Shubhangi Agarwalla
Luis Eslava’s “Trigueño International Law” presents a compelling socio-legal critique that rethinks the conventional frameworks of international law by exposing how they perpetuate a state of “out-of-placeness”—particularly in the Global South. Eslava’s analysis probes deeply into the complexities of identity and dislocation, offering valuable insights into the ongoing legacies of colonialism. However, his exploration also invites critical reflection on the potential risks of focusing on dislocation at the expense of recognising the agency of indigenous communities, and the need for alternative frameworks to better understand these experiences.
Those familiar with Eslava’s earlier work will recognise his gift for evocative storytelling. In this chapter, he again weaves a rich tapestry of words that vividly brings to life the humid, electric energy of Catatumbo, Colombia and the fraught existence of its inhabitants. His prose captures the restless pulse of a place where natural forces, historical wounds, and contemporary struggles intersect and his language, like the rivers he describes, flows with a lyrical quality that seamlessly moves between the personal and the political, the local and the international.
While the field of Third World Approaches to International Law (TWAIL) has extensively critiqued international law as a tool of colonial domination (see Chimni 2007, Mickelson 1998, and Okafor 2005) which sustains the divide between the Global North and South, Eslava deepens this critique. He demonstrates how these colonial legacies have a tangible, material impact on specific local contexts, such as in Catatumbo. Through a micro-level lens, Eslava highlights the material, symbolic, and affective dimensions of these colonial legacies, showing how they shape everyday life, identity, and socio-economic conditions in tangible ways (for similar ideas on the everyday life of international law, see here). In particular, the materiality of law is an essential dimension often overlooked in traditional critiques. By examining how legal frameworks manifest in tangible, everyday experiences, Eslava underscores that legal systems are not just abstract or symbolic structures, but actively shape the lived realities of marginalised communities.
This review will explore three core aspects of Eslava’s argument: first, the concept of “out-of-placeness” in international law and its implications for identity formation in the Global South; second, the relevance of these ideas in the Indian context, where Indigenous communities face ongoing marginalisation under both national and international law; and third, Eslava’s interdisciplinary approach, with attention to both its strengths and potential limitations.
Unpacking “Out-of-Placeness” in International Law
Eslava begins by exploring his own identity as “trigueño”—a term that denotes a person of mixed Indigenous, African, and Spanish heritage. This identity serves as a framework to highlight the fluidity and complexity of life in the Global South, where identities are continuously shaped by colonial histories and global economic forces. Eslava argues that in these contexts, identities are neither fully “in place” nor entirely “out of place”; instead, they exist in a liminal space that embodies both everywhere and nowhere at once. This is a profound assertion—being “out of place” is not merely a momentary disruption but a constant condition created and maintained by international law itself. This perspective challenges the simplistic binaries that often characterise discussions of identity in global legal frameworks, revealing the inadequacy of traditional legal categories to fully capture the lived realities of people in the Global South.
Eslava’s work critically examines how international legal systems have historically aimed to impose order by categorising people and things into their “proper” places. He critiques the Eurocentric notion that law can create a stable, universal order while ignoring the inherent and pervasive “out-of-placeness” it continues to generate. For instance, Eslava explores how international legal systems have supported colonial exploitation, legitimised resource extraction, and enabled the suppression of local communities. By emphasising that international law can produce as much disorder as order, Eslava invites us to question the assumed benefits of legal standardisation and to consider the ways in which these frameworks inadvertently harm the very societies they purport to help.
Building on this critique, Eslava encourages scholars to recognise that being “out of place” is not merely a metaphor for displacement or marginalisation; it is an actual, lived experience for many in the Global South. This sense of dislocation — whether physical, cultural, or social—extends beyond metaphor to a global reality that affects both the Global South and the Global North. Eslava calls for an ethical reorientation in scholarship that acknowledges and embraces this dislocation, advocating for interdisciplinary approaches that are more attuned to the complexities of contemporary global dynamics. His insights push us to rethink our understandings of place and belonging in an increasingly interconnected world.
The Indian Context: Perpetual Dislocation of Indigenous Communities
Eslava’s concept of “out-of-placeness” finds particular resonance in the Indian context, where the fluidity and complexity of indigenous identities have long posed challenges to the application of both national and international legal norms. In India, this state of perpetual dislocation is deeply rooted in colonial and postcolonial governance practices that continue to marginalise indigenous communities, often referred to as Adivasis. For centuries, India’s indigenous communities have been systematically displaced from their ancestral lands, deprived of their natural resources, and subject to policies rooted in colonial administrative frameworks that prioritise development over indigenous rights. Under British colonial rule, land acquisition laws, forest regulations, and economic policies disrupted the traditional livelihoods of these communities, rendering them “out of place” even in their own territories.
This dislocation did not end with independence. Colonial legacies persist in the form of modern development projects, mining operations, and infrastructure expansion, which frequently result in the forced displacement of Adivasi populations without adequate rehabilitation or compensation (see generally Ambagudia 2010). Eslava’s notion of “out-of-placeness” as a structural condition created and maintained by legal and political systems is vividly illustrated here — Indigenous communities in India experience this dislocation not only through physical displacement but also socially, politically, and culturally. Their ways of life are often rendered invisible or illegitimate by dominant state narratives, policies, and legal classifications.
Eslava’s critique of legal systems imposing rigid categories is highly applicable to India’s process for classifying “Scheduled Tribes” (STs) under Article 342 of the Constitution. Although the Constitution lays out a specific process for recognizing STs, the criteria, largely shaped by the 1965 Lokur Committee, have long been criticised as outdated and insufficiently nuanced. The Lokur Committee’s focus on criteria such as “primitive traits,” “geographical isolation,” and “shyness of contact” reflects colonial-era stereotypes that fail to accommodate the evolving realities of tribal communities. The process for amending the ST list is complex, requiring approval from state governments, the Office of the Registrar General of India, the National Commission for Scheduled Tribes, and finally, both houses of Parliament and the President. The rigidity of the Lokur Committee’s criteria, despite being heavily criticised even by the government’s own task forces, continues to shape tribal recognition (here). The Narikuravar community in Tamil Nadu illustrates the limitations of such rigid legal categories. Classified as an “Other Backward Class” (OBC), they were long denied ST status despite their socio-economic challenges and marginalisation, as their lifestyle did not fit the state’s narrow criteria for “geographical isolation” and “shyness of contact.” It was only in 2023 that the community was finally granted ST status, a recognition long overdue, underscoring the flaws in India’s approach to categorising marginalised groups (here).
The Narikuravars’ pursuit of ST status, however, demonstrates a compelling example of resistance and persistence in the face of marginalisation. When their efforts were ignored at the state level, they shifted their focus to the national government. Since 2016, the community has organised trips to Delhi, where they confronted harsh weather conditions, a lack of shelter, and hunger strikes at Jantar Mantar, all without significant media attention. Their determination remained unshaken, even when, in 2016, a bill proposing their inclusion on the ST list was sidelined due to the nationwide upheaval caused by Prime Minister Modi’s sudden demonetisation announcement. Despite this setback, the Narikuravars returned to their community, educating members about the importance of obtaining ST status and continued their advocacy, ultimately gaining international recognition for their struggle.
This perseverance exemplifies Eslava’s broader argument—while international and national legal frameworks often render Indigenous communities “out of place,” these communities are not passive victims of dislocation. Instead, they engage in dynamic acts of resistance and negotiation, asserting their rights and redefining their identities within and against the systems that marginalise them. The Narikuravars’ journey from local neglect to national activism underscores how Indigenous groups navigate oppressive legal frameworks, seeking not just recognition but a place of agency and empowerment within the state apparatus.
Moreover, the international definition of “indigenous peoples,” such as that provided by the UN Special Rapporteur Jose Martinez Cobo, emphasises historical continuity with pre-invasion societies. However, applying this to India’s indigenous communities creates a dissonance, as India does not neatly fit into the binary of “indigenous” and “settler” populations common in other parts of the world (see Karlsson 2008). The Indigenous experience, therefore, becomes “out of place” even within the global discourse on indigeneity, which tends to universalise definitions and categories that do not accommodate India’s unique historical and social context. This process of categorisation renders Indigenous identities “out of place” within the dominant frameworks of both national and international law, as it fails to capture the fluid and complex nature of their identities.
“Out-of-placeness” also speaks to the experience of resisting imposed identities and asserting self-determination in the face of marginalisation. In India, indigenous communities have continuously resisted both state-led development agendas and global economic pressures that threaten their ways of life. These communities assert their rights to land, resources, and cultural autonomy in ways that do not align neatly with either national or international legal frameworks. For instance, while international law might recognise certain indigenous rights, it also often imposes limitations that protect state sovereignty — thereby undermining more radical forms of indigenous self-determination and activism.
Indigenous communities find themselves in a constant state of negotiation and resistance, striving to carve out a space for their identity, practices, and rights within a legal and political landscape that continually marginalises them. This struggle is emblematic of Eslava’s notion of “out-of-placeness” where indigenous communities are not only physically displaced but also socially and politically marginalised in ways that require them to constantly navigate and contest the frameworks imposed upon them.
Potential Limitations and Risks of Reinforcing Stereotypes of the Global South
While Eslava’s emphasis on dislocation is a compelling critique, there is a potential risk of reinforcing stereotypes of the Global South as inherently chaotic or “out of place.” By framing dislocation as a central theme, Eslava may inadvertently suggest that these regions are defined primarily by their marginalisation, overlooking the agency of local actors who actively resist, reinterpret, or transform international legal norms to suit their own contexts. This perspective could obscure the resilience, creativity, and dynamism of these communities, which are often lost in narratives that focus solely on disempowerment and disorder.
A more balanced approach might recognise both the harms of dislocation and the ways in which communities in the Global South creatively engage with and reshape the legal frameworks that affect them. Such an approach would offer a fuller picture of the Global South, acknowledging its complexities and contradictions without reducing it to a site of perpetual crisis.
For instance, the Pathalgadi movement in Jharkhand exemplifies how indigenous communities resist their marginalisation by reclaiming their rights within and against the state’s legal apparatus (Rao 2020). By erecting large stone plaques inscribed with sections of the Indian Constitution that affirm their rights, Adivasi communities challenge the state’s exclusive authority over legal recognition and jurisdiction. These acts of inscription are not merely symbolic; they are profound assertions of autonomy, creating spaces where indigenous legal traditions and practices can coexist and contest the dominant legal order. The Pathalgadi movement exemplifies how indigenous groups leverage the language and instruments of state law to expose and resist their marginalisation, while simultaneously rearticulating their political and legal status on their own terms.
Such movements demonstrate that Indigenous communities are not passive recipients of international and state laws but are active agents in shaping their destinies. They strategically navigate, reinterpret, and sometimes even subvert legal frameworks to assert their rights and identities, often turning the very tools of marginalisation into instruments of resistance. This active engagement challenges the narrative of Indigenous communities as mere victims of external legal structures and highlights their capacity for agency and self-determination in ways that transcend the constraints imposed by global governance.
One potential area of exploration is how Indigenous communities actively reclaim their sense of place within dislocating legal frameworks. Rather than viewing “out-of-placeness” as a static condition, it could be reframed as a dynamic process through which Indigenous communities navigate, negotiate, and challenge their marginalisation. By incorporating examples of Indigenous activism and legal engagement, the concept can be expanded to account for the agency and resilience of these groups.
Nevertheless, this provocative oversimplification serves Eslava’s purpose—to shock the reader into questioning the complacency of established legal doctrines and to rethink the categories that underpin our understanding of law and belonging. His critique is unapologetically radical, calling for nothing less than a fundamental reimagining of how we conceptualise place, identity, and the role of law in a globalised world. He challenges the reader to see beyond the surface of legal texts and frameworks, to the deeper histories of violence, dispossession, and resistance that have shaped—and continue to shape—our global order.
Conclusion
Eslava’s concept of “out-of-placeness,” as explored in “Trigueño International Law,” offers a transformative framework for rethinking the role and impact of international law, particularly in postcolonial contexts like India. By highlighting how legal frameworks perpetuate conditions of marginalisation and dislocation, Eslava challenges conventional legal thinking that often claims neutrality and stability but, in practice, reinforces existing hierarchies and inequalities. In India, this framework sheds light on the lived realities of Indigenous communities who face ongoing struggles for recognition and rights in a landscape shaped by colonial and postcolonial governance.
The concept of “out-of-placeness” prompts us to reconsider how international law interacts with local identities and contexts. It reveals the limitations of imposing universal definitions of indigeneity that fail to accommodate India’s diverse and complex social realities. By examining movements like Pathalgadi in Jharkhand, where indigenous communities assert their rights within and against the state’s legal apparatus, we see that “out-of-placeness” is not merely a condition to be lamented but a dynamic space of resistance and redefinition.
Ultimately, Eslava’s work encourages us to think critically about how legal norms are constructed, whose interests they serve, and how they impact diverse populations. By using “out-of-placeness” as a tool, we are invited to engage more deeply with the complexities of global governance and to advocate for legal reforms that are more inclusive, context-sensitive, and responsive to the needs of those most affected by these frameworks. This approach not only broadens the practical implications of Eslava’s work but also empowers scholars and practitioners to rethink and reshape the ways in which law operates globally, ultimately striving for a more equitable and just world order.
Shubhangi Agarwalla is currently practising at a law firm in New York where her practice involves litigating and arbitrating commercial, financial, and treaty-based disputes. She is an LL.M. graduate of Yale Law School, where she served as Senior Editor of the Yale Journal on International Law and received the Streicker Award for Student Research in Peru. She holds a bachelor's degree from National Law University, Delhi. All views expressed are personal and do not reflect those of her employer.
Feature Image: Durba Sen, Confetti.
This is part of a book round-table on Out of Place: Fieldwork and Positionality in Law and Society (CUP 2024). Read the other posts here
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