By Rajat Shandilya from Faculty of Law, Aligarh Muslim University
The term TWAIL is usually used to refer to the ‘Third World Approaches to International Law’. The scholars connected to the field of TWAIL have always made efforts to figure out the suppressive areas under the ambit of international law by critically examining the western ideas and theories of International Law. It is a well known fact that TWAIL is an entirely separate school of legal thought, concerned mainly with the approach of the presently developing countries towards the aspect of International Law. TWAIL is an intellectual and political movement. In common terminology, the definition of TWAIL as given by Mutua is ‘The broad dialectical of opposition to international law’ which has a perception about International Law that in a way supports the ill-treatment of the ‘developing countries’ done by the western giants in the International Legal Arena. TWAIL can be said to be a link between the international law and the time of colonisation of various third world countries. As one of the different way of approaching International Law, TWAIL is said to be an approach that can be traced from history of international law in the western perspective, and also eliminated the same by examining its very aspects.
OBJECTIVES OF TWAIL:
Every organisation which is formed at national and international level has a particular objective behind its formation. In the same way, the TWAIL also has a number of very important and meaningful goals which are as follows:
- To be able to understand the concept of the western power which continues to dominate over the Third World Countries by the medium of international legal framework and norms.
- Another objective of TWAIL is to open new avenues through the means of research and development for the Third World Countries so that they could have a greater say and fair representation in the international arena and in the International Llaw making and law implementation process.
- To come up with a new system of International Law, altogether. This can go hand-in-hand with several other critiques along with the Neoliberal approach towards International Law.
- To make all possible efforts to reduce and subsequently eradicate the situation of poverty in the Third World Countries by the means of bringing effective policies into circulation and by doing extensive research to find out new ways of good governance, so that the ‘Third World’ could progress.
- To understand and engage the ‘Third World Scholarship’ into the analysis of International Law.
APPROACHES ADOPTED BY TWAIL:
TWAIL, as discussed earlier, rethinks and examines the colonial dominance over the International Law. It should be taken into account that all the scholars associated with TTWAIL (called as TWAIL-ers) work in order to achieve a common goal, however, the approaches adopted by each of them may be different. Hence, it can also be said that TWAIL is a diverse and ‘coalitionary movement.’ Even though different scholars may bring into use different theories ranging from ‘Marxism’ to ‘Feminism’ to the ‘Critical Race Theory’ but all of them primarily focus on the same goals which they sought to achieve with regard to benefitting the Third World Countries so that these countries can have a better say in the arena of International Law.
THE EMERGENCE OF THE THIRD WORLD:
The Rise of the Third World can be said to be around the period of the Second World War where most of the countries got their freedom from the colonial powers around the 1950 and they emerge as independent nations throughout the continent of Asia, African and Latin America. As a result of the emergence of new nations in all the three continents, both the Soviet Union and the United States of America tried to assert their ideologies over the newly independent nations and wanted to add on in their allies and dominate the world. At that time, the Third World Countries were the countries that were the part of the blocked that was either led by the USA or the USSR/Soviet Union.
Based on the different types of arguments advanced by the various scholars of the TWAIL, most acceptable the arguments of Professor B.S Chimni and Professor Antony Anghie, who may also be said to be the torch bearers of two different schools of thoughts over TWAIL, namely TWAIL I and TWAIL II, respectively. After comparing and contrasting both the views advanced by the scholars, mentioned below are the characteristics associated with the ‘First Generation School of TWAIL’ (TWAIL I).
- Rejection of the western International Law in order to save the third world people from the suppression of the western powers.
- Helping the Third World Countries to secure a sovereign and independent status, and also focus on the doctrine of nona-intervention so as to grant more space to sir countries which can enable them to take their own independent decisions and help them counter the Imperial dominance. The TWAIL also focuses on the idea and principle of ‘Collective Contribution.’
Moving further, the following characteristic features can be associated with the second school of thought of TWAIL (TWAIL II):
- TWAIL does not condemn the idea of ‘contributionism’ but also focuses on the examination of scenarios, selection of approaches, concepts and equality which transcends the size of a community.
- TWAIL II school of thought gives more emphases on the people of the Third World Countries rather than giving importance to a state at the first place.
POSITION OF TWAIL IN THE CONTEMPORARY SCENARIO:
In the present time, there has been an increment in the academic discussion over the topic of TWAIL. The legal professionals from all across the globe have shown keen interest in the past recent years. But on the other side, many people are also unaware about the concept. The reason for the same being its unstructured setup and absence of a formal membership. The number of TWAIL conferences held in total stands to be at 5 till December, 2011. All these 5 conferences can be traced as TWAIL I, TWAIL II, TWAIL III, TWAIL IV and TWAIL V.
A notable point to be kept in mind here is that the different conferences and generations of TWAIL should not be confused between each
After the detailed analysis of these critical tasks and overviewing the Third World Alternatives, and functioning of the International Law, one could say that the participation of the sovereign states, as well as their cooperation, participation of the civil society, change in educational curriculum and media is very imperative.
People who were victim of the United Nations resolutions, the theories and practices of the International Law in places like Somalia, Sudan, Palestine, Darfur, Kosovo, Bosnia, Iraq have proved their inadequacy to bring the real change.
It is also conducive to recognise how the African States have added to the development of the International Laws, despite its marginalisation from the International Law system. Africa could put a valid claim for being there and being a part of the process where new rules and principles of International Law are being shaped while strengthening the existing ones.
Some results, we could expect, are the broadening of the refugee definition and the principle of non-refoulement in the area of refugee law, rights of transit to the sea, concept of people’s rights differentiated from the people’s right, the expansion of the traditional categorisation which helps to embrace the third generation rights.
1. ‘Aditya Swaroop Singh’, ‘Third World Approach To International Law’ ‘International Journal of Law, Vol. 5; Issue 5: ISSN: 2455-2194.’
2. World Politics 41.2 (1989):429
3. ‘James Thuo Gathii’, ‘The Agenda of Third World Approaches to International Law (TWAIL), ‘Cambridge University Press (2019).’
4. M. Mutua, (2000) “What is TWAIL?” Proceedings of the 94th Annual Meeting of the American Society of International Law: