Special Issue
Vol. III, No. 1
(Spring '11)

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This article traces the contemporary origins of Third World Approaches to International Law (TWAIL) in the late 1990’s. It argues that since then, TWAIL-ers have not sought to produce a single authoritative voice or text. Instead, they have generated a vibrant ongoing debate around questions of colonial history, power, identity and difference, and what these mean for international law. TWAIL scholarship has also considered possibilities for egalitarian change in a broad variety of areas in the fields of public international law and international economic law. In doing so, TWAIL-ers have addressed multiple issues related to society, politics, identity and economic - with an underlying commitment to democratic values and concerns in relations within and between the Third World and developed countries.

As a distinctive way of thinking about international law, TWAIL is a historically aware methodology – one that challenges the simplistic visions of an innocent third world and a colonizing and dominating first world. This methodology proceeds from the assumption that is not possible to isolate modern forms of domination such as governmentality, from the continuation of older modes of domination (colonial and precolonial).

This article argues that TWAIL has become an expansive, heterogeneous and polycentric dispersed network and field of study. As a field, TWAIL is being continuously re-invented and shaped by new scholars infusing their passion into its central concerns. These scholars are refashioning and contesting what they take as central TWAIL tenets and inventing their own TWAILS. Thus, TWAIL is a discipline in transition, expansion, definition and internal contestation about the varied agendas of its scholars, all at the same time.

In the face of a globalised economy and an ascendant transnational legal apparatus, states find themselves surrendering responsibilities that were once within the exclusive purview of national governments, to transnational regulatory regimes. As these regimes expand in importance and jurisdiction, questions arise as to the democratic implications of this reconfiguration. In this article, we consider whether there is space for the direct participation of citizens in international law-making. We argue that, when seen through a TWAILian lens, mainstream legal constructs can be used to increase both Third World and popular representation in the international legal regime. The rule of law provides the ideological basis for mass decision-making in international law while the principle of equality opens the door to universal participation in the formulation of laws: no globalisation without representation. The urgency of a democratic international legal regime has been made palpable by soaring global inequality. As we demonstrate, a multi-level global governance structure – a continuum of political engagement from the local to the global – can expand participation beyond the nation-state and improve the likelihood of a more equitable world.

This article explores the relationship between TWAIL scholarship and the universality of international law. In particular, it offers an account of this relation as the outcome of what we describe as TWAIL’s characteristic double engagement with the attitudes of both reform and resistance vis-à-vis international law and scholarship. In being thoroughly critical of the cornerstones of the established order, and yet simultaneously engaged with the practice and operation of international law, TWAIL scholars have intimated in their search for justice, an idea of universality capable of accepting international law as an agonic project. To further its political engagement with the universal promise of international law, we suggest an explicit methodological turn for TWAIL scholarship that is attentive to international law as a material project. By paying attention to the daily operation of international law at the mundane, quotidian and material plane, we suggest that TWAIL can sharpen its analytical potential and generate at the same time, a ‘praxis of universality’. Such a praxis would be capable of troubling the constitution of places and subjects in the name of the international, whilst heightening our sensitivity to the numerous forms of resistance that are already at play as a particular normative project is being institutionalised and administered across the world.

The article draws on the theoretical perspective of Third World Approaches to International Law (TWAIL) in order to review a case study in international investment arbitration. From the arbitration proceedings in the International Chamber of Commerce, which arose from controversies regarding the Dabhol project in India, three inferences are drawn. First, it demonstrates how investment contract arbitrators may approach their role as going beyond the usual remit of commercial arbitration that is rooted in an autonomous agreement between the contracting parties. In this case, the arbitration was recast as a mechanism for wide-ranging review of government policies and judicial pronouncements associated with Third World interests. Second, the arbitration offers reasons to suspect regime bias, as discussed in the TWAIL literature, based on the institutional make-up of the tribunal and the content of its final award. Third, the arbitration formed part of a wider conflict between Western and Third World interests that implicated courts and tribunals in the U.S., the U.K., and India. With respect to TWAIL itself, it is suggested that the perspective provides a useful reference for organizing a critique. However, it is less relevant for the identification of specific options for reform in international arbitration or strategies to encourage, manage, or regulate investment for social ends. In this respect, TWAIL might benefit from the incorporation of more applied and technical study alongside its guiding principles and framework for critique.

Transnational corporate conduct that negatively impacts the environmental human rights of local communities is widespread in the operations of extractive sector companies. Yet, under principles of international environmental law, home states of transnational mining companies are neither obligated nor arguably even permitted to regulate and adjudicate environmental problems in host states. Proposals put forward in developed country home states to address these problems are often met with the claim that such regulations would be an imperialistic violation of host state sovereignty, and would create a competitive disadvantage for home state companies. This article will examine this problem by drawing upon insights from Third World Approaches to International Law (TWAIL).

Over the past few decades, international investment law has been increasingly used as an instrument for neo-liberalist ideals. However, inspite of the repeated failures of neoliberalism in international investment law, its adherents put forth new arguments and find new ways to augment these ideals, often cloaking old ideas in new forms in support of their ideals. In furtherance of this proposition, Part II of this article first discusses the four stages of international investment law, with particular focus on the third and fourth phases – neo-liberalism and normlessness. Part III of this article, after examining the arguments of recent investment law scholarship that absolute protection of foreign investments is a recent phenomenon, argues that such scholarship is a rehash of the ideals that had surfaced during the dominance of the neo-liberalism phase in international investment law. Part IV of this article illustrates and discusses how various states that are members of numerous investment treaties have reacted to the expansive interpretations of treaty provision by arbitrators. It also shows how states have reversed their earlier stances when their own interests were affected. As a counter to these neo-liberalist ideals, this article argues that international lawyers with a TWAIL perspective should confront and defeat these neo-liberal tenets in the interests of the third world. Further, the developing countries as a whole, should put forth a collective stand and be united in their opposition to investment treaties which would otherwise engender them to surrender their control over their natural resources.

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