INTRODUCTION
Today, the ‘Third World’ country is the term first used by Alfred Sauvy in 1952 which now has come to denote a country which can be categorized as a ‘developing’ country. However, the origins of this term can be traced to the World War/Cold War period when Third World signified the countries who were non-aligned; neither part of the ‘free world’ nor of the ‘communist world’. Scholars vouching for the Third World Approaches to International Law (TWAIL) have stressed on the importance of using the original terminology of ‘Third World Countries’. Global South is another term frequently used as a synonym for Third World countries. The terms North and South emerged during the 1970s but till today no strict definition thereby questioning geographical preciseness of this term.
The Asian-African Conference held in Bandung organised by Egypt, Indonesia, Burma, India, Pakistan, Sri Lanka in 1955 was where Indian PM Jawaharlal Nehru rejected both sides in the ongoing cold war and propounded a principle of ‘non-alignment’. This led to the birth of Non-Aligned Movement (NAM) in 1961. This along with the Organisation of Petroleum Exporting Countries (OPEC), Group 77 shows the building momentum among the Third world countries against the supremacy of the First and Second world countries. Further a rebellious attitude was also shown by the Third World reflected in its calls for a New International Economic Order (NIEO).
TWAIL has undertaken study of international law, its global history, role of international lawyers within the international order, importance of social movements, indigenous people, migrants etc. with a background of such previous organisations who came together with a common agenda. TWAIL has stood as a check to the Eurocentric approach taken by international law over the years. And accelerated efforts to balance out the asymmetries of power. According to Gathii, “TWAIL is a discipline in transition, expansion, definition and internal contestation about the varied agendas of its scholars, all at the same time.” Balakrishnan Rajagopal’s work brings light to the resistance that TWAIL projects to safeguard interests of the third world.
TWAIL was born in 1996 at Harvard Law School when group of students came together to discuss whether if taken a third world approach to international law what might be the major obstacles. The group consisting of Celestine Nyamu, Balakrishnan Rajagopal, Hani Sayed, Vasuki Nesiah, Elchi Nowrojee, Bhupinder Chimni and James Thuo Gathii coined the name of the group as ‘Third World Approaches to International Law’ (TWAIL). Antony Anghie and Chimni coined the terms ‘TWAIL I’ and ‘TWAIL II’: the former consisting of first generation post-colonial and the latter taking cues and developing further scholarship. The struggle of TWAILers II, III, IV and beyond – is to deal with the vestiges of ‘formal’ empire and expanding multi-dimensional forms of ‘informal imperialism’.
APPROACHES TO TWAIL
While discussing about the approaches within TWAIL, Gathii mentions critical, feminist, post-modern, Lat-Crit Theory (Latina and Latina Critical Theory Inc.), postcolonial theory, literary theory, modernist, Marxist, critical race theory among others. With these approaches what is studied is hegemony of dominant narratives along many axes– race, class, gender, sex, ethnicity, economics, trade, etc – and in inter-disciplinary ways – social, theoretical, epistemological, ontological and so on. Gathii discusses some coordinates; strictly refraining from calling them as principles as TWAIL scholarship has always been proposing for an ever-changing methodology and international order. It terms the coordinates as:
History matters: Importance here is given to how history has shaped the current geo-politics. Taking into account history, TWAIL scholars envision to build a south oriented framework for international order.
Empire moves: Imperialism cannot be only located in the country of the British. From local to national, public to private, ideological to material; Empire is traced in each of the components of nation and human life. This coordinate helps the TWAIL scholars to trace the colonial power and its fangs.
South moves: As the North moves, the South also is a term which is dynamic according to local specificities, regional trends, and larger changes to the global economic and political system.
Struggle is multiple: TWAIL is engaged is one fought on multiple fronts and on a diverse and shifting terrain. Thus, TWAIL is a discipline in transition, expansion, definition and internal contestation about the varied agendas of its scholars, all at the same time.
Struggle is here: TWAIL scholars, therefore, the struggle remains, and must remain, always there, and always here. It is, and must always be, about present ‘tactics’, and about a longer ‘strategy’.
CENTRAL THEMES OF TWAIL
As Karin Mickelson argues, history is the most fundamental element of a third world approach to international law. What is important to note here for TWAIL scholarship is the emphasis on seeing international legal history ‘as something alive than dead.’ Makau Mutua’s provocative thesis about redrawing the map of Africa because of the colonial illegitimacy of current borders is yet another example of seeing international legal history as relevant to and constitutive of the present rather than as a relic of the past. Antony Anghie’s book Imperialism, Sovereignty and the Making of International Law, (2005) is the leading TWAIL text revising mainstream international legal history tracing of continuities of coloniality in modern international law.
According to Vikrant Dayanand Shetty, “the ‘post’ in ‘postcolonial’ does not refer to ‘after period of colonialism’ or ‘triumphing over colonialism’ but to the ‘continuation of colonialism in the consciousness of formerly colonized peoples and in institutions imposed in the process of colonization.’” Examples of colonial continuities include, the composition of the UN Security Council, with five veto-wielding Permanent members; the weighted system of voting in the Bretton Woods institutions that gives the world’s richest economies the power to set the economic agenda of the former colonial countries; the rules of customary international law such as pacta sund servanda that bind former colonialized countries to comply with treaties even though they took no part in their formulation or formation; and the fact that self-determination retained the subordinate and dependent position of third world elites to their former colonial powers and to multinational capital interests.
Chimni analyses that, “Today, international law prescribes rules that deliberately ignore the phenomena of uneven development in favor of prescribing uniform global standards.” TWAIL recognises that the domination that US and Europe had over former colonies is in practice till date. In India, it can be seen in the fact that since the British left, we haven’t yet let go of the legal structure that the empire had built for us. India is also still in grips of the Macaulay’s system of Education. She has adopted the foreign terms like ‘secular’ in her constitution, ‘English’ as the official language, morals as per the Christian teachings. As India westernized, she also inherited such institutions which today can be called as the ghosts of the Empire. This has led to many TWAIL and other Indic scholars to question whether since independence has India ever been free. Chimni reiterates that the civilizing mission that the colonisers were on is the same mission with which they are using international law to rehabilitate and govern third world countries especially Africa; thus, legitimizing and justifying both the forms of colonial attitudes. He says, “humanitarianism is the ideology of hegemonic states in the era of globalization marked by the end of the Cold War and a growing North South divide.” This concept of the ‘civilizing mission’ has provided the moral basis of exploitation of the Third World. However, this exploitation, when administered by the colonial power, is legitimate because it is inflicted in self-defence, or because it is humanitarian in character and indeed seeks to save the non-European peoples from themselves. Less is discussed in mainstream international forum on the holocaust that the Victorian Empire committed on the citizens of India. Indian soldiers fought for the British in both World wars; 60,000 sacrificed their lives in world war I itself; she was the second largest contributor to Empire’s War in the 1940s; she bore the brunt of Churchill’s horrifying war policies which aggravated the already existing famine conditions. 5.4 million Indians according to Madhushree Mukherjee were killed amounting to war crimes justified under the garb of colonialism. She writes in her book ‘Churchill’s Secret War’, “if provisions protecting civilians had been in place before the war, the denial policy and the failure of His Majesty’s Government to relieve the famine could conceivably have been prosecuted as war crimes.”
CRITIQUES
TWAIL has failed to produce a single authority but has stirred the waters of international law with the ladle of colonial history. James Thuo Gathii also acknowledges the criticisms levelled against TWAIL on the basis of it being anachronistic, nihilistic and lacking methodological clarity. Secondly, its own critical attitude has been accused of being baseless. The absence of hierarchy and authority has given rise to flexible and fluid ways but has also proved as a disadvantage to organize the movement effectively. However, TWAIL is not a mere deconstructive and oppositional movement or network of scholars, but rather one that sees the potential of reforming if not remaking international law for the greater good. It also questions some third world countries and hence cannot be alleged to have been assuming innocence of these countries.
CONCLUSION
For the first time in history, emerging economies are counterparts on more than half of global trade flows, and south–south trade is the fastest-growing type of connection. South–south and China–south trade jumped from 8 percent of the global total in 1995 to 20 percent in 2016. Emerging economies, led by China and India, have accounted for almost two-thirds of global GDP growth and more than half of new consumption in the past 15 years. The founder of TWAIL Gathii has expressed that TWAIL-ers have transcended boundaries. There have been efforts from non-third world living scholars along with third world living scholars. He calls it a decentralized network which has been given exposure across not only in academies but also as course leaders, council members, etc. Some suggestions toward a new economic world order on the basis of TWAIL are to increase transparency and accountability of international institutions; increasing sensitivity towards problems of the third world; accepting that the solutions applied to western countries aren’t the exact solutions for third world problems; indigenous culture to be used to maximise the reach of international principles; Human Rights should be interpreted by keeping an account of the conditions of the third world countries; accepting that other than minority and acknowledged class there can be oppression of majority in such countries too; Ensuring Sustainable Development With Equity. Such suggestions to make international law more sensitive, equitable and far-reaching can be done only with the help of TWAIL. TWAIL scholars from and outside third world countries need to undertake this task and make the other side of the narrative aware of their side. Ramping up needs to take place since the third world countries are the future of tomorrow.
