Why TWAIL must not Fail: Origins & Applications of Third World Approaches to International Law

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AUTHOR Name: Mr. Vikrant Dayanand Shetty Affiliations: Student of Government Law College, Mumbai Date of Birth: 30- 04-1992 E-mail address: mowingthelaw@gmail.com Blog: Mowing the Law (http://mowingthelaw.blogspot.in/ Why TWAIL must not Fail: Origins & Applications of Third World Approaches to International Law Obituary: This research paper is dedicated to the Late Prof. Ram Prakash Anand, a pioneer TWAIL-er. Although I have never met him personally, his books and papers have enlightened me on several subjects of International Law. Abstract: In this paper I have, rather simplistically, started with history and basics of TWAIL. Then focused on the connection of TWAIL with the recent scenarios such as the Iraq invasion. Lastly, I have tried to rid many misconceptions associated with TWAIL such as the promotion of legal nihilism. I have also expressed my original views on future aims and objectives of TWAIL and attempted to solve some of the problems and contradictions in connection with TWAIL as well as fill some blanks in the approach, which have, to my knowledge, not been discussed in detail. I would only like to add that his paper was written primarily so that even a layman would develop interest in TWAIL and not only for those who are already scholars of TWAIL. “They (The Europeans) found themselves in the middle of a network of States and inter-State relations based on traditions which were more ancient than their own and in no way inferior to notions of European civilization.”[1] -Prof. R.P.Anand Introduction While international law originally adopted an attitude of indifference towards colonialism, it eventually ended up justifying and spreading it. In this manner, international law ensured the survival and promotion of colonialism. In simplest terms TWAIL as given by Mutua is “the broad dialectical of opposition to International Law”[2]. TWAIL offers theories as well as methods and, as its name suggests, can be best described as an approach[3] or rather as a spectrum consisting of several approaches.[4] It is an approach drawn from the history of the encounter between international law and colonization. As a distinctive way of thinking about international law, TWAIL is a historically aware approach that, through academic scholarship and discussion, makes innocent third worlds aware of an openly colonizing and dominating first world[5] and works towards eliminating the disadvantages of an underdeveloped in the Third World. Gathii also agrees that “Third World positions exist in opposition to, and as a limit on, the triumphal universalism of the liberal/conservative consensus in international law.”[6] The study of international law’s universalism has been done through theoretical workouts. Consequently, the new international legal scholarship is able to accommodate novel movements and intellectuals. TWAIL is such a movement.[7] It responds to international law as an imperial project and seeks internal transformation of the conditions in the Third World. Thus, it facilitates the understanding of the relation between international law and the shortcomings of the lesser developed regions. History of TWAIL As a phenomenon, TWAIL is not new, but as a scholarly network it formed grew in and around the 1990s. It is also to be noted that the term TWAIL has expanded to refer to all scholarships that have advocated a postcolonial approach to international law including those associated with NAIL, (New Approach to International Law) and the significant amount of scholarship that had occurred before the 1990s.[8] In fact, it is believed that TWAIL emerged from NAIL. The ‘post’ in ‘postcolonial’ does not refer to ‘after period of colonialism’ or ‘triumphing over colonialism’. On the contrary, it refers to the ‘continuation of colonialism in the consciousness of formerly colonized peoples, and in institutions imposed in the process of colonization’.[9] The terms ‘Third World’, ‘the South’, ‘ less-developed’, ‘underdeveloped’ and even sometimes ‘developing’, all refer to those states where the people are socially backward and lag behind in terms of economic growth[10]. The term Third World has also been criticized given the growing diversity amongst Third World states and the fracturing and reshaping of alliances between them. Some scholars believe that the notion of a Third World may disguise the differences between and within these nations. When reference is made to a Third World immediately, images of starving, unwashed and terminally ill people come to mind. These images stand in contrast to those we hold of the First World, characterized by prosperity, luxury, and liberty. However, international law is not meant to differentiate between the Third and First worlds or between prosperous and underdeveloped nations. Hardt and Negri notably declared that globalization had made the Third World obsolete as there is a First World in every Third World, and a Third in the First, and the Second almost nowhere at all[11]. However, classifying states into inferior and superior has always facilitated in changing the legal system[12]. In fact, when these groups refer to themselves as ‘Third world’, it makes it hard for states to ignore their constant exploitation and the subordination that they have come to represent in the minds of the people all around the sphere. International law lays down rules that intentionally ignore the condition of uneven development in favour of prescribing uniform global standards. It has almost completely discarded the principal of special and differential treatment TWAIL scholars have had to negotiate these issues continually from the very early years of the movement. In reality though, the international law regime is not universal and impartial in relation to sovereign states. TWAIL scholars point to a two-tiered system of ‘international’ law that legitimates and supports the actions of First World nations while concurrently criminalizing the actions of their Third World counterparts TWAIL in Present Time The rapid increase in the number of books, articles, PhDs and papers written on TWAIL is evidence of it gaining prominence, especially among those in the legal profession. Many law schools have even offered courses on TWAIL. The surfacing of TWAIL is proof a step away from the dominant Western vision of the International regime. Leading books and scholars of international law are no longer based for the most part in Europe and North America but from all over the globe. In fact, North American based TWAIL-ers are only a small part of a larger tradition of third world scholarship in inte