THE THIRD WORLD

APPROACH TO
INTERNATIONAL LAW
(1)An alternative approach to “Western” notions of International law-
TWAIL-and, (2)“is International law, really law?”
TWAIL-outline
• 1. CERTAIN DEGREE OF UNIVERSITALITY: “While it is certainly true
that a certain degree of universality is inevitable, and even desirable,
TWAIL frowns on attempts to confer universality on norms and
practices that are European in origin, thought, and experience”.
• 2. FREE MARKET and PRIVATE PROPERTY:“Thus, TWAIL does not
believe that free-market, private property, or trade values are
superior to, or automatically trump, other human values”.
• What is the opposite to the aforesaid? The opposite of a free market
economy is a planned, controlled, or command economy by a government.
TWAIL
• CFS: “It must, be clear that the UN and Security Council would be well
advised to treat seriously the anti-colonialist, non-interventionist and pan-
African ethos that drives the AU. As is referred to below, the power
structure of the Security Council has been a constant problem since the
1950s.”
• See https://www.saflii.org/za/journals/SPECJU/2016/5.html
• “IS A PERMANENT AFRICAN CRIMINAL COURT LIKELY SOON CONSIDERING
THE CONTINENT’S POST-COLONIAL RESPONSE TO INTERNATIONAL
CRIMINAL JUSTICE?”
• Professor CF (Neels) SwanepoelBA LLB (Stellenbosch) LLM LLD, (University of the Free State) Associate Professor:
Public Law, University of the Free State.
TWAIL-study and consult “What Is
TWAIL?”
Author(s): Makau Mutua and Antony Anghie
• What is TWAIL? A movement of scholars and members of the so-called “third
world” who advocate that international law is illegitimate and that
historically the third world has viewed it as a system of domination and
subordination, not resistance and liberation.
• It specifically has its roots in the decolonization movement
• It has three inter related objectives
• 1. To understand and deconstruct international law as a means to continue to
subordinate non-Europeans.
• 2.To seek an alternative normative basis for “international governance” of
relations between states.
• 3.Thereby. to eradicate the “conditions of underdevelopment”.
TWAIL
• The value TWAIL has had:-Motau- “ it has made enormous
contributions to the struggle to unravel the cruelties that have and
are being inflicted on the Third World by the West”.
• It stands as a Third World challenge to European hegemony.
(“leadership or dominance, especially by one state or social group
over others”.)
• There are two TWIAL’s trends- the moderate and totalitarian reform
of Int’l) Both are “are united in their opposition to official
international law”.
TWAIL-Motau’s arguments for change
• “International law claims to be universal, although its creators have
unambiguously asserted its European and Christian origins.”
• On the notion of sovereignty: A sad irony: Sovereignty of states itself,
was the key to justifying, colonialism. But it provided the tool to
decolonize also! (Thus-supposedly- a contradiction of the terms.)
• “Brutal force, including the most barbaric actions imaginable, was
applied by Europeans in the furtherance of colonialism”.
• “The "Age of Empire" thus witnessed the forced assimilation of non-
European peoples into international law, a regime of global governance
that issued from European thought, history, culture, and experience”.
TWAIL
• ILLUSIONARY POLITICAL INDEPENDENCE-“Immediately after World War II,
many colonies overthrew the yoke of direct colonial rule. But they quickly
realized that political independence was largely illusory. Although now
formally free, Third World states were still bonded politically, legally, and
economically to the West”. (Is history repeating itself?) South Africa is the world's largest
producer of platinum, vanadium, manganese, vermiculite and chrome and the second largest producer of ilmenite, palladium,
zirconium and rutile.

• THE UNITED NATIONS: “Ostensibly, the United Nations was the neutral,
universal and fair guardian of the new order. But in reality, European
hegemony over global affairs was simply transferred to the big powers the
United States, Britain, France, the Soviet Union, and China which allotted
themselves permanent seats at the Security Council, the most powerful UN
organ” (Russia+China-part of the “west”?)
TWAIL
• “The primacy of the Security Council over the UN General Assembly,
which, NUMERICALLY IS dominated by Third World states, made a
mockery of the notion of sovereign equality among states”
• “In the economic arena, Third World states found themselves
‘supervised’ by the Bretton Woods institutions the World Bank,
International Monetary Fund (IMF), and General Agreement on Tariffs
and Trade (GATT)multinational corporations and the Western states.
In the eyes of all of these institutions, the newly emergent states
remained marginal, and at the mercy of Western capital”.-How can
this be changed?
TWAIL
• But what gave rise to Western dominance may be asked?
• The Renaissance, meaning “rebirth,” was a period of innovation in
culture, art, and learning that took place between the fourteenth and
sixteenth centuries, starting in Italy and then spreading to various other
parts of Europe.
• “The era of the Renaissance began in the 14th century ….significant
advancements during this time, society transitioned from the Middle
Ages to the Modern Age. These advancements took place in a wide range
of aspects from social to economical and political disciplines. The era is
especially associated with the Age of Discovery when a lot of economies
gained competitive advantages by way of exploration discoveries”.
TWAIL
• THE THIRD WORLD CHALLENGE: “Mwalimu Julius Nyerere, the late
President of Tanzania and an original TWAIL statesman, defined "the
meaning and practice of neo-colonialism“ as the inability of Third
World states to change their dependency upon and exploitation by
the former imperial powers. Crushing debt, which the West advanced
to corrupt, undemocratic regimes, now ensures that many countries
in Africa, Asia, and Latin America cannot create meaningful
development programs”.
TWAIL
• THE PUSH TOWARDS MODERN GLOBALISM: “Today, globalization
and the ubiquity of free markets, and the push for a single global
market, simply underscore these evil imbalances which characterize
the international order. The World Trade Organisation (WTO), which
is an opaque undemocratic bureaucracy, is the latest in a series of
international institutions perpetuating Western hegemony over the
rest of the world”.
THIRD WORLD
• Is there something like “African Hegemony,” except its shared
experience of imperialism and colonialism?
• Motau says: “The Third World is more truly a stream of similar
historical experiences across virtually all non-European societies that
has given rise to a particular voice, a form of intellectual and political
consciousness”. African borders are those of Western occupiers.
People should be allowed to freely move around
TWAIL
• President Nyerere in Motau “The Third World consists of the victims
and the powerless in the international economy .... Together we
constitute a majority of the world's population, and possess the
largest part of certain important raw materials, but we have no
control and hardly any influence over the manner in which the
nations of the world arrange their economic affairs. In international
rule-making, we are recipients not participants…” How can this be
changed?
TWAIL
• THEREFORE: TWAIL is a trend, an academic pursuit. It is a political and
ideological commitment to a particular set of views. That is why
TWAIL is fundamentally a reconstructive movement that seeks a new
compact of international law. NB: CENTRAL TO THE MOVEMENT is a
refusal to treat as “sacred” any norm, process, or institution of either
domestic or international law. All factors that create, foster, legitimize,
and maintain harmful hierarchies and oppressions must be revisited
and changed.
• That is the commitment of TWAIL.
Is International Law really law? See Dr.
Nell’s exposition in the study guide
• Compare international law to domestic law:
• There is no central legislative body in international law with the
power to enact enforceable rules upon all states. The rules of
international law are to be found in agreements between states,
known as treaties, and in international custom (and practice). These
rules are not imposed from above by any central law-making body.
Instead, they are created by the consent of states.
• Whereas municipal/national law operates vertically, with rules
imposed from above, international law is a horizontal system in which
the lawmaker and subject is the same legal person.
Really law?
• There is no central executive authority with a police force at its
disposal to enforce the rules of international law. The UN is not a
world government: it lacks the power to direct states to comply with
the law; and it lacks a permanent police force to punish violators of
the law.
• International law does have a judicial system capable of ruling
effectively on disputes between states. In addition, there is a further
important difference between international courts and domestic
courts: international courts have jurisdiction only over those states
that have consented to their jurisdiction
Really law?
According to Frederick Pollock, a legal system requires the existence of
a political community, …. recognition by its members of settled rules
binding upon them. According to these criteria he… that it is law
• First, there is a political community, namely the community of
modern states. Secondly, there is a body of rules and principles that
comprises the international legal order.
• Thirdly, the members of the international community recognise
(although not absolutely) these rules and principles as binding upon
them, despite that it is mostly influenced by their respective state
interest in the matter in dispute.