Third World Approaches to International Law Review
Issue 01 (2020)
(2020) 1 TWAIL Review ISSN 2563-6693 Published under a Creative Commons licence.
Antony Anghie ~ ‘Welcoming the TWAIL Review’ ~ pages 1–6
A journal, and everything that accompanies it, is a community, and every writer needs a community and the solidarity it provides. A scholar, particularly a young scholar seeking now to establish herself is confronted with a host of complications. In addition to all the challenges presented by a rapidly changing academic environment, she is subject to the great stresses of publishing prolifically, teaching large and anxious classes and developing a profile, measurable by the metrics and rankings developed by our industry. Social media platforms have become essential parts of this process. These could serve important purposes in democratizing scholarship, as projects like TWAILR and Afronomics have themselves so successfully demonstrated. And yet, this whirl of statistics – of citations, retweets and likes – surely creates its own difficulties and anxieties. In the midst of all this my hope is that the TWAIL Review will be a haven and provide a different sort of forum to young scholars, that it will help them find their voice, engage with a community that may be critical but which is still sympathetic.
TWAILR Editorial Collective ~ ‘A Journal for a Community’ ~ pages 7–13
Our purpose in creating TWAILR is to provide a space for critical scholars, mainly from the global South and their allies oriented to the South, to participate in the project of international law, produce knowledge creatively through interdisciplinarity, and push our discipline towards becoming genuinely emancipatory, egalitarian, and international. To enable this, we have eschewed some publication conventions. To remain as accessible and readable as possible, particularly to those in the global South, we do not operate under the auspices of any publishing house. TWAILR is wholly online, without a parallel print publication and committed to remaining openly accessible and without any subscription cost. While TWAILR begins as an English language publication, it will diversify to other languages when the platform establishes itself and our resources grow. We have an accountable and non-hierarchical organizational structure wherein the editorial collective represents different regions, genders and scholarly paths. The editorial collective will rotate its members from among the TWAIL network. To reflect the plurality of Third World approaches, the editorial collective incorporates perspectives from across the fields of Third Worldist, Marxist and feminist thought, postcolonialism and decoloniality, Indigenous studies and critical race theory, and more.
Karin Mickelson ~ ‘Hope in a TWAIL Register’ ~ pages 14–27
This essay explores the role and importance of hope in TWAIL scholarship and activism as well as in current debates on environmental challenges, and climate change in particular. Beginning by differentiating hope from optimism and faith, the essay describes the distinctive role that hope has played at different stages of TWAIL. It then considers some insights that can be gleaned from the literature on hope in the environmental context, highlighting not only its importance in helping us to confront complex and sometimes overwhelming challenges, but also the need to recognize the different forms that hope can take. The essay concludes by emphasizing the importance of connection and community in building and maintaining hope.
James Gathii ~ ‘Africa and the Radical Origins of the Right to Development’ ~ pages 28–50
This article builds on my earlier scholarship on African approaches to international law through examining the evolution of the right to development. Previously, I identified two approaches to international law in Africa – a contributionist (or weak) approach and a critical (or strong) approach. Through analysis of the right to development in the work of two eminent Senegalist jurists, Doudou Thiam and Keba Mbaye, I show that while Thiam adopts a radical stance that falls within the realm of critical approaches, Mbaye charts a third way: One that shares aspects of both approaches but has distinct characteristics of its own. These distinct elements show diverse and nuanced African perspectives, many of which are neither narrowly universalist in a Eurocentric sense nor parochially ethnocentric because they take too seriously Africanity. Acknowledging disparate and often competing strands of Third Worldism is important in a moment of declining United States unipolarity. This decline opens an entry point for assessing third world visions of regional and global order from the past and their continued vitality and relevance today.
Moral economy is an analytic category that refers to a ‘moral’ arrangement of resources and institutions that privilege the ethic of subsistence – a minimalist bottom line – over that of the market economy. It is, in a sense, a proto theory of systems of existence that lie outside the fold of the market economy and its rationalist cost-benefit postulates. This article proposes that enclosure of the biotic commons into enclaves of proprietorial entitlements has been made possible through the reconstruction of the category of moral economy in order to invest such enclosures with an ethic of ‘progress’ and ‘sustainable’ development. Law has projected the enclosure of the biotic commons as a normative strategy in the larger context of the disenfranchisement of local and Indigenous communities under regimes of national and international law. This article explores how the discourses of innovationism and environmentalism reconstitute the idea of what is good for societies globally, toppling the idea that conventionally formed the global ethic for a moral economy.
Fabia Fernandes Carvalho Veçoso ~ ‘Resisting Intervention through Sovereign Debt: A Redescription of the Drago Doctrine’ ~ pages 74–92
This contribution redescribes the legal discussions on intervention and sovereign debt in the Americas, considering the 1902-3 Venezuelan blockade. It assesses the legal interpretation developed by the Argentine lawyer and diplomat Luis María Drago to oppose the forceful collection of public debt under international law. The focus on sovereign debt opens space for broader interrogations on the role of states in protecting common interests in a political community, and the ways in which armed interventions can be legally justified to that end. Geopolitical issues also come to the surface when discussing the Venezuelan blockade, as this event sheds light on a critical regional moment in Latin America. In light of European attempts to keep exerting hegemony over the region – or, in the case of late German imperialism, to properly become an influential power in Latin America – the United States started to interpret the Monroe Doctrine expansively, changing the required measures aimed at defending its interests in the region. International law and the legal discussions on the enforcement of pecuniary claims played a substantive role in this context, both in enabling hegemonic projects and in resisting them.
Paulo Ilich Bacca ~ ‘The Double Bind and the Reverse Side of the International Legal Order: Talking with Silvia Rivera Cusicanqui and El Colectivo’ ~ pages 93–120
This article analyses the complexities of the double bind between colonial domination and Indigenous resistance in conversation with anarchist sociologist Silvia Rivera Cusicanqui. The functioning of the double bind appears in the article at three levels: first, by exploring the encounter between Western and Indigenous jurisdictions in the context of colonial meetings and across imperial networks; second, by analyzing the way in which Rivera develops an epistemological program based on daily life practices; and, third, by showing one example in which Rivera develops a double bind epistemological framework in order to read the colonial encounter between Western and Indigenous jurisdictions in the Americas in the sixteenth century. The interaction with Rivera allowed me to better understand the complexities of an Andean world that operates through the double bind of being Indigenous and non-Indigenous at the same time; while on the other, it enabled me to test out the academic tradition that depicts history, in particular the history of the international legal order, in a linear and progressive trajectory. With this approximation at hand, I analyze the relationship between past, present, and future within the social life of Andean Indigenous communities.
Ali Hammoudi ~ ‘The International Law of Informal Empire and the “Question of Oman”’ ~ pages 121–151
Semi-colonialism is a perplexing concept in international legal scholarship that has more often than not been conflated with colonialism proper. To remedy this analytic confusion, I propose a shift from a focus on the ideological aspects of the imperialism of international law to the semi-colonial practices of informal domination on the ground. To do this, I revisit the understudied concept of the ‘protectorate’ in international law, and analyze its geopolitical uses. The geopolitical dimensions of protection illustrate the importance of geopolitics in the history of international law. After examining the connections between geopolitics and international law, the second part of the article looks into the origins of the strategic region of the ‘Middle East,’ focusing on the history of the protected states of the Trucial treaty system in the Persian Gulf. Finally, I turn to the ‘Question of Oman’ at the United Nations (1957-1965) to illustrate how the practices of informal domination operated through semi-colonial techniques of veiling imperial domination, the legal obfuscation of power relations, the legitimization of unilateral treaty breaking and geopolitical maneuvering with international legal arguments.
Hailegabriel G. Feyissa ~ ‘Non-European Imperialism and Europeanisation of Law: Complexities of Legal Codification in Imperial Ethiopia’ ~ pages 152–175
This article focuses on the European standard of civilisation regarding domestic legal systems and its application in imperial Ethiopia. It establishes a link between European legal imperialism, Abyssinian imperialism, and imperial Ethiopia’s domestic legal regime overhaul. More specifically, it examines imperial Ethiopia’s response to charges of inadequate domestic legal regime (notably, civil codification) and its relationship to the ideological views and interests of the Abyssinian elites concerned with the consolidation of a unique Horn of African empire in the shadow of semi-colonialism. It argues that civil codification in imperial Ethiopia was embedded in an imperialism bent on expanding the Abyssinian image of Ethiopia into the juridical realm. The 1960 Ethiopian Civil Code, which did not make concessions to non-Orthodox Christian gebbars of imperial Ethiopia’s peripheries, is a pronouncement of Abyssinian paramountcy in imperial Ethiopia. By showing the 1960 Ethiopian Civil Code, imperial Ethiopia’s most recognisable response to European legal imperialism was reflective of Abyssinian imperialism, not just its semi-colonialism, the article highlights the importance of considering the multiple historical (imperial) contexts for semi-colonial polities’ responses to European legal imperialism.