Disclaimer: This is a subject that has been looming on my mind for a while now. Since writing this I’ve started to wonder whether you can meaningfully critique the TWAIL project/movement/theory as a whole because what unites all TWAIL scholars is an agenda which is too broad to convey any necessary moral or legal strategy. Perhaps, its best to critique strands of TWAIL scholarship or individual scholars instead.
International lawyers, with a psychological affinity to that ‘political reality’ which the French economist Alfred Sauvy called the ‘Third World’, who are postmodernists, anti-essentialists and deconstructionists (collectively called post-structuralist), make up the majority of TWAIL scholars. One of the first and still most famous pieces on TWAIL is by Makau Mutua, eponymously titled ‘What is TWAIL?’ Mutua defines TWAIL as a ‘broad dialectic of opposition to international law’ by the developing world. Al Attar and Thompson, define it as ‘an alternative narrative to international law that has developed in opposition to the realities of domination and subordination prevalent in the international legal apparatus’. In this process, Third World international law scholars rely on historical methods such as historiographical analysis and critiquing the rule-oriented mainstream international law.
Not without controversy, Anghie and Chimni offered us a periodised timeline of TWAIL,
distinguishing between early and late post-colonial scholarship.
TWAIL I, referred to by Sundhya Pahuja as ‘midnight’s international lawyers’, indicts European international law for its colonial and oppressive character, retrieves organic Third World histories of international law, embraces international legal principles such as sovereign equality and nonintervention, and advocates the establishment of a new international economic order. The ways in which the intersection of caste, gender, religion and class acted within the constitution of the state remained unaddressed.
TWAIL II scholarship calls into question many of the foundations of its predecessor, interrogating the statecentric—and undemocratic—character of international law, and resisting any knee-jerk commitment to European accounts such as locating state sovereignty as the beginning and end of international law. TWAIL II also pursues a more nuanced analysis of structural factors, problematising Eurocentrism in the underlying epistemology. To TWAIL II, colonialism is neither an event nor an aberration to be critiqued from the perspective of our enlightened modernity. They regard it as etiological and thus constitutive of international law itself.
It is difficult not to be sympathetic to the historical and theoretical insights within TWAIL literature—the emphasis on the colonial encounter as an important dynamic in the development of contemporary international law, the resurrection of subaltern scholars in the wake of post-colonialism (e.g., dependency theory), as well as the transmission of insights from CLS and NAIL concerning the indeterminacy of law and the postmodernist prioritization of marginalized identities and peripheral social movements over traditional locations of power (e.g., states, international institutions).
TWAIL scholarship, more than any other scholarly approach to international law, has
brought the colonial encounter between Europeans and non-Europeans to the
center of this historical re-examination of international law. In doing so, TWAIL scholarship has not only rethought international law’s relationship to the colonial encounter, but has also challenged the complacency in international law to treat the colonial legacy as dead letter, overcome by the process of decolonization. They have pushed the agenda of the third world in international law beyond examining whether the third world participated in the making of international law and in international institutions. Moreover, when one adopts a critical stance towards international law, it provides a potential conceptual space – one akin to what James Gathii visualised when liberal conservatism and Third Worldism finally interpenetrate, where ideals for building an egalitarian world can be conceptualised.
I found myself very drawn to TWAIL scholarship because I found these striking illuminations of the world I was living in. The first TWAIL scholar I read was RP Anand- it gave me a sense than Asia was not alien to the language of international law. I am aware since then that these are very complicated issues. However, there are possible grounds in which the movement ought to be analysed, if not critiqued:
- Not as radical as it professes to be
The idea is that TWAIL’s resistance to international law scholarship and international law itself, occupies the same terrain as international law and as such it cannot offer an alternative. TWAIL does not merely declare that international law is misapplied, misrepresented, or malfunctioning. Instead what TWAIL claims is that everything from the form of the legal argument to its core doctrines are indicted which would have normally lead us to the conclusion that the regime must be overturned in its entirety if TWAIL’s normative ambitions are to be realised. The natural conclusion, however, is not what TWAIL reaches, taking a utopian turn and calling for greater equality, equity, justice, democracy, truth, and all things fuzzy in the operation of international law. Chimni and Anghie for e.g say that international law has a ‘transformative potential’ and is thus vital in the pursuit of global
According to Haskell, Chimni does not problematise core flaws within the international economic system. In a nutshell, the global capitalist order is intrinsically exploitative: ‘economic development, or the costs of cosmopolitan lifestyles, or even the
accumulation of capital itself’ are the source of First-to-Third world imbalance. Chimni, for his part, laments the failure of First World states to allow ‘a more gradualist and meaningfully [sic] transition of former colonised people into the international economic regime of production and commodity exchange. According to Haskell, at no point does Chimni question the foundations of international economic law and the seeming inevitability of inequality within the existing framework.
However, Chimni and Anghie point out that ‘there are real dangers in conceding the entire arena of international law to other methodologies and actors in the aspiration to find a more powerful discourse which would render injustice with such clarity and persuasion that it would compel the changes in international relations which TWAIL seeks.’
Further, in my opinion, this criticism is unjustified because many theories possess both negative and positive dynamics, critiquing the structure and operation of the law in one breath and proposing a reformative plan in the next. If the foundations, operations, and methodologies of international law are biased not to say jingoistic, which ideals are we meant to actualise?
Take for example how feminist or critical race scholars, have grappled with the extent to which a legal system that produced bad effects could be used to overcome the very effects that the law was central in constructing and consolidating. Critical race theorists and practitioners recognized that even though the law’s racist legacy was problematic, law could play the paradoxical role of securing the formal equality of the formerly enslaved peoples.
Funnily, TWAIL is critiqued both for not being radical enough and also for being too radical. This is a critique that has been used against Critical Legal Studies for a while, and makes you wonder if it is one that is leveraged at anything disrupting the norm.
The basic idea <a href=”http://<!– wp:paragraph –> <p> He also points out that if a member of a Security Council were to ask a TWAILer on advice on whether or not to impose sanctions in aid of indictment of the Sudanese Govt, “<em>TWAILERs, if they are faithful to their scholarly roots, would advise continued Council inaction even though the Security Council itself started the process that led to the ICC’s indictments.</em>”</p> <!– /wp:paragraph –> <!– wp:paragraph –> <p> I’m not sure that one necessarily has to be a TWAILer to come to this conclusion. Further, Alvarez himself points out that his own work has often been as critical of certain liberal approaches to international law just as TWAIL scholarship has been.</p> according to Alvarez is as follows- TWAIL offers no positive agenda for action or reform in international law and relations. The idea that TWAIL is nihilistic, disinterested in the kinds of pragmatic reforms that remain relevant, and ill-suited to the needs of practice has been voiced fairly often by European scholars.
He also points out that if a member of a Security Council were to ask a TWAILer on advice on whether or not to impose sanctions in aid of indictment of the Sudanese Govt, “TWAILERs, if they are faithful to their scholarly roots, would advise continued Council inaction even though the Security Council itself started the process that led to the ICC’s indictments.“
I’m not sure that one necessarily has to be a TWAILer to come to this conclusion. Further, Alvarez himself points out that his own work has often been as critical of certain liberal approaches to international law just as TWAIL scholarship has been.
Thus, I think this argument is a bit overstretched but at the same time it is important to acknowledge that he movement is not yet associated with a particular set of policy prescriptions (whether or not radical or revolutionary), although some of its scholars individually have advanced their own.
3. Absence of Doctrine:
TWAIL favours the abstract ‘approach’ rather than its more technical counterparts of theory and method. Scholars reject positivism for its formalism and naturalism for its
Eurocentrism seemingly, however, remaining open to both under the right conditions. For instance, customary law, criteria for statehood, human rights norms, among others, are based in European subjectivity yet posited as universal objectivity.
In doing so, it fails to engage with doctrine which means that for the post colonial law student, international law still gets taught in a linear manner. TWAIL scholars are often pushing from interdisciplinarity which is possibly why a lot of the scholarship is influenced by other disciplines, notably international relations, political theory, and political economy. This has led to TWAIL scholarship addressing a topic of interest to international lawyers but almost entirely from another disciplinary perspective. However this cannot be an excuse to completely leave the province of law.
There are some exceptions. For e.g. James Gaathi and Upendra Baxi have discussed the doctrine of sources, Makkonen has discussed the doctrine of law of succession of states, Usha Natarajan and Ntina Tzouvala have discussed the contours of the law on the use of force. TWAIL, we are told, is an intellectual community united by a common idea. I’m unsure whether this part of TWAIL scholarship can be tested against a common logic based on TWAIL theory.
4. Social Composition of TWAILers
So far, there has not been any empirical data on the socio-economic background of TWAILers. It is however interesting to note that though the scholarship often situates itself as the intellectual heir to the legal and political philosophy written during decolonization, the movement seems to actually be more closely linked to post-colonial and post-structural literary theory produced during the ‘turn to culture’ in Western academia between the 1970s-80s. In the spring of 1996, a group of Harvard Law School graduate students
initiated a series of meetings to figure out whether it was feasible to have a third
world approach to international law and what the main concerns of such an
approach might be. The background papers were presented to the group by Bhupinder Chimni who was a Visiting Fellow at the Graduate Program at Harvard Law School in the 1995-1996 academic year.
This in itself is not a bad thing. If TWAIL is all about a certain political project, it is about supporting marginalized or oppressed sections anywhere. Hence to that extent, I do not see any barriers for first world scholars to become ‘TWAILers’. The question then becomes how far scholars located in the Global North recognize the history and internal contradictions in the language of mainstream international law scholarship and its distributive consequences? The agenda of TWAIL as articulated in its vision statement critiques the privileging of the west over the rest and implicitly links it up with colonialism and resultant post-colonial realities in third world countries. This broad conceptual framework invariably excludes other forms of hierarchies and discrimination which do not fit into it. According to Haskell, TWAIL’s highlights the proximity between liberal and Third World fetishisation of indigineity.
a. Does not seem to capture the concerns of all the margin:
Bachand reprimands TWAIL for failing to address the treatment afforded to the wretched of the wretched: lower castes, creole, and indigenous societies among others. These gaps result in a misrepresentation of the nature of exploitation, creating false binaries and false unities. An example of this in the South Asian context is the marginalization of peoples of lower castes and indigenous peoples, who are historically kept away from knowledge production and whose lived experiences only recently received the attention as subjects of serious analysis. This is an argument I personally find very convincing but I also imagine that it is one which doesn’t necessary call for a complete overhaul of the TWAIL movement but a more nuanced change in its aspirations.
Reasons for this oversight within TWAIL can be partially explained from the absence of scholars with lived experiences of lower castes among the international lawyers coming from the subcontinent. Historically the caste question has an uneasy relation with the anticolonial discourses and movements in the subcontinent. The anti-caste movements led by B.R. Ambedkar had a skeptical relationship with the anti-colonial movement as articulated and led by Gandhi and others.
Relatedly, Bachand also speaks about the superficiality of TWAIL’s engagement
with capitalism including, from the perspective of the Third World, the reduction of its populations to a docile labour class on one hand and an equally voracious consumer class on the other. On this point, I think many TWAIL scholars are increasingly making space for a transnational elite in their scholarship and this is also probably why the understanding of what it means to be from the Third World/ Global South has shifted from a purely geographic notion to one wherein there are many global souths, sometimes within a global north.
During an informal discussion with Prof. Prabhakar Singh, I realised that this notion would have gained most currency in disputes between two Global South states wherein there is a total lack of TWAIL analysis. However, I’m yet to see such a critique being mounted.
b. Lack of clarity
Make no mistake about it: at universities across the world, junior and senior scholars alike
continue to expand TWAIL’s orbit. Some are travelling the beaten paths of TWAIL’s denizens while others punish its boundaries, taking TWAIL in pioneering directions. Nevertheless, observable across and within TWAIL scholarship is tension, perhaps even confusion about its identity.
Some strains of TWAIL are more oppositional than reconstructive, while others are more reconstructive than oppositional. Some can be seen as leaning toward post-structuralism (such as Rajagopal and Vasuki Nesiah), but many do not accept the post structuralist label. Some TWAIL scholars are avowed socialists (such as Bhupinder Chimni),
but many are not. The goals also vary. To Mutua, international law must be opposed; to Anghie and Chimni, scepticism is sufficient; and to Okafor, resistance is needed.
Some might say—including these same authors—that the differences are more a matter of degree or tactic than of substance. There is validity in this assertion as more unites than distinguishes them. However, critics argue that TWAIL and kindred approaches lack “clarity, insight, theoretical sophistication, persuasiveness and depth,” elements that are the hallmark of good scholarship. Jose Alvarez has argued that TWAIL big-tent agenda has not served its ability to define itself apart from other critical approaches, particularly those that
take deconstruction seriously such as New Approaches to International Law (NAIL).
Is this criticism a bit unfair? Okafor responded to it directly and noted that internal contestations, even internal contradictions, are part and parcel of the evolution of a theoretical school and weak grounds for reproach. In my head, all I can think of is feminism- how there are multiple kinds of feminist to the extent that calling yourself a feminist hardly denotes a particular moral or legal strategy. Some feminists demand death penalty for rape, others are completely opposed to carceral politics. Yet I don’t see any serious academic calling for us to leave the feminist project solely on this count?
Similar to the feminist project, TWAIL too has a broad agenda of seeking to “transform international law from being a language of oppression to a language of emancipation-a body of rules and practices that reflect and embody the struggles and aspirations of Third World peoples and which, thereby, promotes truly global justice.”
5. Other grounds
TWAIL’s approach has also rendered it vulnerable to charges of subjectivity, anti-intellectualism, or even incivility. I find little merit in these arguments and hence, not given them much space in the blogpost. I believe that any posturing inclined towards the Other will necessarily call for a certain degree of subjectivity, especially in the context of the historical myth that the law is represents a neutral epistemological and moral truth. The charge that it is uncivil is probably a reflection that until now non-third world approaches dominated scholarly norms about international law.
Overall, I do think that TWAIL whether you call it a project, theory or movement, has immense potential but for it to realise its potential there should be internal critiques.