The TWAIL discourse: The emergence of a new phase

International Community Law Review

Volumn 9, Issue 3, 2007, Pages 291-304

  Khosla, Madhav ^a  

^a NATIONAL LAW SCHOOL OF INDIA UNIVERSITY   (India)

Author keywords

International law and 9 11; International law and terrorism; Third world approaches to international law; TWAIL

Indexed keywords

EID: 35548997536     PISSN: 18719740     EISSN: 18719732     Source Type: Journal    
DOI: 10.1163/187197407X231253     Document Type: Article

References (84)

1. J.L. Kunz, "Pluralism of Legal and Value Systems and International Law", 49 American Journal of International Law 370 (1955) pp. 373-374.
2. I use the word 'misfortune' with caution, not to suggest that international law does not deserve the criticism it has attracted (or to suggest that it does), but rather to mean that international law has always faced opposition both in theory and in practice.
3. Hart too accepted that "the question 'Is international law really law?' can hardly be put aside". See H.L.A. Hart, The Concept of Law (2nd ed., 1994) p. 214. According to Lloyd, the ineffectiveness of International law was inevitable: "In a world containing a variety of conflicting ideologies, some of which are entirely or in important respects diametrically opposed, it is not surprising that international law is likely to be ineffective in many fields, and also to reflect the basic uncertainties and divergences of outlook of the countries which nevertheless acknowledge its authority."
4. See D. Lloyd, The Idea of Law (1964) p. 225. Brownlie, on the other hand, strove hard to demonstrate the effectiveness of international law and concluded that if international law was in fact ineffective, it was not a consequence of any inherent qualities of international law: "Whether in a given situation the law is ultimately 'effective' is a question of taste, in order words it is a matter of political and moral evaluation. When the law is seen to be 'ineffective', the cause is not 'the law' but the absence of organization, political will, sufficient personnel or funding, and so forth. Law, whether national or international, is not a source of alibis for politicians and administrators."
5. See I. Brownlie, "The Reality and Efficacy of International Law", 52 British Year Book of International Law 1 (1981) p. 8.
6. Scholars have long contended that international law is unfair in theory and does not accurately represent the world to which it is applicable. TWAIL scholars are an important part within this group.
7. A.A. Fatouros, "International Law and the Third World", 50 Virginia Law Review 783 (1964).
8. Certain feminists argue that international law does not take into account the voices of women. This view is excellently brought out in H. Charlesworth et al., "Feminist Approaches in International Law" 85 American Journal of International Law 613 (1991).
9. See also H. Charlesworth, "Feminist Methods in International Law", 93 American Journal of International Law 392 (1999). Another approach to have recently emerged is the race approach to international law, that argues that the issue of race has not been given the importance it is due in international law,
10. see E. Roman, "A Race Approach to International Law (RAIL): Is There a Need For Yet Another Critique of International Law", 33 U.C. Davis Law Review 1519 (2000).
11. A.A. Fatouros, supra note 5, pp. 785-794.
12. On the relationship between international law and colonization, it is useful to examine A. Riles, "Aspiration and Control: International Legal Rhetoric and the Essentialization of Culture", 106 Harvard Law Review 723 (1993).
13. See K. Aoki, "Space Invaders: Critical Geography, the "Third World' in International Law and Critical Race Theory", 45 Villanova. Law Review 913 (2000) pp. 924-931.
14. See B.R. Tomlinson, "What Was the Third World", 38 Journal of Contemporary History 307 (2003).
15. K. Mickelson, "Rhetoric and Rage: Third World Voices in International Legal Discourse", 16 Wisconsin International Law Journal 353 (1998) p. 356. According to Fatouros the third world includes all those states that are distinct from both the economically developed states of the West and the developed or semi-developed states of the Soviet Bloc, whether or not this distinction has arisen due to economic factors or cultural reasons,
16. see, supra note 5, at page 784.
17. For an articulation of this view, see M. Williams, "Rearticulating the Third World Coalition: The Role of the Environmental Agenda", 14 Third World Quarterly 7 (1993).
18. R.E. Galli, "Introduction", in R.E. Galli (ed.), Rethinking the Third World: Contributions toward a New Conceptualisation (1992) p. xv.
19. A. Anghie, "Time Present and Time Past: Globalization, International Financial Institutions, and the Third World", 32 New York University Journal of International Law and Politics 243 (2000).
20. K. Mickelson, supra note 11, p. 360. Mickelson adopts this definition of the 'third world' and goes on to eloquently describe the approach as one that "speaks of the Third World not as a bloc, but as a distinctive voice, or, more accurately, as a chorus of voices that blend, though not always harmoniously, in attempting to make heard a common set of concerns".
21. B. Rajagopal, "Locating the Third World in Cultural Geography", Third World Legal Studies 1 (1998-99) pp. 1.-2.
22. B.S. Chimni, "Third World Approaches to International Law: A Manifesto", 8 International Community Law Review 3 (2006) p. 5.
23. S.R. Ratner and A. Slaughter argue that this is the aim of focus of the new wave of scholars which have been influenced by the critical legal studies movement, see S.R. Ratner and A. Slaughter, "Appraising the Methods of International Law: A Prospectus for Readers", 93 American Journal of International Law 291 (1999) p. 294.
24. See J.T. Gathii, "Rejoinder: Twailing International Law", 98 Michigan Law Review 2066 (2000) p. 2067, where Gathii notes that the "law does not stand outside the raw interests of states, but it produces those interests as much as it is the product of them".
25. Whether international law has any purpose at all is a much broader philosophical question that I would not attempt to answer in this paper. Suffice it to say that initially international law was regarded as an instrument for "the maintenance of international relations on the basis of law and justice", see P.B. Potter, "The Need for a Return to International Law", 45(3) American Journal of International Law 538 (1951). However, with the development of international law over time one may state that it is today, in theory, meant to serve a far broader purpose that extends beyond merely international relations.
26. See T.M. Franck, Fairness in International Law and Institutions (1995).
27. See also G.J. Simpson, "Is International Law Fair?", 17 Michigan Journal of International Law 615 (1996).
28. R.P. Anand, "Development and Environment: The Case of the Developing Countries", 24 Indian Journal of International Law 1 (1980) p. 16.
29. See J.T. Gathii, "International Law and Eurocentricity", 9 European Journal of International Law 203 (1998).
30. M. Mutua, "What is Twail?", 94 American Society of International Law Proceedings 31 (2000) p. 36.
31. See J.T. Gathii, supra note 23.
32. J.T. Gathii, "Alternative and Critical: The Contribution of Research and Scholarship on Developing Countries to International Legal Theory", 41 Harvard International Law Journal 263 (2000) p. 266.
33. See also O.C. Okafor, "After Matyrdom: International Law, Sub-State Groups, and the Construction of Legitimate Statehood, in Africa", 41 Harvard International Law Journal 503 (2000).
34. M. Mutua, Supra note 24.
35. D.P. Fidler, "Revolt Against or from within the West? Twail, the Developing World, and the Future Direction of International Law", 2 Chinese Journal of International Law 29 (2003) p. 69.
36. For a comprehensive argument in support of this view, see J. Ngugi, "Making New Wine for Old Wineskins: Can the Reform of International Law Emancipate the Third World in the Age of Globalization?" 8 U.C. Davis Journal of International Law and Policy 73 (2002).
37. J.T. Gathii, supra note 26, p. 273.
38. B.S. Chimni, "Towards a Radical Third World Approach to Contemporary International Law", 5 International Center for Comparative Law and Politics Review 14 (2002) p. 15.
39. A. Anghie and B.S. Chimni, "Third World Approaches to International Law and Individual Responsibility in Internal Conflicts", 2 Chinese Journal of International Law 77 (2003) pp. 79-84.
40. Ibid
41. See also G. Abi-Saab, "The Development of International Law by the United Nations", in F. Snyder and S. Sathirathai (eds.), Third World Attitudes to International Law: An Introduction (1987) p. 221.
42. A. Anghie and B.S. Chimni, supra note 31.
43. A. Anghie and B.S. Chimni, supra note 31;
44. See also B. Rajagopal, International Law from Below: Development, Social Movements, and Third World Resistance (2003).
45. A detailed examination of the weaknesses in the TWAIL I discourse is provided by Chimni. See B.S. Chimni, supra note 33, pp. 16-18.
46. For an excellent and recent example of such an attempt by TWAIL scholars, see B.S. Chimni, "Third World Approaches to International Law: A Manifesto", 8 International Community Law Review 3 (2006).
47. M. Flory, "Adapting International Law to the Development of the Third World", 26 Journal of African Law 12 (1982) p. 16.
48. B. Rajagopal, "International Law and the Development Encounter: Violence and Resistance at the Margins", 93 American Society of International Law Proceedings 16 (1999) pp. 16-17.
49. B. Rajagopal, "From Resistance to Renewal: The Third World, Social Movements, and the Expansion of International Institutions", 41 Harvard International Law Journal 529 (2000).
50. See generally B. Rajagopal, supra note 3.5, pp. 135-162.
51. but see J. Li, "International Law from Below: Development, Social Movements, and Third World Resistance, by Balakrishnan Rajagopal", 8 Yale Human Rights and Development Law Journal 234 (2005), for the argument that Rajagopal "fails to take sufficient account of the political contexts of third world social movements. Nor does he offer a feasible alternative to the existent international law and institutions".
52. Id. (B. Rajagopal, "From Resistance to Renewal: The Third World, Social Movements, and the Expansion of International Institutions").
53. T.M. Franck, supra note 21, pp. 6-7.
54. See generally A.L. Chua, "The Paradox of Free Market Democracy: Rethinking Development Policy", 41 Harvard International Law Journal 287 (2000);
55. E.M. Fox, "Equality, Discrimination, and Competition Law: Lessons from and for South Africa and Indonesia", 41 Harvard International Law Journal 579 (2000);
56. K.J. Vandevelde, "The Economics of Bilateral Investment Treaties", 41 Harvard International Law Journal 469 (2000).
57. See generally A. Anghie, supra note 14, pp. 246-275.
58. O.C. Okafor, "Newness, Imperialism, and International Legal Reform in Our Time: A TWAIL Perspective", 43 Osgoode Hall Law Journal 171 (2005) p. 173.
59. It should be pointed out that terrorism is not the only new development on the international front post 9/11 that is relevant to the TWAIL discourse, although this is the area that I have mainly dealt with in this paper. Another important area is that of international environmental law. The debate around various environmental issues has greatly intensified in recent years and has led. to an increased tension between the first world and the third world. For an understanding of the nature of this debate and the role of TWAIL scholarship in this regard post 9/11, see K Mickelson, "Leading Towards a Level Playing Field, Repaying Ecological Debt, or Making Environmental Space: Three Stories About International Environmental Cooperation", 43 Osgoode Hall Law Journal 137 (2005).
60. For literature in support of the pre-emption doctrine and for the argument that the Iraq war was legal, see E. Zoller, "The Law Applicable to the Pre-emption Doctrine" 98 American Society International Review 333 (2004);
61. A.D. Sofaer, "On the Necessity of Pre-emption" 14 European Journal of International Law 209 (2003);
62. W.H. Taft IV, "The Legal Basis for Preemption" (2002), online: Council on Foreign Relations 〈http://www.cfr.org/publication.php?id= 5250〉
63. W.H. Taft IV and T.F. Buchwald, "Preemption, Iraq, and International Law", 97 American Journal of International Law 557 (2003).
64. Id (W.H. Taft IV).
65. W.H. Taft IV and T.F. Buchwald, supra note 47.
66. J.T. Gathii, "Assessing Claims of a New Doctrine of Pre-Emptive War under the Doctrine of Sources", 43 Osgoode Hall Law Journal 67 (2005) pp. 101-102.
67. Id.
68. See R.A. Falk, "Rediscovering International Law after September 11 th", 16 Temple International and Comparative Law Journal 359 (2002), for an articulation of the argument that the world has significantly altered post 9/11 and that an evolution in international law is required to meet the changed circumstances of the world.
69. A. Anghie, "The War on Terror and Iraq in Historical Perspective", 43 Osgoode Hall Law Journal 45 (2005) p. 64.
70. O.C. Okafor, supra note 44, p. 182.
71. E. W. Said, Representations of the Intellectual (1994) pp. 89-90.
72. TWAIL scholarship has been instrumental in pointing out crucial cultural differences between the first world and the third world, and how this cultural relativism attacks the generally understood notion of the universality of human rights. On the debate concerning the universality of human rights, see L. Henkin, "The Universality of the Concept of Human Rights", 506 Annals of the American Academy of Political and Social Science 10 (1989);
73. J. O'Manique, "Universal and Inalienable Rights: A Search for Foundations", 12 Human Rights Quarterly 465 (1990);
74. C. Cerna, "Universality of Human Rights and Cultural Diversity: Implementation of Human Rights in Different Socio-Cultural Contexts", 16 Human Rights Quarterly 740 (1994);
75. F. Dallmayr, " 'Asian Values' and Global Human Rights", 52 Philosophy East and West 173 (2002).
76. See S.J. Canner, "The Multilateral Agreement on Investment", 31 Cornell International Law Journal 657 (1998);
77. P.T. Muclilinski, "The Rise and Fall of the Multilateral Agreement on Investment: Where Now?", 34 International Lawyer 1039 (1999);
78. D. P. Fidler, supra note 28, p. 58.
79. Declaration on the TRIPS Agreement and Public Health, World Trade Organization, Ministerial Declaration of 14 November 2001, WT/MIN(01)/DEC/1, 41 I.L.M. 746 (2002).
80. Agreement on Trade-Related. Aspects of Intellectual Property Rights of 15 April 1994, 33 I.L.M. 81 (1994). Hereinafter referred to as the TRIPS Agreement.
81. See D.P. Fidler, supra note 28, pp. 58-61.
82. M.A. Santoro, "Human Rights and Human Needs: Diverse Moral Principles Justifying Third World Access to Affordable HIV/AIDS Drugs", 31 North Carolina Journal of International Law and Commercial Regulation 923 (2006), p. 942.
83. For example, Shalakany illustrates this in relation to the TWAIL claim of disciplinary bias in international commercial arbitration, see A.A. Shalakany, "Arbitration and the Third World: A. Plea for Reassessing Bias under the Specter of Neoliberalism", 41 Harvard International Law Journal 419 (2000).
84. The sensitive nature of terrorism and the emotions is creates is evidenced and can be better understood by examining the attitude of the American public that has not responded with the same intensity to climate change as it has to terrorism. See C. Sunstein, "On Divergent American Reactions to Terrorism and Climate Change", 107 Columbia Law Review 503 (2007).