Third World approaches to international law

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Third World approaches to international law (TWAIL) is a critical school of international legal scholarship [1] and an intellectual and political movement. [2] It is a "broad dialectic opposition to international law", [3] which perceives international law as facilitating the continuing exploitation of the Third World through subordination to the West. TWAIL scholars [4] seek to change what they identify as international law's oppressive aspects through the re-examination of the colonial foundations of international law. [2]

Contents

History

Early origins (Generation I)

TWAIL was inspired by the decolonization movements that occurred after World War II [3] in Latin America, Africa, and Asia. [1] Symbolically, the conference held in Bandung, Indonesia, in 1955 [3] is seen as the birthplace of TWAIL, as it was the first attempt by African and Asian states to create a coalition to address the issues specific to the Third World. TWAIL came about to address the material and ethical concerns as well as hardships of the Third World. [5]

New age movement (Generation II)

The study of TWAIL and its organization originated from a group of Harvard Law School graduate students in 1996. [6] Subsequent to a conference regarding post-colonialism, critical race theory and law and development studies held at Harvard Law School in December 1995, graduate students held a meeting to analyze the viability of creating third world approaches to international law. TWAIL scholars have subsequently held conferences at various universities:

Objectives

TWAIL's main objectives include:

Concepts

Third World

According to TWAIL scholars, the Third World is a group of states which are politically, economically, and culturally diverse, but are simultaneously united in their common history of colonialism. [18] [19] TWAIL emphasizes that even after the end of the Cold War, the Third World is still a political reality. [18] Some TWAIL scholars believe this distinction to be even more alive today, due to the aggregation of diversification of states based on economic development. [19] They underline that the maintenance of the unity of the Third World is crucial in combating the continuing domination of the First World and that the term has no pejorative connotation. [20] The First World is considered to be the group of states engaged in imperial practices and which continue to dominate global politics and economics.

Approaches

TWAIL reconsiders the history and development of international law and highlights the colonial legacy inherent in it. [21] [22] [23] TWAIL reevaluates the power relationships of the current world order to eradicate the racial hierarchy and oppression present in international law. [24] [25] [26] Although the goal is common, the methods employed to effect those changes vary. Hence, TWAIL is a diverse and ‘coalitionary movement’ [2] [27] – its scholars use different methodologies like Marxism, feminism and critical race theory. Therefore, there is no elaborate common TWAIL doctrine, [28] [29] but all TWAIL scholars are nevertheless united in their struggle for the greater involvement of Third World peoples in international law.

International Law

TWAI: scholars underline that international law was created during the colonial era and that it was used to legitimize the global processes of marginalization and domination of the colonized people by Western powers. [30] They refuse to accept the universal character of the international legal system, as it emerged solely from the European and Christian tradition. [31] [32] [33] [34] In contrast, Third World countries were assimilated by force into the international legal system, which does not reflect their diverse heritage. TWAIL scholars reject the idea that after the end of World War II international law has moved on from its imperialistic origins. Although the system appears to be legitimized by recognizing human rights and the right to self-determination, TWAIL scholars believe that international law is still a tool of oppression and that decolonization processes were merely illusory. [35] [36] Amongst the modern forms of domination, TWAIL scholars include:

TWAI scholars also emphasizes the inability of Third World leaders to secure the interests of their people and their failed opposition to the First World hegemony, which further hinders the struggle for the liberation of Third World peoples. However, TWAIL highlights that some concepts in international law simultaneously serve as both an instrument of oppression and emancipation – like the international human rights regime, which not only justifies the internationalization of property rights but also the protection of peoples’ freedoms. Hence TWAIL scholars recognize that some elements of the system need to be preserved.

Scholars

TWAIL is not a uniform school of thought and TWAIL scholars do not take a unanimous stance. Some of them are more reconstructionist while others are more oppositional [37] in their approach. Nevertheless, the scholars, in a decentralized network, share a common concern for the Third World. [29] Some of them teach TWAIL courses at various universities around the world.

First Generation

[38]

Second Generation

Criticism

TWAIL scholars are sometimes accused of having a nihilistic approach. David P. Fidler, [39] Jose Alvarez and Naz K. Modirzadeh [40] criticize TWAIL for offering no positive agenda for action or reform in international law and relations. Alvarez uses the example of the genocide in Sudan and TWAIL scholars' refusal to subscribe to the lobbying of the Security Council to take the desired action in the case. [41] Alvarez's own work contains many TWAIL-like themes and he has often been just as critical of certain liberal approaches to international law as TWAIL scholarship has been. Post-structuralist critiques of TWAIL assert that the argumentative logic of TWAIL ultimately operates according to the very conservative analytical framework it sets out to transcend. [42]

It has also be pointed out that the TWAIL movement, itself, was shaped by Europeans and North Americans, while purporting to speak on behalf of the "Third World." [43] Naz K. Modirzadeh has observed that "[t]he vast majority of TWAIL scholarship is produced and published in the Global North. Virtually all TWAIL gatherings have been organized and funded by Global North institutions, even in the rare event that they have physically taken place in the Global South." [44]

In a recent 2020 study, the TWAIL movement was criticised in relation to it justifying Civilizational Colonialism in the sensitive areas of High Asia (a metaphoric categorisation) in which many areas were included like Kashmir, Hazara, Nuristan, Laghman, Azad Kashmir, Jammu, Himachal Pradesh, Ladakh, Gilgit Baltistan, Chitral, Western Tibet, Western Xinjiang, Badakhshan, Gorno Badakhshan, Fergana, Osh and Turkistan Region. These rich resource areas are surrounded by the five major mountainous systems of Tien Shan, Pamirs, Karakoram, Hindu Kush and Western Himalayas and the three main river systems of Amu Darya, Syr Darya and Indus. The work highlights the role of United States, China, Russia, UK, India, Pakistan, Afghanistan, Kazakhstan, Uzbekistan, Kyrgyzstan, Tajikistan, Turkey, Iran and other players involved in The New Great Game over who will dominate High Asia. The work criticises TWAILers for ignoring sensitive areas like these and further tries to explore Pan-High Asianism and High Asian Approaches to International Law (HAAIL) as the potential way forward for the region which can be sub-categorised into the Western Pahari, Greater Dardic, Trans-Himalayan, Badakhshan and Sogdiana Belts. [45]

See also

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References

Footnotes

  1. 1 2 O. Okafor (2005). "Newness, Imperialism, and International Legal Reform in Our Time: A TWAIL Perspective", Osgoode Hall Law Journal 43(1 & 2), p. 177.
  2. 1 2 3 M. Mutua (2000) "What is TWAIL?", Proceedings of the 94th Annual Meeting of the American Society of International Law: pp. 31-40, p. 38.
  3. 1 2 3 4 M. Mutua (2000) "What is TWAIL?", Proceedings of the 94th Annual Meeting of the American Society of International Law: pp. 31-40, p. 31.
  4. ↑ L. Eslava, and S. Pahuja (2011). "Between Resistance and Reform: TWAIL and the Universality of International Law", Trade, Law and Development 3(1), p. 26.
  5. ↑ B.S. Chimni (2006) "Third World Approaches to International Law: Manifesto", International Community Law Review 8: pp. 3-27, p. 4.
  6. ↑ J. T. Gathii (2011) "TWAIL: A Brief History of its Origins, its Decentralized Network and a Tentative Bibliography", Trade, Law and Development, 3(1): pp. 26-48, p. 28.
  7. ↑ "TWAIL III: The Third World and International Law". Opinio Juris (blog). 18 April 2007. Retrieved 27 November 2021.
  8. 1 2 3 K. Mickelson (2008) "Taking Stock of TWAIL Histories", 10 INT. COMMUNITY L. REV. 355 p. 357.
  9. ↑ "Archived copy" (PDF). Archived from the original (PDF) on 4 March 2016. Retrieved 31 December 2015.{{cite web}}: CS1 maint: archived copy as title (link)
  10. ↑ "Third World Approaches to International Law Conference (TWAIL) | WAYNE MORSE CENTER FOR LAW AND POLITICS". Archived from the original on 17 January 2013. Retrieved 23 October 2012.
  11. ↑ "Archived copy" (PDF). Archived from the original (PDF) on 24 September 2015. Retrieved 11 July 2014.{{cite web}}: CS1 maint: archived copy as title (link)
  12. ↑ "Workshop on Third World Approaches to International Law - Faculty of Law, University of Colombo". Archived from the original on 9 April 2017. Retrieved 9 April 2017.
  13. ↑ "NUS - Faculty of Law : Asia's Global Law School | TWAIL". Archived from the original on 11 July 2018. Retrieved 3 July 2018.
  14. ↑ "Critical Perspectives on Race and Human Rights: Transnational Re-Imaginings". law.ucla.edu. Retrieved 14 October 2019.
  15. 1 2 J. T. Gathii (2011) "TWAIL: A Brief History of its Origins, its Decentralized Network and a Tentative Bibliography", Trade, Law and Development, 3(1): pp. 26-48, pp. 8-9.
  16. ↑ B.S. Chimni (2006) "Third World Approaches to International Law: Manifesto", International Community Law Review 8: pp. 3-27, p. 22.
  17. ↑ M. Mutua (2000) "What is TWAIL?", Proceedings of the 94th Annual Meeting of the American Society of International Law: pp. 31-40, p. 31.
  18. 1 2 M. Mutua, (2000) "What is TWAIL?", Proceedings of the 94th Annual Meeting of the American Society of International Law: pp. 31-40, p. 35.
  19. 1 2 B.S. Chimni (2006) "Third World Approaches to International Law: Manifesto", International Community Law Review 8: pp. 3-27, p. 4-5.
  20. ↑ M. Mutua (2000) "What is TWAIL?", Proceedings of the 94th Annual Meeting of the American Society of International Law: pp. 31-40, pp. 35-36.
  21. ↑ A. Anghie; B.S. Chimni (2003) "Third World Approaches to International Law and Individual Responsibility in Internal Conflicts", Chinese Journal of International Law 2(1): pp. 77-103, p. 78 and p. 84.
  22. ↑ J. T. Gathii (2011) "TWAIL: A Brief History of its Origins, its Decentralized Network and a Tentative Bibliography", Trade, Law and Development, 3(1): pp. 26-48. p. 31.
  23. ↑ B.S. Chimni (2006) "Third World Approaches to International Law: Manifesto", International Community Law Review 8: pp. 3-27, p. 7.
  24. ↑ A. Anghie; B.S. Chimni (2003) "Third World Approaches to International Law and Individual Responsibility in Internal Conflicts", Chinese Journal of International Law 2(1): pp. 77-103, pp. 78-79.
  25. ↑ J. T. Gathii (2011) "TWAIL: A Brief History of its Origins, its Decentralized Network and a Tentative Bibliography", Trade, Law and Development, 3(1): pp. 26-48. p. 35.
  26. ↑ B.S. Chimni (2006) "Third World Approaches to International Law: Manifesto", International Community Law Review 8: pp. 3-27, p. 26.
  27. ↑ J. T. Gathii (2011) "TWAIL: A Brief History of its Origins, its Decentralized Network and a Tentative Bibliography", Trade, Law and Development, 3(1): pp. 26-48. p. 37.
  28. ↑ M. Mutua (2000) "What is TWAIL?", Proceedings of the 94th Annual Meeting of the American Society of International Law: pp. 31-40.
  29. 1 2 J. T. Gathii (2011) "TWAIL: A Brief History of its Origins, its Decentralized Network and a Tentative Bibliography", Trade, Law and Development, 3(1): pp. 26-48. p. 27.
  30. ↑ J. T. Gathii (2011) "TWAIL: A Brief History of its Origins, its Decentralized Network and a Tentative Bibliography", Trade, Law and Development, 3(1): pp. 26-48. p. 26, 34, 38.
  31. ↑ J. T. Gathii (2011) "TWAIL: A Brief History of its Origins, its Decentralized Network and a Tentative Bibliography", Trade, Law and Development, 3(1): pp. 26-48. p. 42.
  32. ↑ M. Mutua (2000) "What is TWAIL?", Proceedings of the 94th Annual Meeting of the American Society of International Law: pp. 31-40.
  33. ↑ B.S. Chimni (2006) "Third World Approaches to International Law: Manifesto", International Community Law Review 8: pp. 3-27, p. 15.
  34. ↑ A. Anghie; B.S. Chimni (2003) "Third World Approaches to International Law and Individual Responsibility in Internal Conflicts", Chinese Journal of International Law 2(1): pp. 77-103, p. 84.
  35. ↑ M. Mutua (2000) "What is TWAIL?", Proceedings of the 94th Annual Meeting of the American Society of International Law: pp. 31-40, p. 34.
  36. ↑ J. T. Gathii (2011) "TWAIL: A Brief History of its Origins, its Decentralized Network and a Tentative Bibliography", Trade, Law and Development, 3(1): pp. 26-48, p. 39.
  37. ↑ O. Okafor (2005). "Newness, Imperialism, and International Legal Reform in Our Time: A TWAIL Perspective", Osgoode Hall Law Journal 43(1 & 2). p. 176.
  38. ↑ O. Okafor (2005). "Newness, Imperialism, and International Legal Reform in Our Time: A TWAIL Perspective", Osgoode Hall Law Journal 43(1 & 2). p. 177.
  39. ↑ J. T. Gathii (2011) "TWAIL: A Brief History of its Origins, its Decentralized Network and a Tentative Bibliography", Trade, Law and Development, 3(1): pp. 26-48. p. 43 and D.P. Fidler (2003) "Revolt Against or From Within the West? TWAIL, the Developing World, and the Future Direction of International Law", 2(1) Chinese Journal of International Law 29.
  40. ↑ Modirzadeh, Naz K. (31 March 2023). "'[L]et Us All Agree to Die a Little': TWAIL's Unfulfilled Promise". SSRN   4406477.{{cite journal}}: Cite journal requires |journal= (help)
  41. ↑ Alvarez, José E. (28 September 2010). "My Summer Vacation (Part III): Revisiting TWAIL in Paris".
  42. ↑ Haskell, John D. (4 March 2014). "TRAIL-ing TWAIL: Arguments and Blind Spots in Third World Approaches to International Law". SSRN Electronic Journal. doi:10.2139/ssrn.2481693 – via CrossRef.
  43. ↑ @VidigalGeraldo (7 September 2020). "Incidentally, if we talked about the origins of deconstruction and TWAIL,..." (Tweet). Archived from the original on 7 September 2020 – via Twitter.
  44. ↑ Modirzadeh, Naz K. (31 March 2023). "'[L]et Us All Agree to Die a Little': TWAIL's Unfulfilled Promise": 30. SSRN   4406477.{{cite journal}}: Cite journal requires |journal= (help)
  45. ↑ Sharma, Vishal (2020). Civilizational Colonialism and the Ongoing New Great Game in the Sensitive Areas of High Asia: Exploring Pan-High Asianism as the potential way forward for the Western Pahari, Greater Dardic, Trans-Himalayan, Badakhshan and Sogdiana Belts possibly leading to High Asian Approaches to International Law (HAAIL). Academia (Thesis). Cardiff: Cardiff University. Retrieved 27 September 2021.

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