TWAIL Scholarship: A necessary pillar of international law [part 1]

Introduction

The existence of international law, as a concept has existed since time immemorial. European age of Renaissance gave birth to what is known as the modern international law. It has been suggested that international law has an intrinsically European character since it arose in response to the changing political environment in Western Europe at the time. The development of postcolonial theories of law in the setting of international law spawned a body of scholarship that tried to provide perspectives on international law from ‘third world’ or the formerly colonised countries..

The experience of colonialism demonstrates European dominance in the international realm, which cannot be neglected in any type of modern government or institutions. Even if colonialism has officially ended, postcolonial legal scholarship emphasises that its unjust history of material practises continues to have an impact today and does influence nascent legal consciousness.[1]  Third World Approaches to International Law (TWAIL) studies arose as a response to the ‘Eurocentric’ aspect of international law, as well as western dominance and its advantages in the field of international law. There have been attempts to present third-world countries’ experiences with international law and how they have been underrepresented, therefore making it an unequal law.

Although there have been many criticisms of TWAIL scholarship, most of them have focused on its lack of methodological clarity, accusing it of being a non-expansive scholarship with narrow viewpoints, scholars with nihilistic tendencies, and TWAIL’s apparent inability to respond to their criticisms with a solution or alternative[2]. However, this two part series article focuses on one particular critique which has emerged in recent times. The challenge to the theoretical concept of TWAIL scholarship with the rise of ‘third world countries’[3]. How does TWIAL respond to the phenomenon of rising non-western states in the sphere of international law? And in this context, is there even a need of continuance of TWAIL scholarship in the backdrop of such recent developments?

Introduction to TWAIL:

The discourses that formed and legitimised colonial footing are examined in postcolonial studies. What are the ramifications of such colonial knowledge, and how did everything linked to the coloniser and the colonised become a component of colonialism? By implication, this involves an examination of the colony’s identity disparities, both on an individual and social level.  The rule of law continues to be a key tool for establishing and maintaining colonial power. Jurisprudence established during the colonial period has had a significant influence on our understanding of ideas, including fundamental international law notions like sovereignty and legal personality. Existing legal conceptions, supposedly of universal character, display deep-seated concealed western bias. This shows the lack of non-western nations’ participation as well as the real nature and consequences of colonialism.[4]

The TWAIL movement arose in the aftermath of War II with an increase in decolonization effort. TWAIL is a criticism of international law which speaks out against international law’s Eurocentric character, former colonised nations’ harsh pasts, and their struggles to adapt into an unfair international system[5]. The reason being that imperialism did not cease with the decolonization era; but is still an ongoing agenda. Following that, in his TWAIL manifesto, B.S. Chimni reminded us that “the threat of recolonization” has continued to loom over the Third World. Faced with this reality, a new set of instruments to ‘address the material and ethical problems of third-world peoples had to be devised[6]. TWAIL conversations seek to combine reform and opposition to international law and scholarship.  The TWAIL movement has developed and expanded significantly in terms of the subjects addressed, geographical breadth, and historical span of study undertaken by its academics throughout the years, since its start.

Imperialism and the ‘third world’

Experience of imperialism is central to TWAIL. It makes way for discussions which includes the oppression of all communities historically treated as inferior to the colonising society. From their perspective, imperialism is simply not just a ‘historical phenomenon’ but is in continuance even today. Whose asymmetrical power arrangements has affected and continues to affect though its different form of integration across space and time. While at the inception TWAIL encompassed scholars and practitioners of international law and policy who were concerned with issues related to the Global South which consisted of nations traditionally known as former colonies, the lines have blurred between what is considered as the global north/global south. The definition of what ‘third world’ means have changed and this in effect has had further implications on what gets talked about, under the tagline of TWAIL scholarship. The north-south divide is thus not a hard marked divide but is a dynamic concept which is to be configured “in response to local specifics, regional trends, and larger changes to the global and political system”[7]. This is reflected in the divide that TWAIL scholars have established in body of scholarship- phases of TWAIL I and TWAIL II. Where TWAIL I consisted of scholars mainly analysing effects to historical imperialism back at home, subsequent scholars associated with the movement have talked about modern day instruments of international oppression and questioning the south’s oppression from a more global perspective[8]. It also takes into account recent neo-colonial activities by both western and non-Western nations excreting economic and political dominance, also known as ‘soft imperialism’[9].

Imperialism, global capitalism & TWAIL

Imperialism directly correlates to other important concepts such as hegemony and capitalism. During the age of colonialism, the Europeans not only established new markets to sell European good at high rates but also carried raw materials from the colonies at a cheap rate back home to for the manufacture of same products. This expansion of trade, led to the establishment of a global economy, and eventually lead to the birth of modern capitalism[10]. The end of cold war and the subsequent fall of USSR gave rise to support for a capitalistic economic and political system all over the world, giving rise to global capitalism due to the establishment of American Hegemony[11]. Impact of American economic hegemony which promoted capitalism, did not affect much of Europe since they already had been following similar economic and political regime[12]. However, it did cause major changes in the rest of the world. Benefits of global capitalism are shaded by the criticism by mostly Marxist scholars pointing out the wealth gap and inequalities created, wreaking havoc on the lives of ordinary people and communities. A global capitalist class of third world countries have also emerged in recent times[13]. There exists no difference between economic and political power[14]. One that has control of the global market in capitalistic society yields dominance over others. TWAIL scholarship has often interpreted the concepts of capitalism, imperialism, and international law as being interrelated[15]. The assumption is that the advanced industrialized nations of the west sustained capitalistic welfare through their exploitations in ‘third world’ countries and therefore, the emergence of advance economies such as China India and other BRICS nations has paints a perplexing picture. It gives rise to ideas that imperialism must not be a reality today- the determinant explanation to emergence and existence of TWAIL scholarship. That the nature and character of International law and its institutions will no longer be shaped by the ‘history’ of imperialism in the twenty-first century, undermining the theoretical basis of TWAIL[16].

Capitalism and globalization: Emergence of Transnational Capitalist Class and Transnational Oppressed Class

This section seeks to explain how the contours of the global north-south have blurred because of the emergence of a global capitalism. The emergence of transnational capitalist class and transnational oppressed classes is what will explain the rise of BRICS/ ‘third world’ economy and at the same time also be an argument for the need of TWAIL scholarship, more than ever.

Global capitalism has characteristics such as an emerging transnational capitalist class (TCC) emerging in the capitalist class of the advanced capitalist countries and emerging third world economies. These groups of capitalist class in both sections, benefit from globalization, at the detriment of the subaltern classes or what is termed as the transnational oppressed classes (TOC). In other words, it is asserted that a global class divide is overlaying the north-south divide because of the existence of rich and poor in both sides. The vision of TCC is backed by sections of the transnational middle class who also stand to benefit from imperial globalization producing a global class divide. Colonialism was followed by neo-colonialism and is today succeeded by global imperialism. Interests of TCC in these emerging economies of modern day intersects with the aims and needs of the advanced capitalist economies, the former imperial nations. In these countries, TCC use their position and power to influence foreign policy, especially in areas of trade, finance and investment. The emerging economies, or the ‘third world’ no longer oppose anti-imperialist policies, but rather support it despite themselves being subjected to imperialist exploitation. In simple words, this side of the world has accepted the imperial history and its dominance and are now playing on the same level field as if it is a competition between equals. Attempts to resist are barely there. Instead, emerging economies such as mentioned above are carrying out neoliberal reforms to facilitate trade with the industrialized world[17]. Income inequalities are glaring but the loss of policy space to international economic institutions does not allow their concerns to be addressed. Thus a new imperial social formation has come into being.

To summarise and conclude this part of the article, the emerging economies have emerged because of global capitalism which has its roots in modern form of imperialism, as discussed above. With reference to the expanding scholarship of TWIAIL, I asserted that any form of oppression has found its way within TWAIL scholarship before and it will only continue to do so in future as well. Therefore, the need for TWAIL and its importance will stay everlasting as long as there exists differences in the international sphere.


[1]Darian-Smith, E., 2013. Postcolonial theories of law. In Law and social theory. Hart Publishing.

[2]Gathii, J.T., 2018. The Agenda of Third World Approaches to International Law (TWAIL). International Legal Theory: Foundations and Frontiers, Cambridge University Press (2019).

[3] Azeem, M., 2018. Theoretical Challenges to TWAIL with the Rise of China: Labor Conditions Under Chinese Investment in Pakistan. Or. Rev. Int’l L.20, p.395.

[4] Dann, P. and Hanschmann, F., 2012. Post-colonial theories and law. Verfassung und Recht in Übersee/Law and Politics in Africa, Asia and Latin America45(2), pp.123-127., vol. 45, no. 2, 2012, pp. 123–127. JSTOR, www.jstor.org/stable/43256847. Accessed 3 Apr. 2021

[5] Makau, M.U.T.U.A. and Anghie, A., 2000. What is TWAIL? In Proceedings of the Annual Meeting (American Society of International Law) (Vol. 94, pp. 31-38).

[6] Chimni, B.S., 2006. Third world approaches to international law: a manifesto. Int’l Comm. L. Rev.8, p.3.

[7] (Eslava, L., 2019. TWAIL coordinates. Critical Legal Thinking. Online verfügbar unter http://criticallegalthinking. com/2019/04/02/twail-coordinates/, zuletzt geprüft am13, p.2019.

[8] id.

[9] This included China’s exploitative economic activities and other capitalist exploitations over the local population, often times in association with the other local elites who are as ready to take advantage of the situation as the ‘imperialists’;  Darian-Smith, E., 2013. Postcolonial theories of law. In Law and social theory. Hart Publishing.

[10]O’Hanlon, C., 2013. An analysis of the relationship between capitalism and imperialism through adam’s the wealth of nations.

[11] Berger, M.T., 1995. Post-cold war capitalism: Modernization and modes of resistance after the fall. Third World Quarterly16(4), pp.717-728. DOI: 10.1080/01436599550035924

[12] Lachmann, R., 1989. Origins of capitalism in Western Europe: economic and political aspects. Annual Review of Sociology15(1), pp.47-72.

[13] Chimni, B.S., 2012. Capitalism, Imperialism, and International Law in the Twenty-First Century. Or. Rev. Int’l L.14, p.17.

[14] Azeem, M., 2018. Theoretical Challenges to TWAIL with the Rise of China: Labor Conditions Under Chinese Investment in Pakistan. Or. Rev. Int’l L.20, p.408.

[15] Lone, F.N., 2020. Cross-Fertilization of Westphalian Approaches to International Law: Third World Studies and a New Era of International Law Scholarship. Emory Int’l L. Rev.34, p.955.

[16] Chimni, B.S., 2012. Capitalism, Imperialism, and International Law in the Twenty-First Century. Or. Rev. Int’l L.14, p.17

[17] Id. At 35.

Aishwarya Says:

I have always been against Glorifying Over Work and therefore, in the year 2021, I have decided to launch this campaign “Balancing Life”and talk about this wrong practice, that we have been following since last few years. I will be talking to and interviewing around 1 lakh people in the coming 2021 and publish their interview regarding their opinion on glamourising Over Work.

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