Third World Approaches to International Law Review
Issue 02 (2021)
(2021) 2 TWAIL Review ISSN 2563-6693 Published under a Creative Commons licence.
E. Tendayi Achiume & Tamara Last ~ Decolonial Regionalism: Reorienting Southern African Migration Policy ~ pages 1-33
Southern African regional migration legal and policy frameworks and state practice poorly govern interconnection: lives lived through and across borders. Instead, contemporary approaches to migration governance in southern Africa, and the logics and capacity issues underpinning policymaking in this field, contribute to contemporary problems associated with migration, such as illegality, immobilised poverty and xenophobic violence. In effect, the existing regional and national regimes and their foreseeable trajectory undercut people’s capacity to sustain independent livelihoods and to enjoy the rights and privileges that the Southern African Development Community (SADC) has identified as entitlements of southern Africans. We examine the SADC’s migration governance framework, highlighting its competing normative commitments and making explicit the logics it facilitates, the forces that shape it, and how it allocates benefits among individuals and communities in the region. We situate our analysis within the colonial history of migration in the region, highlighting how colonially structured socio-economic interconnection and resulting migration patterns in the past have relevance for the present. We highlight continuities in the way that the contemporary migration governance regime facilitates historical patterns of exploitation and precarity, in a manner at odds with the decolonial movements and spirit that animated the SADC’s predecessor formation as the Frontline States. Finally, we propose reorientation of the reform momentum in the region, away from the inertia created by European Union-funded knowledge and policy production forces towards trajectories that are more decolonial in nature.
Fernanda Frizzo Bragato & Alex Sandro da Silveira Filho ~ The Colonial Limits of Transnational Corporations’ Accountability for Human Rights Violations ~ pages 34-58
The economic and political power of transnational corporations (TNCs) in the globalized world has hugely increased in recent years, even though their engagement as central players in the capitalist world economy dates to the dawn of European colonial enterprise. Corporate policies then and now have been twofold. On the one hand, they justify their operations in peripheral countries as triggers of development and progress. On the other hand, they usually commit or are involved in severe human rights violations and environmental harms that often go unpunished with local elites’ connivance. This paper introduces the concept of “coloniality” to understand how peripheral local elite engagement promotes and reinforces TNCs’ abusive human rights practices. The article will analyze the Ecuadorian National Court of Justice’s deployments that condemned Chevron to compensate local Ecuadorian communities for causing over 30 years of environmental damage. The conclusion is that this case shows the lack of accountability of TNCs in the Global South, underpinned by a fragile international regulation, lies on a continuing colonial logic characterized by a pervasive colonizer/colonized dichotomy that drives relations of domination from the Global North over the South and within the Global South.
Dorothy Makaza-Goede ~ Through the Contestation Looking-Glass: State Immunity and (Non)Compliance with the International Criminal Court ~ pages 59-89
This article contributes to the body of theory and argumentation that challenges the standard tendency of compliance-centrism in international law scholarship and practice, including in the study of the International Criminal Court (ICC) and its relationship with African states. It does so in three ways. Firstly, it suggests targeted analytical focus on noncompliance, which is relatively under-researched and theorised despite more than three decades of compliance literature in international law (IL) and international relations (IR). Secondly, the article deproblematises noncompliance by shifting the focus of legal debate around the noncompliance of some African states with the ICC towards alternative normative interpretation. It proposes that doing so advances an understanding of these states’ actions as pro-active contestation thus allowing for the effective challenging and critiquing of the normative construction, interpretation and application of international criminal law (ICL).By drawing attention to normative processes in international legal intercourse, this article presents a deeper and alternative comprehension of some African states’ choices in relation to ICL. Thirdly, the article fills the gaps of most compliance approaches from IL and IR by synthesising progressive IR theory into the service of a TWAIL argument. It adds to the growing number of academic voices influencing approaches regarding the critical analysis of significant global concepts such as (non)compliance, immunity, sovereignty, universality and the hegemonic power exercised over the Third World through IL. Such an approach shines a spotlight on the perspectives of states in the Global South that have previously been excluded in the construction and re-construction of international norms.
Kathryn Greenman & Ntina Tzouvala ~ Foreword: The League of Nations Decentred ~ pages 90-96
This special feature in the TWAIL Review was inspired by the conference ‘The League of Nations Decentred: Law, Crises and Legacies’ convened by Anne Orford, Kathryn Greenman, Luís Bogliolo and Ntina Tzouvala and hosted at Melbourne Law School from 17 to 19 July 2019. On the centenary of the founding of League of Nations, the conference gathered nearly 30 scholars in international law, international relations and history from around the world to think critically about the League with a view from the Global South. We are thrilled that the TWAIL Review is hosting this feature, not only because of its commitment to ‘productive engagement with international law through thinking by and with the sensibilities of Global South’, but also because TWAIL scholars have played such a central role in the surge of critical studies reappraising the League and its legacy in the last two decades.
Paola Zichi ~ “We Desire Justice First, Then We Will Work for Peace”: Clashes of Feminisms and Transnationalism in Mandatory Palestine ~ pages 97-121
The article focuses on the activism of the early Palestinian women’s movement in the terrain of Mandatory Palestine. It illustrates the tensions between transnational understandings of women’s rights and questions of orientalism and imperialism within the international arena. This tension is framed through a critical historical perspective that, on the one hand, includes women’s contributions to and strategic interventions in the legal infrastructure of the British Mandate for Palestine, and on the other hand, reflects on the weight of critical historical writings to foreground the relevance of decolonial and critical feminist approaches to international law for Israel/Palestine. By highlighting the oscillations of the first wave of the Arab feminist movement between resistance to and compliance with international law, it argues that transnational histories of an early Arab feminist activism challenged the horizon of a liberal Western feminism and that these interventions are often neglected in the international legal history of the origins of the Israeli/Palestinian conflict. Arab-Palestinian feminists, in fact, often swung between establishing women’s participation in the anticolonial nation building project dominated by male elites and the struggle to have their anti-colonialism recognised in the feminist international fora advocating for gender equality, which were often dominated by white feminists. By highlighting the contradiction between anti-colonialism and the social progressivism experienced by Arab feminists at the time, the article aims to re-draw the history of feminist endeavours in Palestine, not along a linear trajectory of the struggle for gender equality in the Middle East, but rather as a movement for individual and collective self-determination anchored in cosmopolitan and anticolonial understandings of citizenship.
Sophie Rigney ~ On Hearing Well and Being Well Heard: Indigenous International Law at the League of Nations ~ pages 122-153
This article examines four appeals to the League of Nations made by Indigenous people from British settler colonies. Diverse in form and content, these appeals nonetheless show how Indigenous communities have practiced Indigenous international law. There is a continued reiteration of Indigenous sovereignty as a matter of law, and a deployment of that sovereignty in relation to others – the dominion, the empire, and the international. In this article, I examine how these appeals show the ways Indigenous international law moves across legal times and spaces. I argue that Indigenous international law should be understood as a distinct mode of international law, operating (in part) in relation to European and Third World international laws, and I examine how these relationships can be remade.
Shaimaa Abdelkarim ~ Nuances of Recognition in the League of Nations and United Nations: Examining Modern and Contemporary Identity Deformations in Egypt ~ pages 154-179
This article unpacks a link between practices of recognition in the League of Nations and those of the United Nations, which both declare a unified political will in formerly colonised societies. This article builds on Frantz Fanon’s analysis of the colonial encounter and Jacques Derrida’s diagnosis of the European crisis in the interwar period to examine the contemporary implications of affirming European exemplarity while reproducing self-racialising agencies in formerly colonised societies. I move between two political moments that recognise a unified Egyptian identity: first, the League of Nations’ reception of al-Wafd Party in the Party’s quest to assert Egyptian sovereignty against the British Empire; and second, the United Nations’ response to the Egyptian uprising in 2011 as a triumph of a popular will. I suggest a resemblance between the United Nations’ reception of the uprising and granting Egypt its membership to the League. In both moments, international recognition is contingent on maintaining a close affinity between a unified Egyptian identity and western exemplarity. Against that, I propose that the societal deformations in those two moments suggest that representing a unified political will has become an interminable source of social dissatisfaction and political repression.
Parvathi Menon ~ Negotiating Subjection: The Political Economy of Protection in the Iraqi Mandate (1914-1932) ~ pages 180-199
The Mandate System provided a viable means for protecting European interests (without annexation), embedding the principle of foreign property protection as the basis for future relations between capital exporting and importing states. At the same time, the Mandates also protected the non-European Mandate inhabitants in preparation for their emancipation by introducing welfare measures, development, and ‘order’ that could support the protection of (foreign) property. The Iraqi example best explicates how the Mandate System uniquely combined vestiges of older imperial protection models and a future model for newly emancipated states, demonstrating the fluidity between the imperial and the international. I argue that such a fluidity helped facilitate a reciprocal causality between protecting people and protecting property, where protecting Iraqis facilitated British propertied interests. Equally, by separating the protection of people and property, I show how political self-determination of Mandate inhabitants remained distinct from their economic emancipation. Through these arguments, I demonstrate how protection of people and property was divergent and mutually constitutive.
Ryan Martínez Mitchell ~ Monroe’s Shadow: League of Nations Covenant Article 21 and the Space of Asia in International Legal Order ~ pages 200-231
The League of Nations Covenant included norms intended to formalize and protect the geopolitical interests of its Great Power architects. One such norm was the contentious Article 21, which provided legal recognition for ‘regional understandings like the Monroe Doctrine.’ Though originally included in the Covenant as a concession to the United States, Article 21 also raised the general possibility of a world divided into ‘great spaces’ with distinct internal orders. In doing so, it transposed the ambiguities of the Monroe Doctrine itself—norm against ‘external’ intrusions, or license for regional hegemony?—onto the global level. In Asia as elsewhere, this proved to be significant for the experience of the League by states and subjects that sought improvement of their international status. In particular, Japan’s ongoing aspirations for a ‘Monroe-ist’ regional sphere shaped that country’s, China’s, and broader Asian experiences of the League. Meanwhile, frictions over Article 21 and regionalism also impacted rival visions of global legal organization, racial-civilizational space, and sovereignty in the post-League era.