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What is TWAIL?

Published online by Cambridge University Press:  28 February 2017

Makau Mutua*
Affiliation:
School of Law, State University of New York (SUNY) at Buffalo; Human Rights Center, SUNY-Buffalo

Abstract

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Type
Meeting Report
Copyright
Copyright © American Society of International Law 2000

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References

1 A number of Western academics, many identified with, or sympathetic to, critical legal scholarship, have exposed the fallacies of the neutrality, fairness and justness of international law and its discourse. See, e.g., Koskenniemi, Mariti, From Apology to Utopia: The Structure of International Legal Argument (1989)Google Scholar; Kennedy, David, A New Stream of International Legal Scholarship, 7 Wis. Int’l. L. J. 1 (1988)Google Scholar; Purvis, Nigel, Critical Legal Studies in Public International Law, 32 Harv. Int’l L. J. 81 (1991)Google Scholar.

2 For a very direct attack of the regime of international law, see Mohamed Bedjaoui, Towards a New International Economic Order (1979).

3 The universality of international law is beyond dispute. This regime of global control forcibly applies “to all states regardless of their specific cultures, belief systems, and political organizations.” Anghie, Antony, Finding the Peripheries: Sovereignty and Colonialism in Nineteenth-Century International Law, 40 Harv. Int’l L. J. 1 (1999)Google Scholar. It is important to note, however, that the universality of international is geographical, not normative.

4 Anghie, Antony, Francisco de Vitoria and the Colonial Origins of International Law, 5 Soc. & Legal Stud. 321 (1996)CrossRefGoogle Scholar.

5 The Bandung Conference took place in Bandung, Indonesia, in 1955 and was intended to create a coalition of Third World states that would articulate political and economic issues specific to them and force these issues onto the international agenda. It brought together the first independent African and Asian states and essentially launched a political movement that continues to influence global politics. See Robert Mortimer, The Third World Coalition in International Politics (1984).

6 Postmodernism, which stresses fluidity in the understanding of social conditions, holds that most phenomena are contextual, complex and contingent on the interplay of historical, social and cultural factors, among others. It is an antiessentialist philosophic construction. See Cook, Anthony E., Reflections on Post-Modernism, 26 New Eng. L. Rev. 751 (1992)Google Scholar.

7 The terms postcolonial and postcoloniality refer to an intellectual trend in Western universities toward reclaiming Third World concerns within the general framework of postmodernism. See Dirlik, Arif, The Post-Colonial Aura: Third World Criticism in the Age of Global Capitalism, 20 Critical Inquiry 328 (1994)CrossRefGoogle Scholar.

8 See Rajagopal, Balakrishnan, Locating the Third World in Cultural Geography, 1 Third World Legal Stud. (1998-1999)Google Scholar (special issue on postcoloniality and law), for discussion of Third World critiques of postmodernism.

9 The group of 77 was formed by Third World states as a forum for articulating problems and solutions to the international political and economic order, which they considered unjust and unfair. It became a key forum for confronting Western hegemony over global economic and political matters.

10 Lassa Francis Lawrence Oppenheim, one of the most distinguished international legal scholars, wrote that international law “is in its origin essentially a product of Christian civilisation.” 1 L. Oppenheim, International Law : A Treatise 4 (Arnold D. McNair ed., 1928). The British regarded international law the province of Christian nations. “Members of the society whose law was international were the European states between whom it evolved from the fifteenth century onwards, and those other States accepted expressly or tacitly by the original members into the Society of Nations, for example the United States and Turkey.” Crawford, James, The Criteria for Statehood in International Law, 48 Brit. Y. B. Int’l L. 93, 98 (1976-1977)Google Scholar; see also Gathii, James Thuo, International Law and Eurocentricity, 9 Eur. J. Int’l L. 184 (1998)CrossRefGoogle Scholar.

11 ‘ For a discussion of the intellectual relationships between Grotius and Vitoria, see Nussbaum, Arthur, A Concise History of the Law of Nations (1954)Google Scholar; Kennedy, David, Primitive Legal Scholarship, 27 Harv. Int’l L. J. 1 (1986)Google Scholar; Jamesb. Scott, The Spanish Origin of International Law (1934).

12 Mohamed Bedjaoui, the Algerian on the International Court of Justice, issued this indictment of traditional international law: “This classical international law thus consisted of a set of rales with a geographical bias (it was a European law), a religious-ethical aspiration (it was a Christian law), an economic motivation (it was a mercantilist law), and political aims (it was an imperialist law).” Bedjaoui, Mohamed, Poverty of the International Order, in International Law: A Contemporary Perspective 153 (Falk, R., Kratochwil, F. & Mendlovitz, S. eds., 1985 Google Scholar).

13 This handful of European imperial powers consisted of Britain, France, Germany, Holland, Portugal, Italy and Spain.

14 Anghie, Finding the Peripheries, supra note 3, at 3.

15 Statehood is declared through the act of recognition, which confers rights and duties and the ability of a society to enter into relations with other states. See Oppenheim, International Law, supra note 9, at 142-45. Hersh Lauterpacht completes this argument by noting that the full international personality of a society is not automatic; that is, existing states must perform the task of determining if a society should be a state. See Hersh Lauterpacht, Recognition in International Law 55 (1947).

16 For a discussion of the legal and political justifications for colonization, see wa Mutua, Makau, Why Redraw the Map of Africa: A Moral and Legal Inquiry, 16 Mich. J. Int’l L. 1113 (1995)Google Scholar.

17 Basil Davidson, Africa in History (1991).

18 See, e.g., Adam Hochschild, King Leoplold’s Ghost: A Story of Greed, Terror, And Heroism in Colonial Africa (1998). The book provides a vivid historical account of the brutalities committed in Central Africa by the Belgians.

19 Anghie, Finding the Peripheries, supra note 3, at 7.

20 Observer, Lagos, Feb. 19, 1885, quoted in Umozurike, U.O., International Law and Colonialism, 3 E. Afr. L. Rev. 47, 50 (1970)Google Scholar.

21 Id.

22 The term Age of Empire describes the period of European domination and exploitation of non-European peoples for the benefit of Europe. See Eric Hobsbawm, The Age of Empire: 1875-1914 (1987).

23 V. I. Lenin, Imperialism: The Highest Stage of Capitalism 96-7 (1947) (quoting Die Neue Zeit, XVI, i, at 304).

24 UN Charter Art. 1.

25 China, self-identified as a Third World country, was the only non-European state with a permanent seat on the Security Council. Each of the five members holds a veto power over any decision of the Security Council.

26 Otto, Dianne, Subalternity and International Law: The Problems of Global Community and the Incommensurability of Difference, 5 Soc. & Legal Stud. 337, 340 (1996)CrossRefGoogle Scholar; see also Bedjaoui, Towards a New International Economic Order, supra note 2; Sathirathai, Surakiart, An Understanding of the Relationship between International Legal Discourse and Third World Countries, 25 Harv. Int’l L. J. 395 (1984)Google Scholar.

27 Daily News (Tanzania), Nov. 17, 1976.

28 Ann-Christine Habbard & Marie Guiraudd, The World Trade Organisation and Humanrights (1999) [publication of the International Federation of Human Rights Leagues].

29 See Mickelson, Karin, Rhetoric and Rage: Third World Voices in International Legal Discourse, 16 Wis. Int’l L. J. 353 (1998)Google Scholar, for a good discussion of the different meanings and uses of Third World.

30 Nyerere, Julius K., South-South Option, in The Third World Strategy: Economic and Political Cohesion in the South 9, 10 (Gauhared, Altaf., 1983)Google Scholar.

31 Slater, David, Contesting Occidental Visions of the Global: The Geopolitics of Theory and North-South Relations, in 4 Beyond Law-Mas Alla Del Derecho 97, 101 (1994)Google Scholar.

32 Gay Atri Spivak, Outside in the Teaching Machine 13 (1993).

33 See Third World Attitudes Toward International Law (Snyder, Frederick E. & Sathiratliai, Surakiart eds., 1987)Google Scholar for a diverse sampling of TWAIL scholarship.

34 See, generally, Basil Davidson, African Civilization Revisited (1991); Mutua, Why Redraw the Map of Africa, supra note 15.

35 Mutua, Makau, Savages, Victims, and Saviors: The Metaphor of Human Rights 42 Harv. Int’l L. J. (forthcoming 2001)Google Scholar; see wa Mutua, Makau, The Ideology of Human Rights, 36 Va. J. Int’l L. 589 (1996)Google Scholar; wa Mutua, Makau, Limitations on Religious Rights: Problematizing Religious Freedom in the African Context, in Religious Hum An Rights in Global Perspective: Legal Perspectives 417 (van der Vyver, J. D. & Witte, J. eds. 1996)Google Scholar.

36 See Ian Martin, The New World Order: Opportunity or Threat for Human Rights, Harvard Law School Human Rights Program (1993), for a good discussion of the domination of the Third World by the West, and the unfair uses by the West of the UN Security Council.

37 Recent cases in point are the instances of UN inaction in Rwanda and Somalia. See United Nations, The United Nations and Rwanda, 1993-1996 (1996)Google Scholar; Rosenblum, Peter, Dodging the Challenge, 10 Harv. Hum. Rts. J. 313 (1997)Google Scholar [review of the United Nations and Rwanda] .

38 U.S. policy toward Iraq—in particular the imposition of sanctions that have had a devastating effect on children and health services—underscores the ubiquity of Western power around the world.

39 The U.S.-led North Atlantic Treaty Organization military bombardment of the Federal Republic of Yugoslavia, in clear violation of the UN Charter, is a case in point. See Byers, Michael, Introduction, in The Role of Law in International Politics 1 (Byers, Michael ed., 2000)Google Scholar.

40 See Otto, Subalternity and International Law, supra note 25, at 348-359.

41 See Mutua, Limitations on Religious Rights, supra note 34; see also Mutua, Makau, Returning to My Roots: African “Religions” and the State, in Proselytization and Communal Self-Determination in Africa 169 (An-Na’im, Abdullahi A. ed., 1999)Google Scholar.

42 Critical Race Theory: The Key Writings that Formed the Movement xiii (Kimberle Crenshaw et al. eds., 1995).

51
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