we must water the philosophical foundational roots of international law (Ronald Dworkin, 2013) from the standpoint of the Fourth-World. Such philosophical enterprises will have the potential to make the rules-based international law framework a more cognitive and respectful enterprise vis-à-vis the rights of the Fourth-World populations.


Abhijeet Singh Rawaley is a Bar Council of India Trust Scholar (2017-’18) pursuing B.A., LL.B. (Hons.) at NALSAR University of Law, Hyderabad.