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What is TWAIL?

  • Makau Mutua (a1)



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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); Kennedy, David, A New Stream of International Legal Scholarship, 7 Wis. Int’l. L. J. 1 (1988); Purvis, Nigel, Critical Legal Studies in Public International Law, 32 Harv. Int’l L. J. 81 (1991).

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). 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).

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).

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).

8 See Rajagopal, Balakrishnan, Locating the Third World in Cultural Geography, 1 Third World Legal Stud. (1998-1999) (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); see also Gathii, James Thuo, International Law and Eurocentricity, 9 Eur. J. Int’l L. 184 (1998).

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

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).

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).

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); 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).

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), 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).

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).

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) 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); see wa Mutua, Makau, The Ideology of Human Rights, 36 Va. J. Int’l L. 589 (1996); 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).

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); Rosenblum, Peter, Dodging the Challenge, 10 Harv. Hum. Rts. J. 313 (1997) [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).

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).

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

* This lecture grew out of a seminar on Third World Approaches to International Law (TWAIL) I taught in 1999 while I was a visiting professor at Harvard Law School. I dedicate this lecture to the late Frederick E. Synder, Assistant Dean for International and Comparative Legal Studies, Associate Director of East Asian Legal Studies, Administrator of the Graduate Program and Lecturer on Latin American Law at Harvard Law School. Dean Snyder’s early interest in TWAIL and his support for my own intellectual development hint at the possibilities for cross-cultural coalition building in the project of rethinking international law.


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