TWAIL

Authors: Shubhangi Agarwalla, Sué González Hauck, Thamil Venthan Ananthavinayagan

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Preliminary Remarks

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A. Introduction to TWAIL: Method and Movement

B. Points of Departure and TWAIL Trajectories

I. Introduction to the Concepts of the Third World and the Global South

The term ‘Third World’ originates from the time of the bipolar Cold War opposition between the First World, comprised of the member states of the North Atlantic Treaty Organization (NATO), and the Second World, organized in the Warsaw Pact, in the second half of the 20^th century. The Third World rallied not only around the idea of non-alignment but also around a shared history of being subjected to European colonialism. As a politically institutionalised project, the Third World took shape in several conferences, of which the Afro-Asian meetings in Bandung^[1] in 1955 and in Cairo in 1961, the inaugural conference of the Non-Aligned Movement in Belgrade in 1961, and the Tricontinental Conference in Havana in 1966 stand out.^[2] Today, the term ‘Third World’ has been partially replaced by the term ‘Global South’. This latter term bears less direct links to the Cold War bloc opposition and points instead at a critique of the kind of neoliberal globalization that gained traction in the 1990s after the collapse of the Soviet Union.

II. Engaging with the Colonial Legacies of International Law

The main aspect that unites TWAIL scholarship despite the heterogeneity of the movement is the shared endeavour of grappling with international law's colonial legacies.^[3] Several influential TWAIL authors, including Antony Anghie, Sundhya Pahuja, and, most recently, Ntina Tzouvala have examined the structure of international legal arguments through history to show how colonial and racist thought animates international law. Anghie argues that it is the 'dynamic of difference' which generates the concepts and dichotomies that are fundamental to the formation of international law.^[4] With the term 'dynamic of difference', Anghie refers to the conceptual tools positivist international lawyers deployed to, first, postulate a gap between the civilised European and the uncivilised non-European world and, second, to construct and employ techniques to bridge this gap, i.e. to civilise the uncivilised, to engage in the civilising mission.^[5] The civilising mission, the idea that non-European peoples are savages, barbaric, backward, violent and that European peoples thus must educate, convert, redeem, develop, pacify – in short, cilivise – them has been used to justify continues intervention by European countries and other countries of the Global North – the West – in Third World countries.^[6]

Pahuja emphasises that international law constructs its own subjects and objects. It does not merely rely on a number of foundational notions, such as the state, the international, or the law. Nor does it merely apply to objects external to it, like the economy. Rather, through definitions that make categorial cuts between what is inside and outside certain categories, international law produces these categories even though it is deemed to be founded on them.^[7] As the production of international law's foundational concepts has occurred through the colonial encounter and through the particular contexts of several imperial and post-imperial projects, the shape these concepts gained is determined by these very particular contexts. Simultaneously, however, international law posits the legal categories it produces as universally true. It is the interplay between international law's self-formation in (post)colonial contexts and international law's universalising gestures that produce what Pahuja calls international law's 'critical instability'.^[8] 'The instability is ‘critical’ in both senses of the word, for it is simultaneously a threat to the reach and existence of international legality and an essential, generative dimension of it'.^[9] Pahuja's work has focused on how the potential offered by this critical instability, a potential of pointing out international law's shortcomings in terms of its own aspirations towards universal justice and thus using international law in emancipatory ways, has been repeatedly contained by a ruling rationality.

A key dimension of that rationality is the position of development and economic growth vis-à-vis international law. The combination of the promise offered by international law’s critical instability and the subsumption by the ruling rationality of efforts to take up that promise explains international law’s dual quality, or its puzzling tendency to exhibit both imperial and counter-imperial dimensions.^[10]

Ntina Tzouvala focuses on the standard of civilisation as a set of argumentative patterns, which oscillate between two modes of distinguishing between 'the West and the rest'. The first is what she calls the 'logic of biology'. It is based on biological racism and the isurmountable barriers it erects against colonised and formerly colonised peoples gaining equal rights and obligations under international law. The second, the 'logic of improvement' in Tzouvala's terminology, replaces definitive exclusion with conditional inclusion, offering peoples of the 'Third World' a prospect for gaining equal rights and obligations. The condition for gaining such equal recognition, as Tzouvala argues, has been capitalist transformation.^[11]

III. History of TWAIL as a Movement

TWAIL as a rubric for an academic movement emerged in Harvard in 1996.^[12] To acknowledge the intellectual tradition within which scholars who started calling themselves TWAIL scholars in the 1990s were working, Antony Anghie and B.S. Chimni coined the term ‘TWAIL I’ and ‘TWAIL II’. With the term TWAIL I, Anghie and Chimni referred to scholars like Georges Abi-Saab, F. Garcia-Amador, R.P. Anand, Mohammed Bedjaoui, and Taslim O. Elias, the first generation of international law scholars from newly independent states, who grappled with the exclusions that a Eurocentric and colonial international law had produced.^[13] TWAIL II scholars started building on the legacy of the aforementioned scholars while further developing the analytical tools necessary to engage with international law from a Third World perspective. This meant taking a critical stance towards some of the main tenets of TWAIL I thought. TWAIL II scholars shifted their attention and normative commitment from the post-colonial state to the people living in the Third World, which allowed for analyses that could take into account the violence within post-colonial states as well as conflicts generated by class, race, and gender.^[14] Additionally, the shift from TWAIL I to TWAIL II meant a shift in general attitudes regarding the role of colonialism in international law. While TWAIL I scholars had treated colonialism as an aberration, which could be broken with and remedied by using and slightly modifying the techniques of the existing international legal order, TWAIL II scholars turned to the history and theory of international law to show how colonialism has been a central and defining feature of the formation of international law.^[15]

C. TWAIL Engagements with Core International Law Doctrines

I. Third World Approaches to the State in International Law

II. Third World Approaches to the Sources of International Law

III. Third World Approaches to International Human Rights Law

IV. Third World Approaches to International Economic Law

D. TWAIL Methodologies

I. TWAIL and the Turn to History

Methodologically, one of the main characteristics of TWAIL scholarship is its focus on history. 'History matters', as Luis Eslava reaffirms as the first of five TWAIL coordinates, which characterise the movement.^[16] The particular appreciation of history stems from TWAIL's aim of transforming international law. Understanding the past is a necessary prerequisite for transforming the present and the future.^[17] TWAIL histories have pointed out the Eurocentric nature of existing histories of international law. They have focused on the co-constitution of international law and imperialism as well as on histories of Third World resistance, of alternative projects and movements.

II. TWAIL and the Turn to Political Economy

III. TWAIL and Critical Scholarship on Race and Racism

Critical scholarship on race and racism, which includes but is not limited to Critical Race Theory (CRT), is mainly concerned with the social construction of races and racial hierarchies and with how these hierarchies have been used to justify exclusion, exploitation, and domination.

IV. Feminist TWAIL

V. TWAIL and 'Strategic Formalism'

E. Recurring and Emerging Themes in TWAIL Scholarship

I. The Civilising Mission and the Standard of Civilisation

II. Development

III. Good Governance

IV. Democracy

V. Transparency and Accountability of International Institutions

VI. Borders and Migration

Conclusion

Summary I
Summary II