TWAILR: Reflections #27/2021
In the middle of the fourteenth century, on the South Indian coast, the North African traveller, Ibn Battuta, witnessed a custom that was then common across the Indian Ocean. Under what was known as the ‘right of the port’ (Ar. haqq al-bandar), coastal states could seize part of the cargo of any vessel that entered a port, not of its own volition, but due to a storm or some other calamity. While the origins of this custom are unknown, it is widely attested across the trading world of the medieval Indian Ocean.1 A few rulers even went so far as to force passing ships into their harbour, in order to then exercise their ‘right of the port.’ Ibn Battuta, a jurist by training, complained bitterly about this practice, but continued to frame his description of it in terms of law and sovereignty. The commercial networks along which Ibn Battuta travelled traversed many different legal orders, polities, jurisdictions, and religious contexts. In their dealings with one another, merchants developed a type of trans-oceanic lex mercatoria to govern their business relationships; this was often rooted in Islamic law, even in cases when none of the parties identified as Muslim.2 The legal plurality of the Indian Ocean arena and its surrounding ports, described by Ibn Battuta and many others, opens a generative context from which to teach an aqueous history of international law. How might students be encouraged to read these negotiations between Indigenous seafarers, subaltern traders, and governing states not merely as maritime customs, but as an alternative stage for the emergence and development of a global legal order?
The legal plurality of the Indian Ocean arena and its surrounding ports, described by Ibn Battuta and many others, opens a generative context from which to teach an aqueous history of international law.
The authors, a socio-legal scholar and a historian, address these questions in a co-taught third-year undergraduate course at the University of British Columbia (UBC) titled ‘Unruly Oceans: Law, Violence, and Sovereignty at Sea.’ Teaching histories of trade, law, and politics across the Indian Ocean offers novel insights into a polyglot legal order that predates European encroachment, colonization, and control. This is a history in which the state appears not as the sole purveyor of legitimacy but as one actor among many, in a multi-vocal and plural legal environment where a diversity of religious laws and legal cultures intersected, coexisted, and competed—of which the ‘right of the port’ is but one example. Building on the work of scholars who view oceans, and the Indian Ocean in particular, as a geographic space, an archive, as well as a method of research, the course orients students towards oceanic history as a rich, albeit neglected, domain of international law.3 Located in the Global South, the Indian Ocean has long predated the Eurocentric world order that is so commonly identified as the birthplace of international law. From the creation of transregional private-order institutions in the premodern period, to the imposition of European colonial rule(s) from the sixteenth century onwards, the Indian Ocean has served as a central and deeply contested locus in the making of an international legal order.
Bringing legal history into conversation with oceanic history and TWAIL scholarship, our course charts a trajectory that introduces students to Indigenous and Asian legal orders, which exceed the narrow domain of modern maritime law and that directly challenge the origin stories of a global legal order that began in Europe.4 On a campus situated on the unceded territories of the Musqueam (xʷməθkʷəy̓əm) people, surrounded by the Salish Sea, and in a city often described as a ‘gateway to Asia,’ UBC is an evocative location for students to examine how oceans have figured in the histories of colonialism, settler colonialism, and imperialism, and how they have shaped legal worlds of the past, present, and future.5 Taught within the university’s Law and Society Program, the course invites a multidisciplinary, non-European, and oceanic approach to international law that reaches beyond the typical mandate of a professional law school. The course draws on historical and contemporary readings—including primary sources, legal texts, and policy documents—and incorporates lectures and small-group discussions with a series of experts from UBC and beyond that will be archived, along with other course materials, on a public website (https://oceanlaw.ubc.ca). Ultimately, the course encourages students to rethink the origins of international law, beyond the conventional settings of European cities and toward the Indian Ocean that has long connected the Global South through commerce, religious pilgrimage, and clandestine as well as forced migrations.6 The title, ‘Unruly Oceans,’ we must clarify, does not mean lawlessness. Rather, the Indian Ocean world, as a site of legal plurality and multiple jurisdictions, offers alternative scales, registers, and perspectives through which to study law, legal actors, and juridical institutions. Taking as its initial vantage point the dhows, junks, and other ships that traversed the ocean, the course invites students into an aqueous history of international law through the trajectories, transactions, and knowledges of Indigenous and subaltern sailors, merchants, pirates, and revolutionaries who resisted, subverted, participated in, or simply existed alongside the colonizing imperatives of European powers.
Oceans as Global Legal Spaces
The European myth of international law, as it continues to be taught conventionally in law schools and legal studies, is often traced to the writings of Dutch jurist and humanist Hugo Grotius. In the early seventeenth century, Grotius was consulted by the Dutch East India Company (VOC) to advise on the seizure of the Santa Catarina, a Portuguese carrack that had been captured in 1603 by Jacob van Heemskerk in the Strait of Singapore.7 Focused on Portuguese and Dutch conflicts in the Indian Ocean, Grotius justified van Heemskerk’s actions in his 1609 treatise Mare Liberum, or ‘Free Sea.’8 There, Grotius distinguished the high seas, which he claimed were held in common to all, from territorial waters that were under the jurisdiction of empire-states. Given his influence in shaping maritime law and commerce, Grotius is widely regarded as one of the ‘founding fathers’ of international law.9 By defending the piratical seizure of the Santa Catarina, Grotius laid the legal groundwork for Dutch colonialism in the Indian Ocean region.10
Bringing legal history into conversation with oceanic history and TWAIL scholarship, our course charts a trajectory that introduces students to Indigenous and Asian legal orders, which exceed the narrow domain of modern maritime law and that directly challenge the origin stories of a global legal order that began in Europe.
TWAIL scholars have criticized this origin story of international law in different ways. R.P. Anand, for example, rejects the argument that an international legal order began with European jurists such as Grotius.11 Instead, he traces the emergence of the ‘free sea’ to the maritime customs and practices of Indian Ocean seafarers. Antony Anghie argues that Europe’s efforts to colonize the Americas and the Global South produced and shaped the field of international law.12 Through his critical reading of another so-called father of international law, the sixteenth-century Spanish philosopher Francisco de Vitoria, Anghie argues that ‘international law was created out of the unique issues generated by the [colonial] encounter between cultures’ of the Spanish and the Indigenous peoples that they sought to colonize. If international law materialized from colonial violence, as Anghie argues, then it has always been guided by a civilizing imperative aimed at governing non-European peoples.13 Our course follows Anand’s emphasis on Asian seafarers and builds on Anghie’s critique of international law to chart an oceanic history. The ‘history of international relations,’ Amadeo Policante argues ‘has often been characterized by a territorial bias, leaving to the margin the particular spatiality of the oceans and the role they actually played in the evolution of the modern international order.’14 By reading legal history, oceanic history, and TWAIL scholarship together, students in our course trace the origins of international law through precolonial maritime laws and customs and in ‘a long history of conflicting maritime spatialities, in which legal spaces [were] not simply discursively created but produced by social practices and political projects.’15
In the European imagination, oceans were used to divide humanity into two distinct spheres: Afro-Eurasia and the Americas. In the aftermath of Europe’s so-called discovery of the ‘New World’ (mundus novus), European philosophers and jurists came to view these differentiations not solely in spatial terms but also as historical, geopolitical, and civilizational ones.16 In his seminal essay, ‘A Sea of Islands,’ Epeli Hau‘ofa warns that these oceanic divides were imperial projections. For Pacific Islanders, he explains, the sea did not differentiate regions or peoples: Oceania was ‘a large world in which peoples and cultures moved and mingled, unhindered by boundaries of the kind erected much later by imperial powers.’17 The Indian Ocean likewise was a vital space of connection and a key source for food, knowledge, travel, transport, and trade. Students in our course enter an Indian Ocean world that cannot be adequately captured by Eurocentric conceptualizations of trade or by the inter-imperial conflicts portrayed by Grotius in Mare Liberum. Instead, students will explore the Indian Ocean through the movements of subaltern traders, merchants, travelers, and pilgrims and how their itineraries connected different regions of the Global South as an international legal order in the making. Through these figures and their travels, students will encounter oceans not as ‘surfaces and depths for the production of a world as an object to be captured and colonized, but [as] sites that bring otherwise distant and foreign people and species together and enfold them into another world.’18
Building on and expanding the critiques of TWAIL scholars and extending them to the Indian Ocean, our course orients students towards an alternative origin story of international law. The chronology and vantage points explored in our readings and presentations situate the project of colonial rule-making against the background of precolonial maritime practices and within the context of struggles against the violence of European powers.19 Oceanic struggles have unfolded conspicuously through military conflict, political rivalry, and economic competition and have also been central to shaping global, legal and political contestations, as recent concerns around piracy, exclusive economic zones, and environmental destruction make clear. Even today, the Indian Ocean and its adjacent waters continue to be at the forefront of legal and political contests over national sovereignty and natural resources. The Indian Ocean, like other ocean arenas, serves as an indicator of climate catastrophe, planetary destruction, as well as a catalyst for social change.20 This is an unruly realm where international governance and transnational cooperation have developed through legal clashes and conflicts at sea.
The Pirate and the Emperor
The pirate, as a purported enemy of European and western legal orders and as a figure of resistance to European imperial control, clearly demonstrates the significance of the Indian Ocean and its aqueous struggles, both historically and in our present moment. 21 In his City of God, the fifth-century theologian Augustine of Hippo narrates an apocryphal encounter between the emperor Alexander III of Macedon (commonly known as ‘Alexander the Great’) and a captured pirate. When asked by the emperor what gave him the right to plunder ships at sea, the pirate responded that it was the same as Alexander’s right to rob the whole world: ‘but because I do it with a little ship I am called a robber, and because you do it with a great fleet, you are called an emperor.’22 This allegory offers an important pedagogical opening from which to study the rise of a global legal order from the vantage point of the seas. The pirate has featured prominently in Eurocentric conceptions of international law, violence, and sovereignty that have been imposed onto Indian Ocean worlds, and in ways that continue to justify western control.23
In the historiography of the Indian Ocean, there has long been a tendency to describe coercion and violence by Asian actors—be they local states exercising their ‘right of the port,’ or Indigenous and subaltern sailors evading or attacking European ships—as inherently illegitimate. The same actions committed by Europeans, on the other hand, are shrouded in the cloak of legality as evidenced in terms such as ‘oceanic expansion,’ ‘seaborne empire,’ and ‘privateering.’24 These distinctions between ‘lawful’ and ‘lawless’ were integral to the oceanic and planetary divides that have elevated Europe’s legal order (tracing back to the Mediterranean paradigm of mare nostrum) above those of other regions, and which have served as the ideological foundation for the European development and imposition of an international legal order. By defending and legitimizing van Heemskerk’s capture of the Santa Catarina, for instance, Grotius depicted pirates as illegitimate, as transgressors of natural law and as threats to European trade and commerce.25 The implications of his categorizations remain a point of contention today. If conventional histories of international law continue to be taught through the terracentric writings of European jurists and philosophers, and in ways that privilege western understandings of sovereignty, legitimacy, and the state, what would it mean to shift our attention from Europe to the Global South, and from land to sea? By making this shift, our students learn a history of international law through Indigenous and subaltern seafarers, traders, and pirates—not as despots, smugglers, or criminals, but as legal actors who shaped a global legal order.
The Indian Ocean has never been a lawless space: ‘Unruly Oceans’ signals to students the historical and ongoing struggles over ocean worlds. Take the figure of the pirate. In keeping with the so-called ‘oceanic turn,’ the study of piracy has increasingly turned away from privileging the vantage point of states and the primacy of legal doctrines in favor of more sea-based perspectives. Rather than as an immutable force of nature, like the winds and waves of the Indian Ocean, pirates were dynamic legal and political actors who interacted with changing economic conditions and in multilayered legal contexts.26 Asking students to engage with pirates not simply as ‘outlaws’ but as participants in the negotiation, contestation, and even promulgation of diverse legal orders and jurisdictional claims helps shift the focus from theory to praxis that has been such an important feature of TWAIL scholarship.27
Oceans, as we discuss thus far, have long been sites and sources of law and regulation. But they have also offered spaces of refuge for pirates, poachers, polluters, and people-traffickers and thus remain an untamed and unruly realm on the very fringes of state control.28 The Indian Ocean was always a polyglot and plural legal domain, a site of alternative constructions of sovereignty, in which Indigenous and subaltern sailors and merchants long resisted European and western efforts to impose hegemonic control. Given these historical contests over state regulation, international governance, and struggles for freedom, oceans offer a particularly illuminating window into the development of an international legal order that began at sea, on ships, and in ports of call. This is a history that challenges students to question existing geographical distinctions (north/south; land/sea) and enduring legal concepts (sovereignty/territoriality), all of which have helped to sustain the origin myth of a European global legal order.
A View from the Sea
Through Asia-centric and oceanic perspectives, ‘Unruly Oceans’ guides students through a counter-history of international law from below.29 This account is told through illustrious figures such as Ibn Battuta and through the biographies, travels, and commercial activities of many lesser known traders, sailors, pirates, revolutionaries, and activists. Europeans who traveled to the Indian Ocean found themselves in a thicket of ‘state and interstate relations based on traditions which were more ancient than their own’ and in no way inferior to European legal systems.30 The European myth of international law erases and ignores the legal concepts and customs that were carried by dhows and ships across the Indian Ocean and through its surrounding ports of call. We may not be able to ‘trace its expression in the form of a doctrine as such until much later times,’ Anand writes, but ‘there is no doubt that the freedom of the seas in the form of unobstructed freedom of navigation and commercial shipping was accepted by all the countries in the Indian Ocean and other Asian seas for centuries before history was ever recorded.’31 Thus, European conceptions of the ‘free sea,’ which are attributed to Grotius and regularly hailed as the keystone of modern international law, did not emerge in a vacuum of European exceptionalism ‘but in the praxis of Europe’s encounter with the states, and regimes of inter-state relations, in Asian waters.’32
By centering the Indian Ocean, our course takes a kaleidoscopic approach to international law. Students will study the global legal order through theories, epistemologies, and methodologies from a wide range of disciplines: geography, history, Indigenous studies, journalism, law, ocean science, and sociology. The course engages students to think about the multiple origins of international law and its inherent plurality. More importantly, we invite students to consider the ways in which encounters in the Indian Ocean region have not only shaped our conceptions of trade and travel but our very ideas of law, order, sovereignty, and power. Focusing on Indigenous and subaltern figures, the course redirects students to the waterways that have proved crucial to the development of international law and which have long connected regions of the Global South.
Along with a maritime perspective that inverts the traditional investment in territoriality, the course foregrounds the Indian Ocean as a rich reservoir of customs, layered jurisdictions, and competing legal knowledges. We deliberately take a wide historical approach. In one week students read the work of the eighth-century Iraqi jurist Muhammad al-Shaybani, a foundational figure of the Hanafi school of Islamic law, whose work expressed his recognition of a customary international law.33 In another week, students will read about the negotiations and legal transactions of Arab dhow captains, and in another, students will learn of contemporary Somali pirates and their resistance against European encroachment over their waters and resources.34 Oriented in this way, the course aims to subvert the history and geography of conventional accounts of international law with its traditionally Eurocentric, sexist, and racist assumptions about the constitution of legal expertise.
By positioning the Indian Ocean as a key domain of international law, by privileging Indigenous and subaltern actors, and foregrounding scholars from the Global South, ‘Unruly Oceans’ challenges students to rethink the origins and developments of international law beyond the pervasive canon of European legal historiography. By centering rich oceanic legal histories of worlds past, we hope that our students will draw inspiration and guidance to imagine other futures.
Although our course covers a vast historical period, the conceptual shifts it makes—from Europe to Asia, and from land to sea—are crucial to understanding the many urgent crises facing our planet today. Approaching international law through Indian Ocean seafarers, traders, and travelers emphasizes this region as a conduit of global exchange, as we discuss above, and as a domain of ongoing conflicts over sovereignty, violence, and more recently, climate catastrophe. The world’s oceans are central to the rapidly unfolding climate crisis on a global scale. Ocean plastics and pollution, global warming and rising sea levels have unearthed a planetary emergency that cannot be adequately addressed through existing laws and policies. The course, then, is also a primer on some of the most pressing issues of our time. The maritime sphere continues to be ‘unruly’ in other ways, as evidence in geopolitical disputes over sovereignty to the contested status of goods, including the interdicted cargo of ammonium nitrate held responsible for the deadly explosion in Beirut’s port in August 2020, and human beings, as evidenced in the thousands of sailors unable to leave freighters and cruise ships stalled in indefinite limbo due to the Covid-19 crisis.35 By positioning the Indian Ocean as a key domain of international law, by privileging Indigenous and subaltern actors, and foregrounding scholars from the Global South, ‘Unruly Oceans’ challenges students to rethink the origins and developments of international law beyond the pervasive canon of European legal historiography. By centering rich oceanic legal histories of worlds past, we hope that our students will draw inspiration and guidance to imagine other futures.
The authors gratefully acknowledge research assistance by Alifya Sohail and the valuable comments and suggestions offered by TWAILR’s editors.
- Sebastian R. Prange, ‘The Contested Sea: Regimes of Maritime Violence in the Pre-Modern Indian Ocean’ (2013) 17:1 Journal of Early Modern History 9.
- Shelomo D. Goitein and Mordechai Friedman, India Traders of the Middle Ages: Documents from the Cairo Geniza ‘India Book’ (Leiden, 2007); Hassan S. Kalilieh, Islamic Law of the Sea: Freedom of Navigation and Passage Rights in Islamic Thought (Cambridge, 2019).
- Isabel Hofmeyr, ‘Complicating the Sea: The Indian Ocean as Method’ (2012) 32:3 Comparative Studies of South Asia, Africa, and the Middle East) 584; Fahad Bishara, ‘“No Country but the Ocean”: Reading International Law from the Deck of an Indian Ocean Dhow, c.1900’ (2018) 60:2 Comparative Studies in Society and History 8338; Renisa Mawani and Iza Hussin, ‘The Travels of Law: Indian Ocean Itineraries’ (2014) 32:4 Law and History Review) 733; Renisa Mawani, Across Oceans of Law: The Komagata Maru and Jurisdiction in the Time of Empire (Durham, 2018).
- See for example Makau Mutua and Antony Anghie, ‘What Is TWAIL?’ (2000) 94 Proceedings of the Annual Meeting (American Society of International Law) 31; Luis Eslava and Sundhya Pahuja, ‘Beyond the (Post)Colonial: TWAIL and the Everyday Life of International Law’ (2012) 45:2 Journal of Law and Politics in Africa, Asia and Latin America – Verfassung und Recht in Übersee (VRÜ) ( 195; James T. Gathii, ‘The Agenda of Third World Approaches to International Law (TWAIL)’ in Jeffrey Dunoff and Mark Pollack (eds.), International Legal Theory: Foundations and Frontiers (Cambridge, forthcoming).
- Renisa Mawani, ‘Law, Settler Colonialism, and the “Forgotten Space” of Maritime Worlds’ (2016) 12 Annual Review of Law and Social Science 107.
- James T. Gathii, ‘The Promise of International Law: A Third World View,’ Grotius Lecture, American Society of International Law Virtual Meeting (2020); Sugata Bose, A Hundred Horizons: The Indian Ocean in the Age of Global Empire (Cambridge, Mass., 2006); Fahad Bishara, A Sea of Debt: Law and Economic Life in the Western Indian Ocean, 1780–1950 (Cambridge, 2017).
- Peter Borschberg, ‘The Seizure of the Sta. Catarina Revisited: The Portuguese Empire in Asia, VOC Politics and the Origins of the Dutch-Johor Alliance (1602-c.1616)’ (2002) 33:1 Journal of Southeast Asian Studies 31, at 34.
- Hugo Grotius, D. Armitage (ed.), R. Hakluyt (trans,), The Free Sea (Indianapolis, 2004).
- Hamilton Vreeland, Hugo Grotius: The Father of the Modern Science of International Law (New York, 1917); Martine Julia van Ittersum, ‘Hugo Grotius: The Making of a Founding Father of International Law’ in Anne Orford and Florian Hoffmann (eds.), The Oxford Handbook of the Theory of International Law (Oxford, 2016) 82.
- Samera Esmeir, ‘Bandung: Reflections On The Sea, The World And Colonialism’ in Luis Eslava, Michael Fakhri, and Vasuki Nesiah (eds.), Bandung, Global History, and International Law: Critical Pasts and Pending Futures h81; Martine Julia van Ittersum, ‘The Long Goodbye: Hugo Grotius’ Justification of Dutch Expansion Overseas, 1615-1645’ (2010) 36:4 History of European Ideas 386; Mawaniw (2018).
- R.P. Anand, Origin and Development of the Law of the Sea: History of International Law Revisited (The Hague, 1983).
- Antony Anghie, ‘Francisco de Vitoria and the Colonial Origins of International Law’ (1996) 5:3 Social & Legal Studies 321, at 322.
- Antony Anghie, Imperialism, Sovereignty, and the Making of International Law(Cambridge, 2005).
- Amedeo Policante, The Pirate Myth: Genealogies of an Imperial Concept (New York, 2016) 82.
- Sebastian Prange, ‘The Contested Sea: Regimes of Maritime Violence in the Pre-Modern Indian Ocean’ (2013) 17:1 Journal of Early Modern History 9, at 30.
- Henry Jones, ‘Lines in the Ocean: Thinking with the Sea about Territory and International Law’ (2016) 4:2 London Review of International Law 307; Carl Schmitt and G.L. Ullmen, The Nomos of the Earth in the International Law of the Jus Publicum Europaeum (New York, 2006); Mawani (2018)w.
- Epeli Hau‘ofa, ‘Our Sea of Islands’ (1994) 6:1 The Contemporary Pacific 148, at 4153.
- Esmeir g(2017) 89
- Sebastian R. Prange, ‘A Trade of No Dishonor: Piracy, Commerce, and Community in the Western Indian Ocean, Twelfth to Sixteenth Century’ (2011) 116:5 American Historical Review 1269; Mawani & Hussin (2014)‘; Mawani (2018)w.
- Surabhi Ranganathan, ‘The Law of the Sea’ in Visualizing Climate and Loss (Harvard University Joint Center for History and Economics, 2020); Amitav Ghosh, The Great Derangement: Climate Change and the Unthinkable (Chicago, 2017); International Union for Conservation of Science, ‘The Ocean and Climate Change’ (November 2017) https://www.iucn.org/sites/dev/files/the_ocean_and_climate_change_issues_brief-v2.pdf (accessed 17 November 2020).
- Tor Krever, The Ideological Origins of Piracy in International Legal Thought, PhD Thesis, London School of Economics and Political Science (2018); Simon Layton, ‘The “Moghul’s Admiral”: Angrian “Piracy” and the Rise of British Bombay’ (2013) 17:1 Journal of Early Modern History 75; Policante (h2016).
- Augustine [of Hippo], R.W. Dyson, The City of God against the Pagans (Cambridge, 1998) 148.
- Alfred P. Rubin, The Law of Piracy (Leiden, 1998); Sebastian R. Prange, ‘Asian Piracy’ in D. Ludden (ed.), Oxford Research Encyclopedia of Asian History (Oxford, 2017).
- C.R. Boxer, The Portuguese Seaborne Empire, 1415-1825 (New York, 1969).
- Kreveriy (2018).
- Prange (2017).y
- Usha Natarajan, John Reynolds, Amar Bhatia, and Sujith Xavier, ‘Introduction: TWAIL: On Praxis and the Intellectual’ (2016) 37:11 Third World Quarterly 1946; Obiora C. Okafor, ‘Enacting TWAIL Praxis in Non-Academic Habitats: Toward a Conceptual Framework’ (2016) 20 American Journal of International Law Unbound.6
- Ian Urbina, The Outlaw Ocean: Journeys Across the Last Untamed Frontier (New York, 2019).
- B. Rajagopal, International Law from Below: Development, Social Movements and Third World Resistance (Cambridge, 2003).
- C.H. Alexandrowicz, An Introduction to the History of the Law of Nations in the East Indies (16th, 17th and 18th Centuries) (Oxford, 1967) 224.
- Anand (ea1983) 226.
- Prange (2013) a30.
- Khaled R. Bashir, Islamic International Law: Historical Foundations and Al-Shaybani’s Siyar (Cheltenham, 2018).
- Fahad Ahmed Bishara, ‘Comparative Studies in Society and History 338; Jatin Dua, ‘A Sea of Trade and a Sea of Fish: Piracy and Protection in the Western Indian Ocean’ (2013) 7:2 Journal of Eastern African Studies 353.
- Laleh Khalili, Sinews of War and Trade: Shipping and Capitalism in the Arabian Peninsula(New York, 2020); Laleh Khalili, ‘Behind the Beirut Explosion Lies the Lawless World of International Shipping’ (8 August 2020) https://www.theguardian.com/commentisfree/2020/aug/08/beirut-explosion-lawless-world-international-shipping- (accessed 17 November 2020).