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TRAIL-ing TWAIL: Arguments and Blind Spots in Third World Approaches to International Law

Published online by Cambridge University Press:  20 July 2015

John D. Haskell
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Beginning in the early 1990s, Third World Approaches to International Law scholarship (TWAIL) destabilized the mainstream narrative within international law that its doctrines were constituted by the historic search for order between formally equal state sovereigns. Instead, TWAIL scholars argued that the key constitutive dynamic of the discipline was the colonial experience, which continues to hold powerful sway over the legal architecture of global regulation whereby international law functions to perpetuate inequality and oppression. At the same time, however, TWAIL scholarship regularly posits international law as an emancipatory force that may be mobilized on behalf of former colonized populations and other marginalized social identities. The rise of post-Marxist scholarship, and more generally, the turn to interdisciplinary within the profession in recent years offers an opportunity to analyze this curious paradox and construct alternative modes of analysis for future TWAIL scholarship. In the first section, the paper draws upon a diverse array of TWAIL scholars over the last thirty years to map the argumentative logic within TWAIL literature. In the second section, the paper incorporates debates and insights from complimentary academic disciplines to illuminate some blind spots within TWAIL’s central arguments, and potentially ‘radicalize’ its future possibility of critique against the growing inequality within global governance.

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Research Article
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Canadian Journal of Law & Jurisprudence , Volume 27 , Issue 2 , July 2014 , pp. 383 - 414
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Copyright © Canadian Journal of Law and Jurisprudence 2014

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References

The Institute for Global Law and Policy (IGLP, Harvard Law School), University of San Francisco School of Law, and Mississippi College School of Law (MC Law) provided institutional support in preparing this essay, and I am particularly grateful to David Kennedy and Jim Rosenblatt. A special thanks to CJLJ's Ben Singer for his meticulous editing of earlier drafts. This essay derives from countless conversations at conferences, workshops, and more informal events with colleagues, mentors and friends, many of whom have also written around these topics, and I am deeply grateful to this community. In particular, I am deeply appreciative to Arnulf Becker, Matthew Craven, Justin Destain-Stein, David Kennedy, Umut Ozsu, Akbar Rasulov, and more generally, my colleagues at Durham Law School, MC Law, and the students, faculty and speakers involved in the International and Comparative Law Center (ICLC, MC Law). All errors and omission are my doing.

1. See Mutua, Makau, “What is TWAIL?” (2000) 94 Google Scholar American Society of International Law Proceedings 31.

2. See Eslava, Luis & Pahuja, Sundhya, “Beyond the (Post) Colonial: TWAIL and the Everyday Life of International Law” (2012) 45(2)Google Scholar Journal of Law and Politics in Africa, Asia and Latin America 195 at 206.

3. See Gathii, James Thou, “International Law and Eurocentricity” (1998) 9 Google Scholar EJIL 184.

4. For an example of this mapping technique, see Kennedy, Duncan, “A Semiotics of Critique” (2001) 22 Google Scholar Cardozo L Rev 1147. With a field of scholarship as diverse as TWAIL, any attempt to explain its central arguments and claims is prone to over-simplification: there is simply no one size fits all approach. Rather, the goal in mapping is to provide a “listing, with explanations, of the moves or tropes or building blocks out of which [these scholars] have composed [their] various and conflicting theories.” Ibid at 1147.

5. For a list of these conferences and a very brief description of where TWAIL scholarship stands today, see “Third World Approaches to International Law (TWAIL): Capitalism and the Common Good”, Conference Call for Papers, online: http://www.acpd-calt.org/wp-content/uploads/2011/04/TWAILCall.pdf (last visited January 23, 2014). For an overview of historic developments within TWAIL scholarship, see Gathii, James Thuo, “TWAIL: A Brief History of its Origins, its Decentralized Network, and a Tentative Bibliography” (2011) 3:1 Google Scholar Trade Law and Development 26. For a useful collection that covers a wide selection of TWAIL themes, see Anghie, Antony, Chimni, BS, Mickelson, Karin & Okafor, Obiora, eds, The Third World and International Order: Law, Politics and Globalization (Boston:)Martinus Nijhoff Press, 2004 Google Scholar).

6. An archived copy of the Towards a Radical International Law conference program is online: http://www.scribd.com/doc/52899858/TRIL-Programme-2011 (last visited January 23, 2014). For reflections on the debates that arose at the conference, see Bowring, Bill, “What is Radical in ‘Radical International Law’” (2011) 22 Google Scholar Finnish Yearbook of International Law 1 at 3. For a collection of articles that informed the conference, which was put together by one of the conference organizers, see Marx, Susan, ed, International Law on the Left: Re-Examining Marxist Legacies (Cambridge: Cambridge University Press, 2008 Google Scholar).

7. For perhaps the most thorough legal analysis of how trends in scholarship do not necessarily represent ‘new’ or ‘developed’ thinking, but are the product of the anxiety among younger scholars to escape the perceived or real influence of their predecessors, see Kennedy, David, “When Renewal Repeats: Thinking Against the Box” (2000) 32 Google Scholar New York University J Int’l Law and Policy 335.

8. See, e.g., Knox, Rob, “What is to be Done (With Critical Legal Theory)?” (2011) 22 Google Scholar Finnish Yearbook of International Law 32. For a more general argument to incorporate Marxist theories into international legal jurisprudence, see Miéville, China, “The Commodity Form Theory of International Law: An Introduction” (2004) 17:2 Google Scholar Leiden J Int’l L 271; see also Rasulov, Akbar, The Nameless Rapture of the Struggle: Towards a Marxist Class-Theoretic Approach to International Law (2010) 19 Google Scholar Finnish Yearbook of International Law 243.

9. For a call to a radicalization of TWAIL scholarship, see Bachand, Remi, “Critical Approaches and the Third World: Towards a Global and Radical Critique of International Law”, McGill Law School 2010 Google Scholar Working Paper, online: http://www.mcgill.ca/files/legal-theory-workshop/Bachand-3rd-world-critical-approaches.pdf (last visited January 23, 2014).

10. For the landmark writings in this tradition, see Kennedy, David, International Legal Structures (Baden-Baden: Nomos, 1987 Google Scholar); see also Kennedy, Duncan, A Critique of Adjudication (fin de siècle) (Cambridge: Harvard University Press, 1997)Google Scholar; Koskenniemi, Martti, From Apology to Utopia: The Structure of International Legal Argument, 3d ed (Cambridge: Cambridge University Press, 2009 Google Scholar); Unger, Roberto, Knowledge and Politics (New York: Free Press, 1976 Google Scholar).

11. For some of the key texts within this tradition, see Althusser, Louis, “Ideology and Ideological State Apparatuses” in Althusser, L, Lenin, and Philosophy and Other Essays (New York: Monthly Review Press, 1971) 85 at 121 Google Scholar; see also Godelier, Maurice, ed, Perspectives in Marxist Anthropology (New York: Cambridge University Press, 1977 Google Scholar); Poulantzas, Nicos, Political Power and Social Classes (New York: Verso Press, 1975 Google Scholar); Tilly, Charles, Coercion, Capital and European States: AD 990-1992 (Oxford: Blackwell, 1990 Google Scholar).

12. Badiou, Alain, Theory of the Subject (London: Continuum International Publishing Group, 2009) at 308–15, 325–28 Google Scholar. For a discussion of this theme in relation to international law, see Haskell, John, “The Strategies of Rupture in International Law: The Retrenchment of Conservative Politics and the Emancipatory Potential of the Impossible” (2012) 13 Google Scholar German Law Journal 468.

13. Anghie, Antony, “The Evolution of International Law: colonial and postcolonial realities” (2006) 27:5 Google Scholar Third World Quarterly 739 at 751-52; see also Anghie, Anthony, Imperialism, Sovereignty and the Making of International Law (Cambridge: Cambridge University Press, 2005 CrossRefGoogle Scholar) (providing an extended historical and theoretical analysis of the relationship between international law and imperialism that spans 400 years of Western European and American experience).

14. Mutua, Makau, “Savages, Victims and Saviors: The Metaphor of Human Rights” (2001) 42:1 Google Scholar Harv Int’l LJ 201 at 218. For a discussion of how the logic of international law operationalizes these unequal juxtapositions, see Berman, Nathaniel, “In the Wake of Empire” (1999) 14 Google Scholar American University International LR 1515 at 1538-39. For an exploration of this theme in relation to international humanitarian law, see Kennedy, David, The Dark Sides of Virtue: Reassessing International Humanitarianism (Princeton: Princeton University Press, 2004) at 3–36 Google Scholar (noting that “[a]ll governance projects have dark sides, costs, unacknowledged risks, unanticipated losers…We have a hard time focusing on costs in part because we do not think of ourselves as rulers. Other people govern, and it is our job to hold them responsible”). Ibid at xix.

15. See Gathii, James Thuo, “Imperialism, Colonialism and International Law” (2007) 54:4 Google Scholar Buffalo L Rev 1013.

16. For one of the more eloquent proponents of this argument, see Koskenniemi, Martti, The Gentle Civilizer of Nations: The Rise and Fall of International Law 1870-1960 (Cambridge: Cambridge University Press, 2001) at 502–09 CrossRefGoogle Scholar (calling for a return to a ‘culture of formalism’ in the practice of international law that can at once acknowledge competing political claims while remaining democratic and inclusive in orientation). The linkage of the ‘rule of law’ with ‘radical democracy’ is also a prominent theme within political philosophy; for example, see Laclau, Ernesto, Emancipation(s) (New York: Verso Press, 2006) at 98–100 Google Scholar.

17. von Hayek, Friedrich A, The Road to Serfdom, 50th anniversary ed (Chicago: University of Chicago Press, 1994) at 91 Google Scholar.

18. For a polemic against the political encroachment (under the rubric of policy making and technocracy) of international legal practice, see Koskenniemi, Martti, “The Police in the Temple: Order, Justice and the UN: A Dialectical View” (1995) 6 Google Scholar EJIL 325. For an example of the return to legal positivism as a prevalent trend in European scholarship, see D’Aspremont, Jean, “Hart and Postmodern Positivism in International Law” (2009) 113 Google Scholar RGDIP 635; see also Corten, Olivier, The Law Against War: The Prohibition on the Use of Force in Contemporary International Law (Oxford: Hart, 2010 Google Scholar).

19. On the domestic level, international lawyers from conservative and liberal perspectives advocate variations of this ‘rule of law’ theme. See International Covenant on Civil and Political Rights, 999 United Nations Treaty Series 171 (1966); see also Slaughter, Anne-Marie, The Idea That Is America: Keeping Faith With Our Values in a Dangerous World (New York: Basic Books, 2008) at 1–16 Google Scholar. The formal equality of sovereign states is also regularly held out within international law as its key distinction from politics, and which dates as far back as the Treaty of Westphalia. See Charter of the United Nations Article 2.1 (1945), online: www.unwebsite.com/charter; see also Anand, RP, “Sovereignty of States in International Law” in Anand, RP, International Law and the Developing Countries: Confrontation or Cooperation? (Boston: Martinus Nijhoff, 1987) 72 Google Scholar.

20. For an in depth historical exploration of these debates, see Hont, Istvan, Jealousy of Trade: International Competition and the Nation-State in Historical Perspective (Cambridge: Harvard University Press, 2010 Google Scholar).

21. For a discussion of the intellectual background and institutional dominance of neoliberalism, see Fine, Ben & Milonakis, Dimitris, From Political Economy to Economics: Method, The Social and the Historical in the Evolution of Economic Theory (New York: Routledge Press, 2008 Google Scholar); see also Harvey, David, A Brief History of Neoliberalism (Oxford: Oxford University Press, 2007 Google Scholar). For an analysis of how neoliberal policy was implemented within the field of law and development, especially in relation to Latin America, see Dezalay, Yves & Garth, Bryant, The Internationalization of Palace Wars: Lawyers, Economists, and the Contest to Transform Latin American States (Chicago: University of Chicago Press, 2002 CrossRefGoogle Scholar).

22. Gerber, David, “Constitutionalizing the Economy: German Neo-Liberalism, Competition Law and the ‘New’ Europe” (1994) 42 Google Scholar American Journal of Competition Law 25 at 32.

23. For a critical intellectual and social history of the Chicago School, see Hunt, EK, History of Economic Thought: A Critical Perspective (New York: ME Sharpe, 2002 Google Scholar). For a more sympathetic account, see Overtveldt, Johan Van, The Chicago School: How the University of Chicago Assembled the Thinkers Who Revolutionized Economics and Business (Evanston: Agate, 2009 Google Scholar).

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25. Amato, Giuliano, Antitrust and the Bounds of Power (Oxford: Hart, 1997) at 39–40 Google Scholar.

26. There is a rich tradition that recounts and debates the intellectual and legal implementation of this transition over the course of the 20th century. See Lang, Andrew, World Trade Law After Neoliberalism: Reimagining the Global Economic Order (Oxford: Oxford University Press, 2011 CrossRefGoogle Scholar); see also Trubek, David & Santos, Alvero, eds, The New Law and Economic Development: A Critical Appraisal (Cambridge: Cambridge University Press, 2007 Google Scholar).

27. For the first description of the term ‘embedded liberalism’, see Ruggie, John Gerard, “International Regimes, Transactions and Change: Embedded Liberalism in the Postwar Economic Order” (1982) 36:2 Google Scholar International Organization 379. For a rigorous institutional study of embedded liberalism, see Blyth, Mark, Great Transformations: Economic Ideas and Institutional Change in the 20th Century (Cambridge: Cambridge University Press, 2002 CrossRefGoogle Scholar). For a historical-intellectual account of the rise and fall of embedded liberalism in relation to law and development on the global level, see Kennedy, David, “The ‘Rule of Law’: Political Choices and Development Common Sense” in Trubek, & Santos, supra note 26 at 95 Google Scholar. For a critique of the proposed distinction between neoliberalism and socio-economic rights, see Wills, Joe, The World Turned Upside Down? Neo-Liberalism, Socioeconomic Rights, and Hegemony (2014) 27 Google Scholar Leiden J Int’l Law 11.

28. Gros Espiell, H, “The Evolving Concept of Human Rights: Western, Socialist and Third World Approaches” in Ramcharan, BG, ed, Human Rights: Thirty Years After the Universal Declaration (Leiden: Brill, 1979) 41 at 51 Google Scholar. These ideas would find an institutional home with the establishment of the New International Economic Order (NIEO) in the 1970s. See Declaration for the Establishment of a New International Economic Order, United Nations General Assembly document A/RES/S-6/3201 (1974), online: http://www.un-documents.net/s6r3201.htm (last visited January 23, 2014). For literature on the intellectual and social history of the NIEO, see Bhagwati, Jagdish, ed, The New International Economic Order: The North-South Debate (Boston: MIT Press, 1977 Google Scholar); see also Rajagopal, Balakrishnan, International Law From Below: Development, Social Movements and the Third World (Cambridge: Cambridge University Press, 2003 CrossRefGoogle Scholar).

29. See Lang, , supra note 26 at 1–60 Google Scholar.

30. Ibid at 27-38.

31. Ibid at 1-60.

32. For discussions of the rise of human rights (and more generally, socio-political objectives) within the context of law and development and international trade, see Chimni, BS1, “Third World Approaches to International Law: A Manifesto” (2006) 8 Google Scholar International Community Law Review 3 at 11; see also Barreto, Jose-Manuel, ed, Human Rights From a Third World Perspective: Critique, History and International Law (Newcastle upon Tyne: Cambridge Scholars, 2013 Google Scholar); Devereux, Stephen, Sen’s Entitlement Approach: Critiques and Counter-critiques (2001) 29:3 Google Scholar Oxford Development Studies 245; Gathii, James Thuo, Introduction: GATS and Human Rights (2011 Google Scholar) Proceedings of the 104th Annual Meeting of the American Society of International Law 127; Gathii, James Thuo, “Defining the Relationship Between Human Rights and Corruption” (2009) 31 University of Pennsylvania J Int’l Law 125 Google Scholar; Maassarani, Tarek, “WTO-GATT, Economic Growth, and the Human Rights Trade-Off” (2005) 28:2 Environs Envtl L & Pol’y J 269 Google Scholar; Paul, Joel, “Do International Trade Institutions Contribute to Economic Growth and Development” (2003) 44 Virginia J Int’l Law 285 Google Scholar; Santos, Alvaro, “The World Bank’s Uses of the ‘Rule of Law’ Promise in Economic Development” in Trubek, & Santos, supra note 26, at 245 Google Scholar.

33. Mutua, , supra note 1 at 31 Google Scholar.

34. Fakhri, Michael, “Introduction: Questioning TWAIL’s Agenda” (2012) 14:1 Google Scholar Oregon Rev Int’l Law 3; see also Anghie, supra note 13 at 11-12 (defining 20th century imperialism as “the practices of powerful Western states in the period following the establishment of the United Nations … [which] witnessed the end of formal colonialism, but the continuation, consolidations and elaboration of imperialism”); Chimni, BS, “Capitalism, Imperialism, and International Law in the Twenty-First Century” (2012) 14 Google Scholar Oregon Rev Int’l Law 17; Nkrumah, Kwame, Neo-Colonialism, , The Last Stage of Imperialism (London: Thomas Nelson & Sons, 1965 Google Scholar).

35. Gathii, James Thuo, “Neoliberalism, Colonialism, and International Governance: Decentering the International Law of Governmental Legitimacy” (2000) 98 Google Scholar Mich L Rev 1996 at 2025 (quoting Kerry Rittich); see also Rittich, Kerry, Recharacterizing Restructuring: Gender and Distribution in the Legal Structures of Market Reform (SJD Thesis, on file with Harvard Law School, 1998) [unpublished] at 258 Google Scholar.

36. In this way, TWAIL scholars follow directly in the tradition of the first generation of third world ‘dependency’-oriented scholars writing in the aftermath of decolonization, such as Bedjaoui, who saw the new international legal order emerging as “the new form of slavery of modern times” whereby it “may in principle no longer have been serving political colonization, it did not cease for all that to be a means of economic domination and an excuse for it. In actual fact, it modified only the form, not the substance of domination… [now only] more subtly introduced into the legal rules governing the economic relations between developed and developing countries.” Bedjaoui, Mohammed, Towards a New International Economic Order (New Jersey: Holmes and Meier, 1979) at 36, 59–60 Google Scholar. For an overview of first generation third world legal scholars, see Mickelson, Karin, “Rhetoric and Rage: Third World Voices in International Legal Discourse” (1997) 16:2 Google Scholar Wisconsin International LJ 353.

37. For a historical account of how European political agendas were carried out in economic policies in former colonized countries in the interwar period through the implementation of legal structures, See Anghie, Antony, “Colonialism and the Birth of International Institutions: Sovereignty, Economy and the Mandate System of the League of Nations” (2001) 34 Google Scholar NYU J Int’l L & Pol 513.

38. This argument surfaces in a variety of contexts as a central theme in TWAIL scholarship. See, e.g., Pahuja, Sundhya, Decolonizing International Law: Development, Economic Growth and the Politics of Universality (Cambridge: Cambridge University Press, 2011) at 86, 96, and 134 CrossRefGoogle Scholar (explaining how the internationalization of the market led to a hegemonic depoliticized set of economic prescriptions that pressured non-industrialized states to succumb to powerful foreign private and public interventions); see also Gathii, James Thuo, “Third World Approaches to International Economic Governance” in Falk, Richard, Rajagopal, Balakrishnan & Stevens, Jacqueline, eds, International Law and the Third World: Reshaping Justice (New York: Routledge-Cavendish Press, 2008) 255 Google Scholar; Okafor, Obiora C, “Newness, Imperialism, and International Legal Reform In Our Time: A TWAIL Perspective” (2005) 43:1 Google Scholar Osgoode Hall LJ 171 (discussing how international law operates to simultaneously instrumentalize and disavow economic and political agendas by great powers and financial elite); Rajagopal, Balakrishnan, “International Law and the Development Encounter: Violence and Resistance at the Margins” (1999 Google Scholar) Proceedings of the 93d Annual Meeting of the American Society of International Law 16 at 20-21, 25 (arguing that imperialism transitioned from political to economic forms of coercion through depoliticized market institutions). For a more general discussion of economic development from a ‘third world’ perspective, see Marasinghe, L, “Third World Jurisprudence of the Twenty-First Century” in Anghie, & Sturgess, , eds, Legal Visions of the 21st Century: Essays in Honour of Judge Christopher Weeramantry (Boston: Martinus Nijhoff, 1998) 49 at 55 Google Scholar.

39. Chimni, BS, supra note 32 at 56 Google Scholar. For accounts of how third world movements were side-lined, see James, P & Steve, V, “The Decline of Revolutionary Politics: Capitalist Detour and the Return of Socialism” (1994) 24 Google Scholar Journal of Contemporary Asia 1; see also Amin, Samir, “The Social Movements in the Periphery: An End to National Liberation” in Amin, Samir, Arrighi, Giovanni, Frank, Andre Gunder, & Wallerstein, Immanuel, Transforming the Revolution: Social Movements and the World System (New York: Monthly Review Press, 1990) 96 Google Scholar; Walde, Thomas, “A Requiem for the ‘New International Economic Order’: The Rise and Fall of Paradigms in International Economic Law and a Post-Timeless Significance”, Centre for Energy, Petroleum and Mineral Law and Policy Reference Resource Collection, Thomas Walde Collection (1995 Google Scholar), online: http://www.dundee.ac.uk/cepmlp/gateway/index.php?news=32120 (last visited January 23, 2014).

40. Aoki, Keith, “Space Invaders: Critical Geography, the ‘Third World’ in International Law and Critical Race Theory” (2000) 45 Google Scholar Vill L Rev 913 at 925; see also Haskell, John, “Taking Risks Ethically” (2010) 22 Google Scholar Fl Int’l LJ 285 (discussing the dynamic of the ‘white man’s burden’ in relation to progressive liberal humanitarian interventions).

41. Sunter, Andrew, “TWAIL as Naturalized Epistemological Inquiry” (2007) 20:2 Google Scholar Can JL & Jur 475 at 485 (discussing how the indeterminacy built into liberalism allows for subjective choices between values and judgments within the logic of international law that privileges powerful actors); see also Lim, CL, “Neither Sheep nor Peacocks: T.O. Elias and Post-colonial International Law” (2008) 21:2 Google Scholar Leiden J Int’l L 295 at 306-315 (noting that NIEO lawyers under-theorized the function of law).

42. See Chimni, BS, “Towards a Radical Third World Approach to Contemporary International Law” (2002) 5 Google Scholar International Centre for Comparative Law and Politics Review 14 at 17.

43. Gathii, , supra note 38 at 264 Google Scholar. For a broader discussion of the development of this line of thinking about the function of international law within Western jurisprudence, see Miéville, China, Between Equal Rights: A Marxist Theory of International Law (Chicago: Haymarket Press, 2006) 1–74 Google Scholar.

44. Miéville, , supra note 43 at 117–52 Google Scholar. The American Legal Realist and Critical Legal Studies movements within the liberal tradition of jurisprudence have articulated similar arguments. See, e.g., Cohen, Morris, “Property and Sovereignty” (1927-1928) 13 Google Scholar Cornell Law Quarterly 8.

45. See, e.g., Gathii, , supra note 3 at 197 Google Scholar (noting that the focus on the ‘nation-state’ hides diverse internal fractures); see also Chimni, , supra note 32 at 17–24 Google Scholar (arguing that ‘national interests’ obscures social resistance and alternative proposals from marginalized populations); Mickelson, , supra note 36 at 357 Google Scholar (arguing that global regulation requires accommodating consideration of actors other than states); Rajagopal, , “International Law and Social Movements: Challenges of Theorizing Resistance” (2003) 41 Google Scholar Colum J Transnat’l L 397 at 410-16 (calling on legal scholars to look beyond state bureaucracies to the everyday practices of social conflict).

46. See, e.g., Anghie, , supra note 13 at 4 Google Scholar (discussing how international law was constituted by creating a ‘dynamic of difference’ between cultures that legitimated European hegemony over colonized populations abroad).

47. Ibid; see also Berman, , supra note 14 at 1538–39 Google Scholar. For a more general discussion about how ‘civilization’ functioned to legitimate the colonial experience through legal reform, see Gong, Gerrit, The Standard of ‘Civilization’ in International Society (Oxford: Oxford University Press, 1984 Google Scholar); see also Mantena, Karina, Alibis of Empire: Henry Maine and the Ends of Liberal Imperialism (Princeton: Princeton University Press, 2010 Google Scholar); Parfitt, Rose, “Sovereign Equality and Moral Disagreement: Premises of a Pluralist International Legal Order” (2012) 23 Google Scholar EJIL 1175.

48. Mutua, Makau, “Why Redraw the Map of Africa: A Moral and Legal Inquiry” (1994-1995) 16 Google Scholar Mich J Int’l L1113 at 1151.

49. Bhatia, Amar, “The South of the North: Building on Critical Approaches to International Law with Lessons from the Fourth World” (2012) 14 Google Scholar Oregon Rev Int’l Law 131 at 146.

50. Though this is a central theme explored in a variety of contexts by TWAIL scholars against more apologist narratives within international legal scholarship, the premise that international law was constituted due to necessities of colonial exploitation by European states is also accepted and explored at length by more conservative-oriented scholars. See, e.g., Schmitt, Carl, The Nomos of the Earth in the International Law of Jus Publicum Europaeum (New York: Telos Press, 2006 Google Scholar).

51. Mutua, , supra note 48 at 1134 Google Scholar.

52. Ibid at 1144-46. For a study of the uti possidetis juris doctrine, see Craven, Matthew, The Decolonization of International Law: State Succession and the Law of Treaties (Oxford: Oxford University Press, 2010 Google Scholar); see also Ratner, Stephen, “Drawing a Better Line: Uti Possidetis and the Borders of New States” (1996) 90 Google Scholar AJIL 590; Shaw, Malcolm, “The Heritage of States: The Principle of Uti Possidetis Juris Today” (1996) 67 Google Scholar British Yearbook of International Law 75; Bernardez, S Torres, “The ‘Uti Possidetis Juris’ Principle in Historical Perspective” in Ginther, K, ed, Festschrift für Karl Zemanek (Berlin: Duncker & Humblot, 1994) 417 Google Scholar.

53. Nesiah, Vasuki, “Placing International Law: White Spaces on a Map” (2003) 16 Google Scholar Leiden J Int’l L 1 at 27.

54. Rajagopal, , supra note 28 at 79 Google Scholar. In this respect, Rajagopal differs from many of his TWAIL colleagues; whereas many scholars within TWAIL call for non-Western European people to attain a lifestyle that requires equal access to global resources and the continued transnational pace of economic growth and production, Rajagopal warns that ecological (as well as political) limits will likely not sustain the organization of production networks that are required for today’s cosmopolitan lifestyles. See also Russi, Luigi & Mattei, Ugo, “The Evil Technology Hypothesis: A Deep Ecological Reading of International Law” (2012 Google Scholar) Cardozo Law Review De Novo 263; Sachs, Wolfgang, ed, The Development Dictionary: A Guide to Knowledge as Power (London: Zed Books, 1991 Google Scholar).

55. See, e.g., Gathii, James Thuo, “Neo-Liberalism, Colonialism and International Governance: De-Centering the International Law of Governmental Legitimacy” (2000) 98 Google Scholar Mich L Rev 1996; see also Gathii, James Thuo, “A Critical Appraisal of the International Legal Tradition of Taslim Olawale Elias” (2008) 21 Google Scholar Leiden J Int’l Law 318; Umozurike, UO, International Law and Colonialism in Africa (Enugu: Nwamife Publishers, 1979 Google Scholar); Rajagopal, supra note 28 at 32, 40, and 79 (noting that since the NIEO, subaltern resistance movements have rarely challenged the notion of ‘development’ itself).

56. Chimni, , supra note 32 at 13 Google Scholar; see also Chimni, BS, “International Institutions Today: An Imperial Global State in the Making” (2004) 15:1 Google Scholar EJIL 1.

57. Rajagopal, , supra note 45 at 410–412 Google Scholar; see also Rajagopal, Balakrishnan, “From Resistance to Renewal: The Third World, Social Movements and the Expansion of International Institutions” (2000) 41:2 Google Scholar Harvard International LJ 529 at 530-37.

58. For a statement of this goal, see Escobar, Arturo, Territories of Difference: Place, Movements, Life, Redes (Durham: Duke University Press, 2008) at 310–11 CrossRefGoogle Scholar; see also Okafor, , supra note 38 at 190 Google Scholar (hoping that TWAIL can help “foster this process of deep ideational change and epistemic transformation” towards “a much more equal, fair, and just world”).

59. Calling for broader application of TWAIL to accommodate any form of oppression, see Chimni, supra note 34 at 19 (decentering TWAIL from geographic preoccupations); see also Engle, Eric, “The Failure of the Nation State and the New International Economic Order” (2003) 16 Google Scholar St Thomas L Rev 187 (arguing for the necessity of using scholarship to help forge ethno-linguistic, multinational state alliances); Rajagopal, , supra note 38 at 27 Google Scholar (calling for TWAIL to embrace diverse identity groups beyond typical colonial populations).

60. Eslava, & Pahuja, , supra note 2 at 12 Google Scholar.

61. Mutua, Makau, “The Complexity of Universalism in Human Rights” in Sajo, Andras, ed, Human Rights with Modesty: The Problem of Universalism (Boston: Martinus Nijhoff, 2004) 51 at 58 CrossRefGoogle Scholar.

62. Anghie, , supra note 13 at 320 Google Scholar.

63. Mutua, , supra note 61 at 51 Google Scholar.

64. Eslava, & Pahuja, , “Between Resistance and Reform: TWAIL and the Universality of International Law” (2011) 3:1 Google Scholar Trade, Law and Development 103 at 126.

65. Rajagopal, , supra note 28 at 293 Google Scholar; see also Buchanan, Ruth, “Writing Resistance Into International Law” (2008) 10 Google Scholar International Community LR 1 at 3-7.

66. Chimni, , supra note 34 at 44 Google Scholar.

67. Mutua, , supra note 61 at 56 Google Scholar. This idea of a common, minimum standard of agreement between cultures seems to fit comfortably with Western liberal theory (e.g., Rawls). This is particularly striking, not only because it is offered as a contrast to Eurocentric thought, but because it is relatively uncritical to this solution, unlike many Western liberals even associated with calling for a minimum consensus. See, e.g., Rawls, John, A Theory of Justice (Cambridge: Harvard University Press, 1971) at 8–9 Google Scholar (advocating a ‘social minimum’ standard of justice, but noting a number of its shortcomings for minority groups to achieve equality in the long-run).

68. Mutua, , supra note 61 at 56 Google Scholar.

69. Gathii, , supra note 35 at 2015 Google Scholar.

70. Eslava, & Pahuja, , supra note 63 at 124 Google Scholar.

71. Mutua, , supra note 1 at 37 Google Scholar.

72. See, e.g., Baxi, Upendra, “What May the ‘Third World’ Expect from International Law Google Scholar” in Falk, , Rajagopal, & Stevens, , eds, supra note 38 at 10 Google Scholar (positing that TWAIL’s production of alternative ‘histories of mentalities’ is ‘based on the insistence of the recognition of radical cultural and civilizational plurality and diversity’).

73. See, e.g., Mutua, Makau, “The Transformation of Africa: A Critique of Rights Discourse” in Isa, Felipe Gomez & de Feyter, Koen, eds, Human Rights and Diversity: International Human Rights Law in a Global Context (Bilbao: University of Deusto Press, 2009) 899 at 899–901 Google Scholar (calling for subaltern, communal norms to organize social and economic domestic arrangements, which could in turn influence global management of production, distribution, and rights).

74. See Falk, Richard, “Preface” in Chimni, BS, International Law and World Order: A Critique of Contemporary Approaches (New Delhi: Sage, 1993) 9 Google Scholar.

75. There is a rich tradition of anti-humanist work within various strands of anthropological, historical, philosophical, psychological, and sociological scholarship that critically addresses the shortcomings of equating ‘subjective’ or ‘on the ground’ studies with more “concrete” or “authentic” explanations. Most often, it is identified with ‘structuralism’, though the term itself varies wildly between socio-historical and philosophical inquiry and more linguistic and discursive analysis. I will be addressing this literature, particularly as it has been expressed in socio-historical and philosophical scholarship, throughout this section.

76. Foucault, Michel, Society Must Be Defended: Lectures at the College de France, 1975-1976 (New York: Picador, 2003) at 194 Google Scholar; see also Edward, Said, Orientalism (New York: Vintage Books, 1979 Google Scholar). For a discussion about how the ‘masses’ were formulated as the source of inspiration to renew and legitimacy to regulate for the discipline in the context of the post-World War 1 era, See Berman, Nathaniel, “But the Alternative is Despair: European Nationalism and the Modernist Renewal of International Law” (1993) 106 Google Scholar Harv L Rev 1792. The focus on European populations in the development of international legal institutions and doctrines to structure inequalities, though not addressed by Berman, seems to suggest that the colonial encounter emphasized within historical studies of TWAIL was itself part of a broader system of distribution and production. In other words, the dynamic of European versus non-European was only one of several sites of conflict, which does not explain the underlying logic or structure of the historical turn into the 20th century. For a brief exploration of this theme that compares how international law developed not only out of the colonial encounter but in relation to internal European struggles between various economic strata, see Haskell, John D, “Divine Immanence: The Evangelical Foundations of Modern Anglo-American Approaches to International Law” (2012) 11:3 Google Scholar Chinese J Int’l Law 429 at 465-67.

77. Mutua, , supra note 73 at 901 Google Scholar (expanding on his concept of the “African garden”); see also Bhatia, , supra note 49 at 146 Google Scholar.

78. Ibid. See also De Sousa Santos, Boaventura, Towards a New Common Sense: Law, Science and Politics in the Paradigmatic Transition (Cambridge: Cambridge University Press, 1995) at 365–73 Google Scholar. More generally, as demonstrated throughout this article, the notion that there is a ‘local’, more ‘authentic’ reality of third world peoples that may be harnessed by international lawyers to reshape the architecture of global regulation is a reoccurring and underlying motif throughout TWAIL scholarship.

79. A significant number of Chimni’s articles taking up these themes have been addressed through-out this article, but for an overview of some of these concerns, see, e.g., Chimni, , supra note 34 Google Scholar.

80. Chimni, BS, “Developing Countries and the GATT/WTO System: Some Reflections on the Idea of Free Trade and Doha Round Trade Negotiations” in Thomas, Chantal & Trachtman, Joel P, eds, Developing Countries in the WTO Legal System (Oxford: Oxford University Press, 2009) 21 at 24–28, 43 Google Scholar.

81. For a discussion of how more neoliberal ‘shock therapists’ and progressive ‘gradualists’ relied and operated on very similar set of assumptions and policy goals in relation to non-West-ern economies, see Haskell, John D & Mamlyuk, Boris, “Capitalism, Communism … And Colonialism? Revisiting ‘Transitology’ as the Ideology of Informal Empire” (2009) 9:2 Google Scholar Global Jurist 1 at 17-29.

82. See Chimni, , supra note 32 at 19–22 Google Scholar. For a historical study of how emancipatory movements within Western Europe and America were, in their times, labeled fanatical and relied on a militant belief in their cause, see Toscano, Alberto, Fanaticism: On the Uses of an Idea (London: Verso Press, 2010 Google Scholar). More generally, beyond the question of whether violence is ever neces-sary, the difficulty of deciding when an act of violence is defensive or offensive as a means to determine its legitimacy is largely a question of perspective and rhetoric. For a discussion of these difficulties, see Berman, Nathaniel, “Privileging Combat? Contemporary Conflict and the Legal Construction of War” (2004) 43:1 Google Scholar Columbia Journal of Transnational Law 1; see also Gearty, Conor, “Terrorism and Morality” (2003 Google Scholar) European HRL Rev 377.

83. For an insightful discussion of progress narratives within international law, see Skouteris, Thomas, “Engaging History in International Law” in Kennedy, David & María Beneyto, José, eds, New Approaches to International Law: The European and American Experiences (The Hague: TMC Asser Press, 2012) 99 CrossRefGoogle Scholar; see also Haskell, John D, “The Turn to History in International Legal Scholarship” in D’Aspremont, Jean & Nollkaemper, Andre, eds, International Law as a Profession [forthcoming, 2014 Google Scholar] (discussing the ‘progress’ narrative that is often incorporated into the turn from great state politics and international relations to an emphasis on biography and cultural practices).

84. Maurice1Godelier, , In and Out of the West: Reconstructing Anthropology (Charlottesville: University of Virginia Press, 2009) at 9 Google Scholar.

85. For a critique of anthropology in related to global development policy in a historical context, See Pathy, Jaganath, “Imperialism, Anthropology and the Third World” (1981) 16:14 Google Scholar Economic and Political Weekly 623; see also Gough, Kathleen, “Anthropology and Imperialism”, The Monthly Review 12 (April, 1968 Google Scholar), available at http://web.mnstate.edu/robertsb/445/Anthropology%20and%20Imperialism%20Gough.pdf (last visited January 23, 2014).

86. See, e.g., Anghie, , supra note 13 at 739–42 Google Scholar (describing the constitutive dynamic of the historical development of international law as the struggle between European and non-European cultures in the context of colonialism).

87. See, e.g., Rajagopal, , supra note 57 at 536–37 Google Scholar (arguing for TWAIL scholars to focus on the diversity of form of global inequality).

88. For a general discussion of the affinity between TWAIL and feminist approaches to international law, see Klabbers, Jan, International Law 13-15 (Cambridge: Cambridge University Press, 2013) at 13–15 CrossRefGoogle Scholar. An example of a TWAIL approach focused on the issue of women subjects, see Ruiz-Austria, Carolina, “Profiteers of the Bump and Grind Contest in Commodification” (2012) 14:1 Google Scholar Oregon Rev Int’l Law 203.

89. This tradition has by and large remained absent from international legal theory. For an over-view of the history of some of these debates, especially in the field of socio-economic history, see Wood, Ellen, The Origins of Capitalism (New York: Monthly Review Press, 1999) at 28–35 Google Scholar; see also Brenner, Robert, “Agrarian class structure and economic development in pre-industrial Europe” (1976) 70 Google Scholar Past and Present 30; Dobbs, Maurice, Studies in the Development of Capitalism (New York: International, 1964 Google Scholar); Sweezy, Paul, The Transition from Feudalism to Capitalism (London: New Left Books, 1976 Google Scholar).

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98. This is especially problematic when so many of the colonial struggles of the 50s and 60s were led by local social movements significantly influenced by Marxist thought in their identification, mobilization and vision. See, e.g., Fanon, Frantz, Black Skin, White Masks (New York: Grove Press, 1967 Google Scholar). For a brief but useful description of how Fanon engaged Marxist theory, see Crowell, Jacqueline, “Marxism and Frantz Fanon’s Theory of Colonial Identity: Parallels between Racial and Commodity-Based Fetishism”, Scientific Terrapin (Fall, 2011 Google Scholar), online: http://www.scientificterrapin.umd.edu/Fall2011/articles/Marxism.php. To read this influence out of the colonial legacy is not only counter-productive towards a more interdisciplinary understanding of the debates concerning the development of global capitalism, but more importantly from a post-colonial perspective, actually does violence to the actual lives and stories of colonized people.

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103. For a theoretical and historical-grounded discussion of how law develops specifically out of particular modes of sustenance, see Chase, Anthony, HLaw and History: The Evolution of the American Legal System (New York: New Press, 1999 Google Scholar).

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105. ‘History really is a “process without a Subject of Goal(s)” … [T]here can be no Subject as an Absolute Centre, as a Radical origin, as a Unique Cause. Nor can one, in order to get out of the problem, rely on a category like that of the “ex-Centration of the Essence”, since it is an illusory compromise which—using a fraudulently “radical” term, one whose root is perfectly conformist (ex-centration)—safeguards the umbilical cord between Essence and Centre and therefore remains a prisoner of idealist philosophy… The “subject-form” is actually the form of historical existence … considered as agents, human individuals are not “free” and “constitutive” subjects in the philosophical sense of these terms. They work in and through the determinations of the forms of historical existence of the social relations of production and reproduction…. These agents can only be agents if they are subjects.’ Althusser, Louis, “Remark on the Category: Process without a Subject or Goals Google Scholar” in Althusser, , supra note 102 at 95–99 Google Scholar. Online: http://www.marx2mao.com/Other/ESC76i.html#s1c.

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107. “You can stay indefinitely at the frontier line, ceaselessly repeating concrete! concrete! real! real! This is what Feuerbach did, and Feuerbach, too, spoke of society and State, and never stopped talking about real man, man with needs, concrete man, who is merely the ensemble of his developed human needs, of politics and industry.” Althusser, , supra note 104 at 211 Google Scholar. While Althusser focused on ‘society’, other structural Marxists would focus on other organizational frameworks, such as state bureaucracies. See, e.g., Poulantzas, , supra note 11 Google Scholar.

108. For a critique of this politics of ‘ethics’ and its corresponding sensibility of ‘tolerance’, see Badiou, Alain, Ethics: An Essay on the Understanding of Evil (London: Verso Press, 2001) at 109 Google Scholar. Anghie, , supra note 13 at 316 Google Scholar.

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116. Wallerstein, Immanuel, “The Construction of Peoplehood: Racism, Nationalism, Ethnicity” in Balibar, Etienne & Wallerstein, Immanuel, Race, Nation, Class: Ambiguous Identities (London: Verso Press, 1991) at 71–80 Google Scholar.

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118. Berger, Peter & Luckmann, Thomas, The Social Construction of Reality: A Treatise in the Sociology of Knowledge (New York: Anchor Press, 1966) at 186–87 Google Scholar.

119. For a discussion of TWAIL as an academic community built around a shared sensibility towards personal engagement and scholarly concerns, see Fakhri, Michael, “Questioning TWAIL’s Agenda” (2012) 14(1) Oregon Rev Int’l Law 1 Google Scholar.