Groningen Journal of International Law

International Law Under Construction

TWAIL Coordinates

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Luis Eslava | L.Eslava@kent.ac.uk

2179148130_69223f7014_z(1)

Tenant purchase borrowers in front of their house in rural Puerto Rico (c. 1941–42). FSA-Office of War Information Collection. Library of Congress, Washington, D.C., USA.*

Third World Approaches to International Law, best known by its acronym TWAIL, is a dynamic, intentionally open-ended and decentralised network of international law scholars who think about and with the Third World.

Within the universe of TWAIL, the ‘Third World’ refers to that expansive and usually subordinated socio-political geography that, during the mid-twentieth century, came to be seen as ‘non-aligned’ – belonging neither to the ‘free’ nor to the ‘communist’ world. Today the Third World is more often referred to, however, as the ‘developing world’, the ‘post-colonial world’, or the (Global) South. In our intensely unequal, racialised, gendered, environmentally precarious global order, confronting a proliferation of Souths in the North and Norths in the South, this socio-political geography can perhaps be better characterised as ‘most of the world’.

A TWAIL Spring

The rubric of TWAIL was born in spring 1996, when a group of Harvard Law School graduate students came together to discuss, as James Gathii has written, ‘whether it was feasible to have a third world approach to international law and what the main concerns of such an approach might be.’ That initial set of discussions, and the conversations that quickly followed from them, included students and scholars from various parts of the Third World and fellow travellers from the North.

The first TWAIL meeting was held in March 1997 at Harvard University. The primary objective – one that has marked the work of TWAILers since then – was to cross-examine international law’s assumed neutrality and universality in light of its longstanding association with imperialism, both historical and ongoing. A parallel purpose was to delineate new emancipatory agendas – new decolonisation agendas – for a rapidly globalizing world. As B.S. Chimni later put it in his TWAIL Manifesto, ‘the threat of recolonisation’ has continued to haunt the Third World. Facing this reality, a new set of tools had to be developed to ‘address the material and ethical concerns of third world peoples.’

In their commitment to interrogating the relationship between international law and the conditions of the Third World, this initial group of TWAILers were clear about the importance of honouring an already well-established lineage of international lawyers, political actors, and intellectuals from the South who had long grappled with the vicissitudes and complexities of the international legal order. In particular, they had in mind those whose roles during the decolonisation period were critical for bringing about the end of ‘formal’ imperialism.

To make sense of this long South-oriented international law tradition, Antony Anghie and Chimni coined the terms ‘TWAIL I’ and ‘TWAIL II’: the former to refer to the scholarship produced by that first generation of post-colonial international legal actors; the latter to scholarship that ‘has broadly followed the TWAIL I tradition and elaborated upon it, while, inevitably, departing from it in significant ways.’

In charting this retrospective chronology, Anghie and Chimni stressed the commitment to intergenerational training and learning that has been so fundamental to TWAIL. At the same time, they were able to highlight the pioneering work of contemporary TWAIL (II) scholars in questioning the conditions of the South from a more global and intersectional perspective. The job of TWAIL I was to wrestle with formal imperialism at home. Our struggle – the struggle of TWAILers II, III, IV and beyond – is to deal with the vestiges of ‘formal’ empire and expanding multi-dimensional forms of ‘informal imperialism’.[i]

The World of TWAIL

In the years since this initial set of conversations, TWAIL scholarship has grown enormously in terms of both the themes and the geographical and historical scope of the research conducted by its members.

Revising the general theory of international law and unveiling its global history; questioning the functioning of the international order and the role of international lawyers within it; re-theorising the state and revising current discourses of constitutional order, security and transitional justice; cross-examining the fields of international human rights law, international economic law, international environmental law, international humanitarian law and international criminal law; highlighting the importance of social movements, Indigenous peoples, and migrants in the international order – all these and many other topics have come to the attention of TWAIL scholars in recent years.[ii] Attention to the cross-operation of race, gender, and class, as well as studying past and present forms of decolonisation and resistance have marked this work throughout.[iii]

That first TWAIL meeting in 1997 also inaugurated a line of international conferences that have served as meeting points at which to share research outcomes, consolidate old and new friendships, and assess the prospects for reforming international law’s pedagogy and practice. They have taken place at Osgoode Hall Law School (2001), Albany Law School (2007), the University of British Columbia (2008), Université Paris 1 Panthéon-Sorbonne (2010), Oregon Law School (2011), the American University in Cairo (2015), the University of Colombo (2017), and, most recently, at the National University of Singapore (2018).

Today, 20+ years after the first TWAIL meeting, TWAIL occupies a central place in debates about the past and present of the international legal order. Indeed, it is no overestimation to say that TWAIL’s insights and the work produced under its banner have altered profoundly settled teleological conceptualisations of international law as being innately progressive and always on the side of social, economic, and environmental justice. Most of all, Eurocentric accounts of international law can no longer run unchecked thanks to the work of TWAILers.

TWAILers, fellow travellers, and a new generation of students and practitioners of international law now have a large and growing body of literature behind them that can be mobilised to question those global asymmetries of power that have long accompanied – that have not been external to – international law. Thanks to TWAIL, they can also point at those other uses of international law and at those other worlds that the South and its friends have aimed to put into practice all along.[iv]

TWAIL at the ICJ

A recent confirmation of TWAIL’s growing impact on international law came in the form of Judge Cançado Trindade’s reference to the the edited volume Bandung, Global History and International Law (CUP 2017) in his Separate Opinion to the International Court of Justice (ICJ)’s recent Chagos Advisory Opinion. Debates about self-determination and its role in the modern international legal order had, of course, previously been the subject of detailed and insightful judgments by several jurists from the Third World – some of those TWAIL I figures identified by Anghie and Chimni – such as Mohammed Bedjaoui, Christopher Weeramantry and Fouad Ammoun.

The Bandung volume brought together more than 40 scholars associated with TWAIL and close colleagues to reflect critically on the 60th anniversary of the Bandung Conference. Held in 1955 in Bandung, Indonesia with the participation of 29 African and Asian countries, the Bandung Conference condemned ‘colonialism in all its manifestations’ as ‘an evil which should speedily be brought to an end’. The Bandung collection was cited by Judge Trindade precisely to stress the continued relevance of this call to our supposedly post-colonial global legal order. Almost unanimously, the ICJ found that the Chagos Islands had to be returned to Mauritius ‘as rapidly as possible’ by the United Kingdom, one of its former colonial masters. According to the ICJ, the 1968 decolonisation of Mauritius had not been lawfully completed.[v]

As the Chagos Advisory Opinion demonstrates, and as the Bandung volume insists, colonialism has not gone away. It is still very much part of the international order, yet mutating into new forms each day. In this regard, TWAIL’s re-entrance into the chambers of the ICJ speaks strongly of TWAIL’s ongoing relevance even in the context of the ‘world court’, international law’s central institution. Given TWAIL’s insights into international law’s original and ongoing implication in the imperial arrangements that are continually being redeployed around us, however, clearly its work cannot be confined to the courtroom. Academic and activist work, interrupting the global legal and institutional order whenever possible, are always part and parcel of any TWAIL praxis.

Five TWAIL Coordinates

In the last part of this express tour of TWAIL, let me outline five ‘coordinates’ that characterise this shared body of thought and practice. I use the term ‘coordinates’ rather than ‘principles’ because TWAIL scholars have been reticent to describe their work according to a set of static or pre-packaged features, or to coalesce around a strict canon or institutional formation. Instead, energies have focused on keeping TWAIL open to new generations of scholars and activists, to new conceptual and methodological innovations, and, in particular, to the exploration of new ways of creating solidarity in our always challenging international order.

  1. History Matters

One approach that brings TWAILers together is an appreciation of history and historiography.[vi] TWAIL scholarship often takes several steps back from the present to gain an understanding of how international norms and institutional practices have emerged and developed through specific historical conjunctures. The ‘discovery’ of the ‘Americas’; the expansion of European imperialism over Asia and Africa; the two World Wars; the ‘mandates’ and ‘trusteeship’ systems; the decolonisation moment; the oil and debt crises of the 1970s; the eruption of neoliberalism in the 1980s and 1990s, and the long ‘war on terror’ are only some of these conjunctures – together with non-European imperialisms (from the Chinese Empire to the Republic of Liberia) and countless moments of post-colonial violence by post-colonial states.[vii]

Paying attention to these varied histories has allowed TWAILers to trace the co-constitution of international law and imperialism, and more generally to challenge international law’s complacent linearity and unidimensionality by showing the skewed power dynamics that criss-cross the international legal order. At the same time, questioning the assumed history of international law has allowed TWAILers to excavate alternative international normative projects and movements that have had a South orientation: from Bandung, as mentioned above, to the right of peoples and nations to permanent sovereignty over their natural wealth and resources, to the Non-Aligned Movement, to the New International Economic Order, to La Vía Campesina.[viii]

  1. Empire Moves

With one eye on the longue dureé of the ‘international community’ and the other on the impact of its structures and institutions on Southern peoples and environments, TWAILers have been forced to develop a dynamic account of imperialism. For them, as for Marxist historians, ‘[m]en make their own history, but they do not make it as they please; they do not make it under self-selected circumstances, but under circumstances existing already, given and transmitted from the past.’[ix]

Imperialism from a TWAIL perspective is, then, not a ‘historical’ phenomenon that can be cordoned off somewhere in the past. Imperialism consists, instead, of a multifarious set of asymmetrical arrangements and forms of conditional integration that have travelled across time and space, and through many scales and sites of governance – from the international to the national and the local; from the public to the private; from the ideological to the material; from the human to the non-human, and beyond. These constraining and detrimental forms of ordering make and remake our surroundings – and indeed ourselves – on a daily basis. [x]

  1. The South Moves

If empire moves, the South moves too. The categories of South and North are used in TWAIL scholarship not as hard markers of differentiation, but to analyse the evolution – and the continuities and discontinuities – of global economic, political, and legal relations. These include the causes and effects of international migration and asylum patterns; questions of Indigenous sovereignty across the world; and the impact of the IMF, the World Bank, and other powerful international institutions on poverty and inequality within and between states as different as Greece and Indonesia.[xi]

In TWAIL-oriented work, the categories of Global South and North are thus understood not as fixed realities but rather as dynamic frameworks which must be applied and reconfigured in response to local specificities, regional trends, and larger changes to the global economic and political system. Today, this is more pertinent than ever as we face a deepening of inequality between and within states and regions – an inequality which, paradoxically, only goes to underscore our interconnected responsibilities as the inhabitants of this, our anthropocenic planet. ‘Most of the world’ is again a pretty good description of where the heart of TWAIL lies.

It is, therefore, not only in relation to the imperial character of international law that TWAIL scholarship has been pioneering and original. Over the last two decades, TWAIL scholars have argued that human rights law is very limited in what it can achieve to negate the effects of neoliberalism.[xii] They have also argued that orthodox developmental policies and investment frameworks are structurally biased. This scholarship, which has been always global in its focus, is now proving prophetic as these same concerns are clearly emerging in Northern locations and mainstream scholarship is arriving at similar conclusions.

  1. The Struggle is Multiple

If imperialism is not a matter of the past, and if empire moves just as the South moves, then it follows that the struggle in which TWAIL is engaged is one fought on multiple fronts and on a diverse and shifting terrain.

At the most general level, TWAIL’s struggle is about clearing the historical record concerning the relationship between international law and imperialism past and present. At a more specific level, it involves identifying those key moments in which imperialism has become a constitutive element of the international legal order, and those particular sites in which international law has been the fulcrum of empire. Taken together, TWAIL’s agenda is directed at examining and altering legal understandings, and redeploying law in a more progressive way; which means in a way attentive to progressive political and political economic practices and horizons. As an intellectual project, TWAIL is also concerned as much as with scholarly innovation as it is with due acknowledgment of the important scholarship done by TWAIL scholars and others.

  1. The Struggle is Here

Given this broad agenda of research and political action, TWAILers have insisted on the importance of attending, as feminist scholars have shown us, as much to the personal as to the political. This is crucial given the agonistic nature of states and citizens in the Global South. Emblems – often – of independent life after colonial rule, many have themselves taken on the oppressive, xenophobic characteristics of that from which they fled. Trapped, whether willingly or unwillingly, in cycles of destructive production and consumption; complicit in the radical securitisation of everyday life; deaf to the protests of still-colonised Indigenous groups and minorities, the legacy of imperialism lives on in an active as much as a passive sense in many Third World states.[xiii] For TWAIL scholars, therefore, the struggle remains, and must remain, always there, and always here. It is, and must always be, about present ‘tactics’, and about a longer ‘strategy’.[xiv]

Two lines to conclude. TWAIL is a movement, not a school; a network, not an institution; a sensibility, not a doctrine. This restlessness and commitment to openness are nourished, above all, by the diversity of the world to which TWAIL responds and from which its momentum arises.

[Acknowledgments: The author must thank Jenifer Evans for her editorial support and Antony Anghie, Rob Knox, Vasuki Nesiah, Sundhya Pahuja, Rose Parfitt, and John Reynolds for their close reading of early versions of this blog post.]

*This photograph of two tenant purchase borrowers was taken by Jack Delano, as part of the famous rural poverty photography program conducted by the USA Farm Security Administration (FSA) between 1935 and 1944. The FSA sponsored the private acquisition of land, via tenant purchase borrowing schemes, as a mechanism for solving the poverty captured by these photographs. The scheme was implemented on the US mainlandand in Puerto Rico, reinforcing the longstanding colonial relationship between the two. Today, similar ‘development’ strategies focused on the privatization of land are ubiquitous throughout the Global South, notwithstanding their well-documented limitations. See e.g., Willem Assies, ‘Land Tenure, Land Law and Development: Some Thoughts on Recent Debates’ (209) 36(3) The Journal of Peasant Studies 573.


[i] On ‘informal’ imperialism, before, during and after the decolonisation era, see especially, John Gallagher and Ronald Robinson, ‘The Imperialism of Free Trade’, (1953) 6(1) The Economic History Review 1; W.M. Roger Louis and Ronald Robinson, ‘The Imperialism of Decolonization’, (1994) 22(3) The Journal of Imperial and Commonwealth History 462.

[ii] The list of citeable publications is enormous – here are just some examples. On revisions of the general theory and history of international law and the operation of the international order from a TWAIL perspective, Anthony Anghie, Imperialism, Sovereignty and the Making of International Law (CUP, 2004); B.S. Chimni, International Law and World Order (CUP, 2nd ed, 2017); Sundhya Pahuja, Decolonising International Law: Development, Economic Growth and the Politics of Universality (CUP, 2011); Luis Eslava, Local Space, Global Life: The Everyday Operation of International Law and Development (CUP, 2015). See on the role of international lawyers and scholars, Liliana Obregón, ‘Between Civilisation and Barbarism: Creole Interventions in International Law’ (2006) 27(5) Third World Quarterly 815; Luis Eslava and Sundhya Pahuja, ‘Between Resistance and Reform: TWAIL and the Universality of International Law’ (2011) 3 Trade Law and Development 103; Arnulf Becker Lorca, Mestizo International Law: A Global Intellectual History 1842–1933 (CUP, 2015); Adil Hasan Khan, ‘International Lawyers in the Aftermath of Disasters: Inheriting from Radhabinod Pal and Upendra Baxi’ (2016) 37(11) Third World Quarterly 2061. On retheorisations of the state, Rose Parfitt, The Process of International Legal Reproduction: Inequality, Historiography, Resistance (CUP, 2019). On constitutional law from a TWAIL perspective, Zoran Oklopcic, ‘The South of Western Constitutionalism: A Map Ahead of a Journey’ (2016) 37(11) Third World Quarterly 2080. On transitional justice and security discourses, James T. Gathii, ‘The Use of Force, Freedom of Commerce, and Double Standards in Prosecuting Pirates in Kenya’ (2010) 59 American University Law Review 1321; Vasuki Nesiah, ‘Theorizing Transitional Justice’ in Anne Orford and Florian Hoffman (eds.), Oxford Handbook of International Legal Theory (OUP, 2016); John Reynolds, Empire, Emergency and International Law (CUP, 2017); Ntina Tzouvala, ‘TWAIL and the “Unwilling or Unable” Doctrine: Continuities and Ruptures’ (2015) 109 AJIL Unbound 266. On international human rights law, M. Mutua, ‘Savages, Victims, and Saviors: The Metaphor of Human Rights’ (2001) 42(1) Harvard International Law Journal 201. On international economic law, James T. Gathii and Ibironke Odumosu, ‘International Economic Law in the Third World’ (2009) 11 International Community Law Review 349; Michael Fakhri, Sugar and the Making of International Trade Law (CUP, 2014). On international environmental law, Usha Natarajan and Kishan Khoday ‘Locating Nature: Making and Unmaking International Law’ (2014) 27 Leiden Journal of International Law 573; Julia Dehm, ‘Post Paris Reflections: Fossil Fuels, Human Rights and the Need to Excavate New Ideas for Climate Justice’ (2017) 8(2) Journal of Human Rights and the Environment 280–300; Karin Mickelson, ‘International Law as a War against Nature? Reflections on the Ambivalence of International Environmental Law’ in Barbara Stark (ed.), International Law and Its Discontents: Confronting Crises (CUP, 2015). On international humanitarian law, Corri Zoli, ‘Islamic Contributions to International Humanitarian Law: Recalibrating TWAIL Approaches for Existing Contributions and Legacies’ (2015) 109 AJIL Unbound 271. On international criminal law, Asad G. Kiyani, ‘Third World Approaches to International Criminal Law’ (2015) 109 AJIL Unbound 255. On TWAIL approaches to social movements, Indigenous peoples and migrants; Balakrishnan Rajagopal, International Law from Below: Development, Social Movements and Third World Resistance (CUP, 2003); Amar Bhatia, ‘The South of the North: Building on Critical Approaches to International Law with Lessons from the Fourth World’ (2012) 14 Oregon Review of International Law 131; Adrian A. Smith, ‘Migration, Development and Security within Racialised Global Capitalism: Refusing the Balance Game’ (2016) 37(11) Third World Quarterly 2119.

[iii] As early materialisations of TWAIL’s commitment to questions of global intersectionality, imperialism, and decolonisation, see especially, Special Issue Villanova Law Review 45(5) (2000); Antony Anghie, Bhupinder Chimni, Karin Mickelson and Obiora C. Okafor (eds), The Third World and International Order (Brill, 2003). See for example, on TWAIL ongoing attention to race in terms of international proceses, Rob Knox, ‘Race, Racialisation and Rivalry in the International Legal Order’ in Alexander Anievas, Nivi Manchanda, Robbie Shilliam (eds), Race and Racism in International Relations: Confronting the Global Colour Line (Routledge, 2015).

[iv] South-oriented historians have also been making an extremely significant contribution to the project of excavating those other worlds proposed by South intellectuals and political actors. See for example, Gary Wilder, Freedom Time: Negritude, Decolonization, and the Future of the World (Duke University Press, 2014); Adom Getachew, Worldmaking after Empire: The Rise and Fall of Self-Determination (Princeton University Press, 2019).

[v] For a TWAIL oriented analysis of the Chagos Advisory opinion, see e.g., Miriam Bak McKenna, ‘Chagos Islands: UN ruling calls time on shameful British colonialism but UK still resisting’ (The Conversation, 28 February 2019).

[vi] On TWAIL’s engagement with history and historiography, Anne Orford, ‘The Past as Law or History? The Relevance of Imperialism for Modern International Law’ (IILJ Working Paper, 2012/2). On an overview of the importance of history to TWAIL wcholarship, see e.g., George Rodrigo Bandeira Galindo, ‘Force Field: On History and Theory of International Law’ (2012) 20 Journal of the Max Planck Institute for European Legal History 86.

[vii] See on European and non-European imperialism, and the violence that has accompanied the state form across the world, Rose Parfitt, The Process of International Legal Reproduction: Inequality, Historiography, Resistance (CUP, 2019).

[viii] See e.g., Michael Fakhri, ‘Rethinking the Right to Food’ (Legal Form, 5 September 2018).

[ix] Karl Marx, The Eighteenth Brumaire of Louis Bonaparte (1852).

[x] In my own work I have tried to capture this dynamic and broad operation of imperialism and international law. See for example, Luis Eslava, ‘Istanbul Vignettes: Observing the Everyday Operation of International Law’ (2014) 2(1) London Review of International Law 3; ‘The Moving Location of Empire: Indirect Rule, International Law, and the Bantu Educational Kinema Experiment’ (2018) 31 Leiden Journal of International Law 539.

[xi] For a recent example of this dynamic understanding of the Global South and North that underpins TWAIL-oriented work, see especially, John Linarelli, Margot E. Salomon, and Muthucumaraswamy Sornarajah, The Misery of International Law: Confrontations with Injustice in the Global Economy (OUP, 2018).

[xii] See especially the critical groundbreaking work on human rights by Upendra Baxi, The Future of Human Rights (OUP, 2002). See on the ongoing TWAIL contributions to human rights debates, Ratna Kapur, Gender, Alterity and Human Rights: Freedom in a Fishbowl (Edward Elgar, 2018).

[xiii] See e.g., Mohammad Shahabuddin, ‘Postcolonial Boundaries, International Law, and the Making of the Rohingya Crisis in Myanmar’ (forthcoming, 2019) Asian Journal of International Law; Luis Eslava, ‘The Developmental State: Dependency and Independency and the History of the South’ in Philipp Dann and Jochen von Bernstorff (eds), The Battle for International Law (forthcoming, 2019, OUP).

[xiv] Robert Knox, ‘Strategy and Tactics’ (2010) 21 Finnish Yearbook of International Law 1.

Lufe-117Luis Eslava is a Senior Lecturer in International Law and Co-Director of the Centre for Critical International Law (CeCIL) at Kent Law School, University of Kent. His research explores the multiple ways in which international norms and practices shape and become part of our everyday life, and the multiple forms of resistance, past and present, that come to be levelled against such forces. His work has been recognised by several awards, including the 2016 SLSA Hart Socio-Legal Book Prize, the 2016 SLSA Prize for Early Career Academics, and the 2014 University of Melbourne Chancellor’s Prize for Excellence. [Photo by blacknotephotography]

 

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