Third World approaches to international law

Third World approaches to international law (TWAIL) is a critical school of international legal scholarshipO. Okafor (2005). "Newness, Imperialism, and International Legal Reform in Our Time: A TWAIL Perspective", Osgoode Hall Law Journal 43(1 & 2), p. 177. and an intellectual and political movement.M. Mutua (2000) "What is TWAIL?", Proceedings of the 94th Annual Meeting of the American Society of International Law: pp. 31-40, p. 38. It is a "broad dialectic opposition to international law",M. Mutua (2000) "What is TWAIL?", Proceedings of the 94th Annual Meeting of the American Society of International Law: pp. 31-40, p. 31. which perceives international law as facilitating the continuing exploitation of the Third World through subordination to the West. TWAIL scholarsL. Eslava, and S. Pahuja (2011). "Between Resistance and Reform: TWAIL and the Universality of International Law", Trade, Law and Development 3(1), p. 26. seek to change what they identify as international law's oppressive aspects through the re-examination of the colonial foundations of international law.

History

Early origins (Generation I) TWAIL was inspired by the decolonization movements that occurred after World War II in Latin America, Africa, and Asia. Symbolically, the conference held in Bandung, Indonesia, in 1955 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.B.S. Chimni (2006) "Third World Approaches to International Law: Manifesto", International Community Law Review 8: pp. 3-27, p. 4.

New age movement (Generation II)

The study of TWAIL and its organization originated from a group of Harvard Law School graduate students in 1996.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. 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: Harvard Law School, 1997 Osgoode Hall Law School, 2001 Albany Law School, 2007 University of British Columbia, 2008K. Mickelson (2008) "Taking Stock of TWAIL Histories", 10 INT. COMMUNITY L. REV. 355 p. 357. Université Paris 1 Panthéon-Sorbonne, 2010 University of Oregon Law School, 2011 American University in Cairo, 2015 Faculty of Law, University of Colombo, 2017 Faculty of Law, National University of Singapore, 2018 UCLA School of Law, 2019

Objectives

TWAIL's main objectives include: Developing an understanding as to how international law perpetuates the subordination of non-Europeans to Europeans through international legal norms; Creating opportunities for Third World participation in international law;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. Proposing an alternative mechanism of international law that coexists with other critiques of the neoliberal approach to international law;B.S. Chimni (2006) "Third World Approaches to International Law: Manifesto", International Community Law Review 8: pp. 3-27, p. 22. Eradicating underdevelopment of the Third World through scholarship, policy, and politics;M. Mutua (2000) "What is TWAIL?", Proceedings of the 94th Annual Meeting of the American Society of International Law: pp. 31-40, p. 31. and Understanding and engaging Third World scholarship in the analysis of international law.

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.M. Mutua, (2000) "What is TWAIL?", Proceedings of the 94th Annual Meeting of the American Society of International Law: pp. 31-40, p. 35.B.S. Chimni (2006) "Third World Approaches to International Law: Manifesto", International Community Law Review 8: pp. 3-27, p. 4-5. TWAIL emphasizes that even after the end of the Cold War, the Third World is still a political reality. Some TWAIL scholars believe this distinction to be even more alive today, due to the aggregation of diversification of states based on economic development. 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.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. 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.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.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.B.S. Chimni (2006) "Third World Approaches to International Law: Manifesto", International Community Law Review 8: pp. 3-27, p. 7. TWAIL reevaluates the power relationships of the current world order to eradicate the racial hierarchy and oppression present in international law.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.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.B.S. Chimni (2006) "Third World Approaches to International Law: Manifesto", International Community Law Review 8: pp. 3-27, p. 26. Although the goal is common, the methods employed to effect those changes vary. Hence, TWAIL is a diverse and ‘coalitionary movement’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. – its scholars use different methodologies like Marxism, feminism and critical race theory. Therefore, there is no elaborate common TWAIL doctrine,M. Mutua (2000) "What is TWAIL?", Proceedings of the 94th Annual Meeting of the American Society of International Law: pp. 31-40.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. but all TWAIL scholars are nevertheless united in their struggle for the greater involvement of Third World peoples in international law.

International Law

TWAIL 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.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. They refuse to accept the universal character of the international legal system, as it emerged solely from the European and Christian tradition.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.M. Mutua (2000) "What is TWAIL?", Proceedings of the 94th Annual Meeting of the American Society of International Law: pp. 31-40.B.S. Chimni (2006) "Third World Approaches to International Law: Manifesto", International Community Law Review 8: pp. 3-27, p. 15.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. 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.M. Mutua (2000) "What is TWAIL?", Proceedings of the 94th Annual Meeting of the American Society of International Law: pp. 31-40, p. 34.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. Amongst the modern forms of domination, TWAIL scholars include:

The limitation of the Third World states’ sovereignty through transferring their autonomous powers to international institutions controlled by the First World The arbitrary application of the humanitarian intervention The internationalization of proprietary rights

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 oppositionalO. Okafor (2005). "Newness, Imperialism, and International Legal Reform in Our Time: A TWAIL Perspective", Osgoode Hall Law Journal 43(1 & 2). p. 176. in their approach. Nevertheless, the scholars, in a decentralized network, share a common concern for the Third World. Some of them teach TWAIL courses at various universities around the world.

First Generation O. Okafor (2005). "Newness, Imperialism, and International Legal Reform in Our Time: A TWAIL Perspective", Osgoode Hall Law Journal 43(1 & 2). p. 177. R.P. Anand Upendra Baxi Mohammed Bedjaoui Keba M'baye Christopher Weeramantry Georges Abi-Saab

Second Generation Antony Anghie Bhupinder Chimni Makau Wa Mutua Obiora Chinedu Okafor Sylvia Tamale Michael Fakhri

Criticism