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TWAIL Coordinates
criticallegalthinking.com/2019/04/02/twail-coordinates

Luis Eslava April 2, 2019

Also available in Spanish, Portuguese, Arabic and Sinhala translation

Street in San Juan, Puerto Rico, 1941. FSA-Office of War Information Collection. Library of Congress,
Washington, D.C., USA.

(Note on the photograph1)

Third World Approaches to International Law, best known by its acronym TWAIL, is a
dynamic, intentionally open-ended and decentralised network of international law
scholars who think about and with the Third World. Within the universe of TWAIL, the
‘Third World’ refers to that expansive and usually subordinated socio-political geography
that, during the mid-twentieth century, came to be seen as ‘non-aligned’ – belonging
neither to the ‘free’ nor to the ‘communist’ world. Today the Third World is more often
referred to, however, as the ‘developing world’, the ‘post-colonial world’, or the (Global)
South. In our intensely unequal, racialised, gendered, environmentally precarious global
order, confronting a proliferation of Souths in the North and Norths in the South, this
socio-political geography can perhaps be better characterised as ‘most of the world’.

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A TWAIL Spring

The rubric of TWAIL was born in spring 1996, when a group of Harvard Law School
graduate students came together to discuss, as James Gathii has written, ‘whether it was
feasible to have a third world approach to international law and what the main concerns of
such an approach might be.’ That initial set of discussions, and the conversations that
quickly followed from them, included students and scholars from various parts of the Third
World and fellow travellers from the North.

The first TWAIL meeting was held in March 1997 at Harvard University. The primary
objective – one that has marked the work of TWAILers since then – was to cross-examine
international law’s assumed neutrality and universality in light of its longstanding
association with imperialism, both historical and ongoing. A parallel purpose was to
delineate new emancipatory agendas – new decolonisation agendas – for a rapidly
globalizing world. As B.S. Chimni later put it in his TWAIL Manifesto, ‘the threat of
recolonisation’ has continued to haunt the Third World. Facing this reality, a new set of
tools had to be developed to ‘address the material and ethical concerns of third world
peoples.’

In their commitment to interrogating the relationship between international law and the
conditions of the Third World, this initial group of TWAILers were clear about the
importance of honouring an already well-established lineage of international lawyers,
political actors, and intellectuals from the South who had long grappled with the
vicissitudes and complexities of the international legal order. In particular, they had in
mind those whose roles during the decolonisation period were critical for bringing about
the end of ‘formal’ imperialism.

To make sense of this long South-oriented international law tradition, Antony Anghie and
Chimni coined the terms ‘TWAIL I’ and ‘TWAIL II’: the former to refer to the scholarship
produced by that first generation of post-colonial international legal actors; the latter to
scholarship that ‘has broadly followed the TWAIL I tradition and elaborated upon it, while,
inevitably, departing from it in significant ways.’

In charting this retrospective chronology, Anghie and Chimni stressed the commitment to
intergenerational training and learning that has been so fundamental to TWAIL. At the
same time, they were able to highlight the pioneering work of contemporary TWAIL (II)
scholars in questioning the conditions of the South from a more global and intersectional
perspective. The job of TWAIL I was to wrestle with formal imperialism at home. Our
struggle – 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’.2

The World of TWAIL

In the years since this initial set of conversations, TWAIL scholarship has grown
enormously in terms of both the themes and the geographical and historical scope of the
research conducted by its members.

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Revising the general theory of international law and unveiling its global history;
questioning the functioning of the international order and the role of international lawyers
within it; re-theorising the state and revising current discourses of constitutional order,
security and transitional justice; cross-examining the fields of international human rights
law, international economic law, international environmental law, international
humanitarian law and international criminal law; highlighting the importance of social
movements, Indigenous peoples, and migrants in the international order – all these and
many other topics have come to the attention of TWAIL scholars in recent years.3
Attention to the cross-operation of race, gender, and class, as well as studying past and
present forms of decolonisation and resistance have marked this work throughout.4

That first TWAIL meeting in 1997 also inaugurated a line of international conferences that
have served as meeting points at which to share research outcomes, consolidate old and
new friendships, and assess the prospects for reforming international law’s pedagogy and
practice. They have taken place at Osgoode Hall Law School (2001), Albany Law School
(2007), the University of British Columbia (2008), Université Paris 1 Panthéon-Sorbonne
(2010), Oregon Law School (2011), the American University in Cairo (2015), the
University of Colombo (2017), and, most recently, at the National University of Singapore
(2018).

Today, 20+ years after the first TWAIL meeting, TWAIL occupies a central place in
debates about the past and present of the international legal order. Indeed, it is no
overestimation to say that TWAIL’s insights and the work produced under its banner have
altered profoundly settled teleological conceptualisations of international law as being
innately progressive and always on the side of social, economic, and environmental
justice. Most of all, Eurocentric accounts of international law can no longer run unchecked
thanks to the work of TWAILers.

TWAILers, fellow travellers, and a new generation of students and practitioners of

international law now have a large and growing body of literature behind them that can be
mobilised to question those global asymmetries of power that have long accompanied –
that have not been external to – international law. Thanks to TWAIL, they can also point
at those other uses of international law and at those other worlds that the South and its
friends have aimed to put into practice all along.5

TWAIL at the ICJ

A recent confirmation of TWAIL’s growing impact on international law came in the form of
Judge Cançado Trindade’s reference to the the edited volume Bandung, Global History
and International Law (CUP 2017) in his Separate Opinion to the International Court of
Justice (ICJ)’s recent Chagos Advisory Opinion. Debates about self-determination and its
role in the modern international legal order had, of course, previously been the subject of
detailed and insightful judgments by several jurists from the Third World – some of those
TWAIL I figures identified by Anghie and Chimni – such as Mohammed Bedjaoui,
Christopher Weeramantry and Fouad Ammoun.

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The Bandung volume brought together more than 40 scholars associated with TWAIL and
close colleagues to reflect critically on the 60th anniversary of the Bandung Conference.
Held in 1955 in Bandung, Indonesia with the participation of 29 African and Asian
countries, the Bandung Conference condemned ‘colonialism in all its manifestations’ as
‘an evil which should speedily be brought to an end’. The Bandung collection was cited by
Judge Trindade precisely to stress the continued relevance of this call to our supposedly
post-colonial global legal order. Almost unanimously, the ICJ found that the Chagos
Islands had to be returned to Mauritius ‘as rapidly as possible’ by the United Kingdom,
one of its former colonial masters. According to the ICJ, the 1968 decolonisation of
Mauritius had not been lawfully completed.6

As the Chagos Advisory Opinion demonstrates, and as the Bandung volume insists,
colonialism has not gone away. It is still very much part of the international order, yet
mutating into new forms each day. In this regard, TWAIL’s re-entrance into the chambers
of the ICJ speaks strongly of TWAIL’s ongoing relevance even in the context of the ‘world
court’, international law’s central institution. Given TWAIL’s insights into international law’s
original and ongoing implication in the imperial arrangements that are continually being
redeployed around us, however, clearly its work cannot be confined to the courtroom.
Academic and activist work, interrupting the global legal and institutional order whenever
possible, are always part and parcel of any TWAIL praxis.

Five TWAIL Coordinates

In the last part of this express tour of TWAIL, let me outline five ‘coordinates’ that
characterise this shared body of thought and practice. I use the term ‘coordinates’ rather
than ‘principles’ because TWAIL scholars have been reticent to describe their work
according to a set of static or pre-packaged features, or to coalesce around a strict canon
or institutional formation. Instead, energies have focused on keeping TWAIL open to new
generations of scholars and activists, to new conceptual and methodological innovations,
and, in particular, to the exploration of new ways of creating solidarity in our always
challenging international order.

1. History Matters

One approach that brings TWAILers together is an appreciation of history and

historiography.7 TWAIL scholarship often takes several steps back from the present to
gain an understanding of how international norms and institutional practices have
emerged and developed through specific historical conjunctures. The ‘discovery’ of the
‘Americas’; the expansion of European imperialism over Asia and Africa; the two World
Wars; the ‘mandates’ and ‘trusteeship’ systems; the decolonisation moment; the oil and
debt crises of the 1970s; the eruption of neoliberalism in the 1980s and 1990s, and the
long ‘war on terror’ are only some of these conjunctures – together with non-European
imperialisms (from the Chinese Empire to the Republic of Liberia) and countless
moments of post-colonial violence by post-colonial states.8

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Paying attention to these varied histories has allowed TWAILers to trace the co-
constitution of international law and imperialism, and more generally to challenge
international law’s complacent linearity and unidimensionality by showing the skewed
power dynamics that criss-cross the international legal order. At the same time,
questioning the assumed history of international law has allowed TWAILers to excavate
alternative international normative projects and movements that have had a South
orientation: from Bandung, as mentioned above, to the right of peoples and nations to
permanent sovereignty over their natural wealth and resources, to the Non-Aligned
Movement, to the New International Economic Order, to La Vía Campesina.9

2. Empire Moves

With one eye on the longue dureé of the ‘international community’ and the other on the
impact of its structures and institutions on Southern peoples and environments, TWAILers
have been forced to develop a dynamic account of imperialism. For them, as for Marxist
historians, ‘[m]en make their own history, but they do not make it as they please; they do
not make it under self-selected circumstances, but under circumstances existing already,
given and transmitted from the past.’10

Imperialism from a TWAIL perspective is, then, not a ‘historical’ phenomenon that can be
cordoned off somewhere in the past. Imperialism consists, instead, of a multifarious set of
asymmetrical arrangements and forms of conditional integration that have travelled
across time and space, and through many scales and sites of governance – from the
international to the national and the local; from the public to the private; from the
ideological to the material; from the human to the non-human, and beyond. These
constraining and detrimental forms of ordering make and remake our surroundings – and
indeed ourselves – on a daily basis.11

3. The South Moves

If empire moves, the South moves too. The categories of South and North are used in
TWAIL scholarship not as hard markers of differentiation, but to analyse the evolution –
and the continuities and discontinuities – of global economic, political, and legal relations.
These include the causes and effects of international migration and asylum patterns;
questions of Indigenous sovereignty across the world; and the impact of the IMF, the
World Bank, and other powerful international institutions on poverty and inequality within
and between states as different as Greece and Indonesia.12

In TWAIL-oriented work, the categories of Global South and North are thus understood
not as fixed realities but rather as dynamic frameworks which must be applied and
reconfigured in response to local specificities, regional trends, and larger changes to the
global economic and political system. Today, this is more pertinent than ever as we face a
deepening of inequality between and within states and regions – an inequality which,
paradoxically, only goes to underscore our interconnected responsibilities as the
inhabitants of this, our anthropocenic planet. ‘Most of the world’ is again a pretty good
description of where the heart of TWAIL lies.

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It is, therefore, not only in relation to the imperial character of international law that TWAIL
scholarship has been pioneering and original. Over the last two decades, TWAIL scholars
have argued that human rights law is very limited in what it can achieve to negate the
effects of neoliberalism.13 They have also argued that orthodox developmental policies
and investment frameworks are structurally biased. This scholarship, which has been
always global in its focus, is now proving prophetic as these same concerns are clearly
emerging in Northern locations and mainstream scholarship is arriving at similar
conclusions.

4. The Struggle is Multiple

If imperialism is not a matter of the past, and if empire moves just as the South moves,
then it follows that the struggle in which TWAIL is engaged is one fought on multiple fronts
and on a diverse and shifting terrain.

At the most general level, TWAIL’s struggle is about clearing the historical record
concerning the relationship between international law and imperialism past and present.
At a more specific level, it involves identifying those key moments in which imperialism
has become a constitutive element of the international legal order, and those particular
sites in which international law has been the fulcrum of empire. Taken together, TWAIL’s
agenda is directed at examining and altering legal understandings, and redeploying law in
a more progressive way; which means in a way attentive to progressive political and
political economic practices and horizons. As an intellectual project, TWAIL is also
concerned as much as with scholarly innovation as it is with due acknowledgment of the
important scholarship done by TWAIL scholars and others.

5. The Struggle is Here

Given this broad agenda of research and political action, TWAILers have insisted on the
importance of attending, as feminist scholars have shown us, as much to the personal as
to the political. This is crucial given the agonistic nature of states and citizens in the
Global South. Emblems – often – of independent life after colonial rule, many have
themselves taken on the oppressive, xenophobic characteristics of that from which they
fled. Trapped, whether willingly or unwillingly, in cycles of destructive production and
consumption; complicit in the radical securitisation of everyday life; deaf to the protests of
still-colonised Indigenous groups and minorities, the legacy of imperialism lives on in an
active as much as a passive sense in many Third World states.14 For 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’.15

Two lines to conclude. TWAIL is a movement, not a school; a network, not an institution; a
sensibility, not a doctrine. This restlessness and commitment to openness are nourished,
above all, by the diversity of the world to which TWAIL responds and from which its
momentum arises.

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I must thank Jenifer Evans for her editorial support and Antony Anghie, Rob Knox, Vasuki
Nesiah, Sundhya Pahuja, Rose Parfitt, and John Reynolds for their close reading of early
versions of this blog post. I would also like to thank the blog International Law Under
Construction for their initial invitation to write this overview of TWAIL and for permitting it
to be republished by Critical Legal Thinking.

Luis Eslava is Senior Lecturer in Law & Co-Director Center for Critical International Law
(CeCIL) at the University of Kent

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