Cover artwork: ‘There was an academic friend here — where are you?’ by Samir Harb (Instagram: Samir_harbsss).
In memory of Dr Wiesam Essa (1975—2024) and all the scholars who have been tragically killed in Gaza by the Israeli war machine.
(2024) 6 TWAIL Review
ISSN 2563-6693
Published under a Creative Commons licence.
B.S. Chimni ~ Del reasentamiento a la repatriación involuntaria: hacia una historia crítica de las soluciones duraderas a los problemas de los refugiados
Abstract
Este artículo examina críticamente la evolución histórica de las soluciones duraderas propuestas para los problemas de los refugiados, con especial énfasis en el giro desde el reasentamiento hacia la repatriación —incluida la repatriación involuntaria— como estrategia predominante desde mediados de los años ochenta. A través de un enfoque histórico-materialista, B.S. Chimni argumenta que este cambio refleja no solo una transformación en las prioridades políticas y económicas de los Estados, sino también una erosión de los principios humanitarios que sustentaban el régimen internacional de protección. El autor cuestiona la neutralidad de las soluciones promovidas por organismos internacionales y propone una relectura crítica que incorpore las causas estructurales del desplazamiento forzado, abogando por una justicia global que trascienda los enfoques tecnocráticos actuales.
Hussein Badreddine ~ A Historical Perspective on Space Resource Exploitation
Abstract
The legality of space mining has been the subject of long debate. This article provides a comprehensive legal analysis of Article II of the Outer Space Treaty (OST) at the time of its creation. It is crucial to distinguish between arguments justifying space mining based on the original interpretation of the OST and those justifying it through the evolution of State practice. The focus here is on the former, and not on subsequent State practice. The conclusion here is that the treaty as originally drafted was not intended to, nor does it in its plain wording, support space mining. Nor is the mechanical application of legal analogies made at the time (and subsequently) — drawn from the freedom of fishing, seabed mining, and res communis — convincing. Rather, arguments for the legality of space mining rely upon the evolution of State practice, by which States have gradually bent the OST’s meaning to accommodate new interests. The purpose of this article is to establish the baseline for interpreting Article II of the OST, paving the way for future works to demonstrate how States have strategically altered its interpretation via practice to permit space mining. It re-surfaces the original drafting intentions of newly decolonized Third World States, highlighting how far current debates have moved from the agenda for space law they proposed.
Laura Acosta-Zárate ~ Beyond the Performance of Restorative Justice: The Role of Local Practices in Colombia’s Transitional Justice
Abstract
The Colombian peace agreement with the FARC follows a novel approach to Transitional Justice, prioritizing victims and restoring damages from the conflict. This system integrates judicial and non-judicial justice, truth, and reparation mechanisms. Rooted in theories from the Global North, these approaches are sometimes applied without considering local contexts, leading to interpretations of transitional justice as a form of colonization. The Colombian model challenges this by incorporating local cultural and traditional practices within its restorative framework. This raises a question: do these practices represent transformative change, or are they cosmetic responses? Interviews with judicial officials, victims, and representatives of civil and non-governmental organizations highlight the significance of integrating conscious responses to affected communities. This emphasizes local practices as meaningful for victims rather than performative gestures. Ultimately, I argue that the purpose of the current transitional justice system should acknowledge the rights, humanity, and agency of human and non-human elements beyond performative acts.
Daniel Rivas-Ramírez ~ We are not cut from the same cloth: Unveiling the exclusionary bias of sanitary policies for food production in Colombia
Abstract
The paper scrutinizes Colombian sanitary regulation through a decolonial lens, highlighting its role in marginalizing alternative production methods. Drawing on empirical experience and qualitative analysis, the author unveils the colonialist underpinnings of these regulations, which prioritize industrial norms and stigmatize traditional practices as inferior. By exploring international influences and exemplifying exclusionary biases, the paper advocates for reform to foster inclusivity, equity, and sustainability in the food production sector.
Ewuwuni Onnoghen-Theophilus ~ Data Free Flow with Trust: “Yea” or “Nay” for Developing Countries?
Abstract
Data Free Flow with Trust (DFFT) is a global data governance concept being advocated by the World Economic Forum. This paper examines the regime and argues that it is antithetical to the economic development of Third World countries. The paper equates data to a natural resource found within the territory of a nation and equates cyber sovereignty to permanent sovereignty. It argues that the benefits, mining, and transfer of data should be for the promotion of the national economic development of the State and its peoples as provided for under Paragraph 1 of the Permanent Sovereignty over Natural Resources, United Nations General Assembly resolution 1803 (XVII) of 14 December 1962. Using a purposive analysis method, the paper scrutinizes international reports on digital developments worldwide, United Nations documents, texts on international law and digital economy to establish that given the global North’s advanced digital evolution and sophistication in digital technology, they currently stand to benefit more from DFFT and a universal regulation of data than the global South who are currently in the nascent stages of development as regards their digital laws, institutions, infrastructure, knowledge, and skills. The contribution of this paper is the exploration of the nexus between the regulation of natural resources in international law and the global regulation of data from a Third World perspective. The paper concludes that at the current stage of their digital development, it is more beneficial for Third World countries to adopt their own domestic data governance regime and to enter into digital economy agreements (DEAs) than subscribing to DFFT or any other global date governance regime.
UnyimeAbasi Odong ~ Red Herrings, Red Flags, and Real Risks: A TWAIL Analysis of the FATF Regime for Virtual Currency Transactions
Abstract
The Financial Action Task Force’s (FATF) recommendations and guidance have been framed as objective global standards for the detection and prevention of illicit financial flows. Such broad framings obscure key assumptions of what global standards and priorities are or should be. Without critical examination from the perspective of Third World thinking, the FATF developed recommendations and guidelines for illicit financial flows. Building on these, a framework for monitoring and detecting money laundering (ML) using virtual currencies (VCs) has emerged, which relies on these contextless recommendations. By failing to account for Third World socioeconomic and sociocultural context and perspectives in the design and implementation of international ML regulation for VCs, these recommendations risk criminalizing transactions that are perfectly normal in local contexts, making compliance impossible, and sanctions inevitable. This, however, can be remedied by incorporating Third World perspectives in the design and implementation of international regulation of VCs along with internal changes in Third World countries to position them as net beneficiaries of both technology and international regulation. This paper probes the key assumptions underlying FATF framings for ML using VCs and the resulting prejudicial outcomes for Third World countries and the lived realities of its people. Applying a TWAIL methodology, this paper analyzes the western-centred thinking that grounds FATF structures, policies, and processes. The paper recommends the design and development of alternative international law structures and processes that respond more thoughtfully to Third World priorities and socioeconomic contexts, while also expanding the range of possible solutions. It further recommends internal changes to Third World states to position them as net beneficiaries in the global regulation of VCs.
Shahd Hammouri ~ Desensitising Modern Warfare through International Law
Abstract
This paper reflects upon the representations of war in international legal language. It discusses the representation of the Siege on Homs (2011-2014) using the medium of international law. These reflections raise questions about international law’s relationship with the reality of contemporary war defined by colonial residues and imperial ambitions. The language of international law represents war in a manner desensitised to some forms of violence, particularly those imposed collectively, economically, or inflicted on the Other of international law. Such desensitisation is a built-in feature of international legal language. To make this argument, I first study international law as a language that shapes our perceptions of reality and then I reflect on how this language can distort our perception of reality. Thereafter, I demonstrate how solipsism, dissociative tendencies and hyper-rationalism work to sustain distorted perceptions of reality and effectively desensitise our perception of contemporary warfare. To counter such desensitisation, I propose a methodological approach that centres precarity and structural injustice at the heart of our reckoning with the reality of warfare.
Kristen Thomasen & Jeremy Kellen ~ Smoke & Mirrors: The Imperial Arc of the Magic of Artificial Intelligence
Abstract
Artificial intelligence (AI) systems are increasingly promoted as having magical properties, evoking illusory claims of self-generating, supernatural technologies. Critical academics and activists explain that allusions to magic obscure developer responsibility for direct and indirect consequences of their new technologies. This rhetorical appeal to magical-scientific properties has been called “enchanted determinism”. The enchanted determinism critique highlights how claims to magic are used strategically to avoid legal or moral responsibility. Magical framing of these technologies makes any accompanying violent outcomes appear uncontrollable and inevitable. In contrast and throughout contemporary history, rhetorical appeals to magic have been levelled at people and communities as a means to justify legal repression, dispossession, and colonial conquest and expansion. Why then would rhetorical appeals to magic be helpful in the AI context where they have so often otherwise justified dispossession, exploitation, and enslavement? We contend that this incongruity is bridged by a common function of enchanted discourse: to obscure imperial policy, to justify colonial actions, and to Other and dehumanize the people and land needed to maintain economic and political dominance. In other words, hegemonic claims of ‘magic’ follow a common rhetorical thread linking historical and ongoing colonial processes through the obfuscation that accompanies the incomprehensible. We hope that making this connection more discernible can further demystify international processes that might lead to legal governance to restrain the growth of an imperial industry.
