TWAIL Scholarship: A necessary pillar of International law [part 2]

This is a continuation of part 1 of the article

Eastphalia vs. Westphalia: will the tables turn?

After a series of wars in Europe, the Westphalia peace treaty was signed. Thus originated the concept of sovereignty of nation and other nations’ non-interference in each other’s domestic sphere. After decolonization movement, Asian countries entered into the largely European conceived International Westphalian system. And therefore, international law came to be based on the Westphalian idea of being organized into independent territorial states exercising state sovereignty and abiding by a consent based body of rules and regulations.

In recent times, the phenomenon of prioritization of individualism and human rights as a matter of international concern by international institutions like the United Nations, has eroded the principles of Westphalia by being open to interfere in domestic matters of a country when there is involvement of violation of human rights. International human rights came to be in the forefront as protecting individual rights became the main goal of international organizations. Liberal internationalism[1] involved opening up states to outside states ‘scrutiny even in matter of domestic spheres when question of violation of human rights were involved. But, while the U.N. Charter declared its aim to protect human rights, it contradicts itself by emphasizing Westphalian caveat of non-interference and upheld the supremacy of sovereignty of nations and state consent[2]. With the end of the cold war, and recent onset of the era of globalization, scholars are more and more convinced of the ‘death’ of Westphalia and is often referred to as the period post-Westphalia[3]. Declining economies of the west and accelerated growth of some of the ‘third world’ countries, especially Asian nations, fascinated many. This rise of Asian economies such as China lead to many scholars to rethink international law from Eastphalian paradigms. Eastphalia is a phenomenon largely driven by accelerated and still undergoing economic growth and development in India, China, East Asia, and Southeast Asia over the past couple of years. The emergence of advanced economies and along with it, control of influence in the international sphere illustrated the influence of economic power of rising Third World nations has on the growth and development of international law[4].

Therefore, the question arises whether the Eastphalia would take over and change the current dynamics of international law which is also the concern of the critique of TWAIL being discussed in this paper. It is necessary to understand what Eastphalia entails by examining the foreign policies of countries like China and India. Asian countries do not display indications of being proponents of global governance undermining the sovereignty of independent nations. Instead, the emphasis is on non-interference and respect for one another’s state independence. This position arises from the historical western domination and suspicions of the same today[5] With respect to international relations, both the countries follow the five point principles of peaceful coexistence. These principles are essentially Westphalian in character. Therefore, while the Western powers want integration through global institution, Asian countries preferred non-interference and state sovereignty.

Therefore, just the economic development of ‘third-world’ nations, it does not motivate these countries to become interested in being international leaders, in spheres other than economic. China’s grand strategy-articulated by Deng Xiaoping has been to let other powers take the lead[6]. Therefore with the ‘third-world being uninterested in

Historical evolution of International law and the left out ‘third world’

TWAIL is not an ideology or a school of thought. It is a scholarship which is aware of the historical oppression which characterizes social and legal relations in the international community. It speaks out against international regimes, which claims to be equal on the face of it, actually reflects the interests of the dominant groups at the expense of others. Sources of international law therefore, are and should be subjected to close scrutiny and critique from the TWAIL perspective.

  • Customary international law

Customary international law (CIL) has been challenged in the “light of the marginal role that the Third World has played in customary law-making”[7]. It has been an instrument to maintain the status quo of colonial era. A derogation of established CIL is a long-drawn out and difficult process. Earlier in this paper, the relationship between colonialism, imperialism and capitalism was discussed. This interconnected relationship between the three concepts also had its impact on the evolution of CIL. There is an established lack of writings of postcolonial scholars from the third world countries owing to lack of their publicity, language barriers as they write in native languages , the less developed resources and technological development etc., pointing towards display of power by the west. B.S Chimni discussed the superficial distinction made between ‘formal’ (law making force involved) and ‘material’ (historic factors) sources of international law endorsed by the ILC and ILA. But, he argues that they ignore the intertwined root of both the sources of CIL[8].  Powerful nations used CIL as a flexible means of law-making for furthering their own self-interest evidenced through an examination of origin of the persistent objector clause.[9]

  • International treaties and organizations

The international treaties enforced by international organizations have been strategically used as a tool by the developed nations, already wielding a wide influence on the ‘third-world’ nations to exert undue pressure and enter into agreements which sometimes puts them in a position of disadvantage. But they agree to participate in such agreements in turn of getting international acceptance and support, necessary for national development especially in the context of rapid globalization and economic competitiveness[10]. Important international organizations such as the World Bank etc., have under representation of the ‘third-world’ and has repeatedly taken advantage of plundering the ‘third-world’ nations due to the power and influence it exercises in the international sphere[11]. Thus the concept of ‘recolonization’ as expressed by the TWAIL scholars is based on lived experiences of the third world countries. To give another example- the use of only two language- English and French as the working language in the UN. Discrimination and other scholars, lawyers etc., not being taken seriously.

  • Judicial decisions and teachings

The fairness of international courts’ judgements with the mission of delivering justice is to be reanalysed and the role of impact international politics has to be considered[12]. International judicial decisions- appointment of judges highly problematic and politicised in the first place as it depends on the status and support of a decision of suggestion made by a particular country. Judicial decisions ignored by western countries who often times are seen to have donated large sums for the working of the institutions enforcing the international laws.

All of these factors have been repeatedly criticised by TWAIL scholars and continues to be done. Because of the criticisms, a dialogue is open and nations in positions of power are forced to look at the superior seat it has given themselves even when it was denied having any such advantage. So yes, there is still a need of TWIL scholarship in this day and age especially with the disproportionate and unequal economic rise of the third world countries.

Conclusion

TWAIL has time and time again emphasized how it doesn’t conform to any particular ideology or school of thought as the scholars who come from different backgrounds, with different experiences of the ‘third-world’ cannot be limited to a single definition. The indicative divide of the ‘north’ and the ‘south’ or the ‘third world’ and the ‘first world’ is not an airtight division. In fact, the existence of the poor and the oppressed is very much present on both spheres and are not monolithic entitles. TWAIL strives to highlight and put forth the complaints and experiences of the less heard. It’s proposed to oppose inequalities meted out from international law while participating in it at the same time and this is why it has always faced a lot of criticism and contempt. However, TWAIL continue its main task of identifying and criticizing mainstream international legal scholarship for being biased and Eurocentric offering hope of reform because it understands that the world cannot do without international law in dealing with global problems, especially in the age of globalization with increased international dialogue and disputes.


[1] The ideology which promotes that states should be open to outside intervention- military or otherwise in cases of human rights violations

[2]  U.N Charter. Article 2, para 7

[3] Falk, R., 2002. Revisiting Westphalia, Discovering Post-Westphalia. The Journal of Ethics6(4), pp.311-352.

[4] Fidler, D.P., 2010. Introduction: Eastphalia emerging?: Asia, international law, and global governance. Indiana Journal of Global Legal Studies17(1), pp.1-12.

[5] Ginsburg, T., 2010. Eastphalia as the Perfection of Westphalia. Ind. J. Global Legal Stud.17, p.27.

[6] Id.

[7] Galindo, G.R.B. and Yip, C., 2017. Customary International Law and the Third World: Do Not Step on the Grass. Chinese Journal of International Law16(2), pp.251-270.

[8] https://www.cambridge.org/core/journals/american-journal-of-international-law/article/customary-international-law-a-third-world-perspective/DEDB6DB43A3B5A613B68FDBE56E20A20

[9] https://legalform.files.wordpress.com/2017/08/chimni-marxist-pil-course.pdf

[10] Fatouros, A.A., 1964. International law and the third world. Virginia Law Review, pp.783-823.

[11] Feder, E., 1983. Plundering the poor: The role of the world bank in the third world. International Journal of Health Services13(4), pp.649-660.

[12] Mutua, M., 2015. The International Criminal Court: Promise and Politics. In Proceedings of the ASIL Annual Meeting (Vol. 109, pp. 269-272). Cambridge University Press.

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