(2022) 3 TWAIL Review
ISSN 2563-6693
Published under a Creative Commons licence.
Yilin Wang ~ The Dissociation of Chinese International Law Scholars from TWAIL ~ pages 1-24
Abstract
Despite historical affinity and instrumental utility for criticizing Eurocentrism and structural bias, Chinese international law scholars gradually lost interest in Third World Approaches to International Law (TWAIL) in substantiating arguments in the Chinese approach to international law. This article first delineates what TWAIL entails and its importance to international law. More specifically, by delineating the relationship between TWAIL and Chinese scholars from the 1950s to the current period, I explain this dissociation in light of China’s rapid economic growth, the dissolution of the Soviet Union, the rise of China, and associated implications for international law. On this basis, I then explain why the absence of TWAIL scholarship is more conspicuous in China based on two reasons: the close identification between Chinese scholars with the government’s position and the lack of inter-disciplinary studies. Finally, I argue that dissociation between Chinese scholars and TWAIL is a sign that Chinese scholars in international law are paving towards developing a sui generis Chinese site of agency in international legal theory.
Robert Knox ~ Imperialism, Hypocrisy and the Politics of International Law ~ pages 25-67
Abstract
International lawyers typically dismiss accusations of ‘hypocrisy’ as rhetoric. By contrast, this article argues that such accusations are central to international law. The article begins by examining the centrality of accusations of hypocrisy to the 2014 Crimea crisis, noting the crucial juridical function of accusations of hypocrisy. In order to unpack this, the article turns to political theorists of hypocrisy, who see a structural link between ‘modernity’ and ‘hypocrisy’. Modern societies lack an overarching set of agreed ‘values’, making accusations of hypocrisy a crucial political currency. At the same time, the contradiction between formal legal equality and social and economic inequality in modern society constantly generates hypocritical behaviour. The article demonstrates that we can only fully understand this situation in light of the social relations of capitalism. The article charts historically how the unfolding of capitalist social relations gave rise to different configurations of hypocrisy within international law. Finally, the article asks what potential such accusations might have to help transform and overcome the social relations of capitalism and imperialism.
Asma Atique ~ The Story of Masdar: ‘Sustainable Development’ for Migrant Justice? ~ pages 68-91
Abstract
This article explores whether the doctrine and rhetoric of sustainable development (SD) are compatible with robust notions of migrant justice, through a focus on Masdar City, an eco-smart city in oil-rich Abu Dhabi. After discussing what migrant justice entails and the potential link between SD and migrant workers’ concerns, I examine how SD is practiced in Masdar City. Drawing on Third World Approaches to International Law (TWAIL), I study the example of Masdar to understand the process of how SD gets coopted because of SD’s conceptual evolution which consistently places economic concerns over social and environmental aspects. Ultimately, my study of Masdar City shows the eco-modernist logic and unidimensional view of economic-centered growth that is embedded in the concept of SD, watering down its social content and undermining its compatibility with migrant justice.
Perpetua Akoth Adar ~ Space and the Future of Humanity: A TWAIL Critique of International Space Law and Space Discourse ~ pages 92-115
Abstract
There is growing concern over different areas in the space sector, particularly as more rockets and satellites are being launched into space, and our dependency on space technology increases. New technologies, national ambitions and investments, and private space actors are some of the many variables propelling space activities forward. With increased space activities, there are also emerging and aspirant space actors joining from Latin America, Middle East, Africa, and Southeast Asia. International Space Law (ISL) needs to develop to respond to current and future activity. This article uses Third World Approaches to International Law (TWAIL) to analyse space discourse and the ISL regime. Specifically, the author uses three TWAIL techniques to reveal the ways in which space discourse and the ISL regime manifest coloniality. Although ISL as revealed by TWAIL analytical critique seems dire, the author offers areas for reform and resistance. The author submits that a TWAIL sensibility offers potential areas of research in the pursuit of a just world on earth and for the future of humanity in space.
Pushkar Reddy ~ Breaking Away from Binaries: Can TWAIL Enrich Normative Views of the ‘Race to the Bottom’? ~ pages 116-133
Abstract
The ‘Race to the Bottom’ (RttB) hypothesis refers to global competition arising from the fluidity of transnational capital moving across national borders. Some states in the global North are concerned that the fluidity of transnational capital will stimulate countries to deregulate their markets. However, proponent nations – particularly in the global South – consider deregulation a viable means of attracting foreign capital. While the two arguments are not lacking in merit, their present binary is unrepresentative of the RttB hypothesis. This article examines the RttB hypothesis through the history of labour deregulation in India to seek an alternate framework to understand RttB beyond the global North versus global South binary. This article engages with contemporary TWAIL scholarship to reconsider the RttB debate through a non-statist perspective, creating a framework that accounts for the complex hierarchical struggles within a nation and highlighting the experience of marginalised communities in the face of RttB.
Jake Okechukwu Effoduh ~ Regulating Self-driving Cars: An African Perspective ~ pages 134-170
Abstract
Self-driving cars as a mode of transportation in Africa is probably more of a ‘when’ than an ‘if’ question. These autonomous vehicles that could benefit human safety by reducing human deaths from car crashes, may disadvantage Africans if the production of the technology does not adequately reflect African perspectives, including in the ethical constructions about rulemaking. To reduce or prevent technological racism, inequality, and the marginalization of Africans, actors in this field of autonomous transportation should investigate and challenge the differentials of power that will arise from the innovation. Ethical rulemaking for autonomous vehicles must be open, continuous, inclusive, collaborative and communitarian. Any ethical standards proffered should be cognisant of societal and environmental wellbeing and should ensure local sustainability and knowledge mobilization within the adopting states. Rulemaking on self-driving cars must go beyond ethics and should rely on international human rights norms and standards as a minimum core. Within the various instruments of international human rights law, the African regional system provides a unique perspective on human rights, and the African human rights instruments require new technologies to be cognizant of cultural norms and traditional knowledge, and to not perpetuate colonial constructions. An African perspective in this discourse on self-driving cars is relevant for its regional adoption and absorption, and it could also provide a more holistic, responsible, equitable, and accountable appreciation of the technology.
Vasanthi Venkatesh ~ International Casteist Governance and the Dalit Radical Tradition: Reimagining a Counter-hegemonic Transnational Legal Order ~ pages 171-203
Abstract
Responding to calls in TWAIL scholarship, this article shows how the radical Dalit/anti-caste tradition — largely overlooked in the arena of international law — offers a critical lens to conceptualise a post-hegemonic global order. I begin by describing how the caste system is sustained in the post-Independence and in the ‘Hindutva’ Indian state through social, political, and economic exclusion, Brahminical epistemic hegemony, violence, and stigmatisation. I discuss how the caste order is reproduced in the international legal order through neoliberal immigration policies and globalisation of racial capitalism and religious fundamentalism; and how caste compels us to think of hegemony beyond Eurocentrism and colonialism. I take inspiration from Cedric Robinson’s approach in centring the ‘Black Radical Tradition’ as resistance to racial capitalist order to illuminate the potential of the Dalit radical tradition in a ‘post-hegemonic global order’. Specifically, I trace the foundation of a radical tradition in the works of preeminent Dalit intellectual and legal scholar Dr. Ambedkar, and then analyse Dalit resistance in transnational and Global North legal forums.
Haris Jamil & Sujith Koonan ~ The State, State Practice and International Law: A Critical Examination ~ pages 204-222
Abstract
The concept of ‘state practice’ plays an important role in the creation, interpretation and application of international law. The meaning of the state shapes the concept of ‘state practice’, where international law views the ‘state’ in ‘state practice’ as comprising of only core state institutions. In this paper, we show that, while the mainstream international law conception of the ‘state’ in ‘state practice’ appears as a ‘subject’, a critical conception treats it as a ‘thing’. We refer to Nicos Poulantzas’ view of the state, which helps us go beyond both the mainstream international law conception of the state as a single legal person in international law standing above class conflicts (‘subject’) and the critical conception of the state as an instrument, a passive tool in the hands of a class (‘thing’). Instead, Poulantzas views the state as a social relation. We use this view to critique the concept of ‘state practice’ and argue that: (a) the concept of ‘state practice’ ignores that the actions of the state are often a product of contradictions between different forces within the state; (b) international law fails to recognize that it is only by inquiring into the contradictions between different forces that the specific interests which a ‘state practice’ is serving may be understood; and (c) by ignoring the practices of non-state actors (particularly, dominated groups) international law fails to acknowledge their interests and resistance against the state conduct.
