Analysis of TWAIL Organization Goals and Its Role in the International Law

TWAIL means that the scholars initiates political and intellectual movement as they deems the regime of international legal system as illegitimate by the reason that it assists third world to be dominated and subordinated by developed states. TWAIL is reactive because it responses to international legal framework as manifest digest; meanwhile it is proactive as it tends to transform the situation of third world internally. What is intention of TWAIL-ers to create this approach?

Firstly, TWAIL seeks to improve the comprehension on how international legal system has allowed the European states to dominate over non-European states through the international norms and institution.

Secondly, the TWAIL scholarship intends to transform international law by taking into account of the interest and needs of developing nations, thereby achieving the principle of universality and encouraging justice of worldwide.

Thirdly, TWAIL aims to eliminate the condition of impoverishment of third world countries by way of political movement, scholarship as well as policy. This approach consists of two generations which are TWAIL I and TWAIL II. TWAIL I depicted that the international law at 19th century justifying the colonization and oppression against the third world countries. TWAIL I also put effort to transform international law by including the legal culture of third word for the advantage of entire international community to inequality between European states and non-European states. On the other hand, TWAIL II has continued to seek for the promise of TWAIL I by emphasizing on methodologies of international law and how these methodologies delivering the third world concerns.

TWAIL I was inspired by decolonization. We have to trace back to the history both world wars as well as the cold war in order to fully comprehend and perceive the phrase of “third world”. What is the meaning of third world? This phrase was conceptualized when there was tension between two superpowers during the cold war period which was happened in 1940s after world war II. These two superpowers were represented by United States(US) and Soviet Union where by Western World is represented by US and Eastern Europe is represented by Soviet Union. In 1955, there was a conference held in Bandung, Indonesia.

This conference had referred “third world” to newly emergeny nations of Asia, Africa as well as Latin America that have gained independence from colonist during the era of decolonization. They are neither aligned with North Atlantic Treaty Organization (NATO) and capitalism nor Soviet Union and communism. First world refers to the state entities which support North Atlantic Treaty Organization (NATO) and capitalism, meanwhile second world refers to the state entities which support Soviet Union and communism. Besides, third world can be described as developing countries.

Most of the third world countries were previous colonial subject and had suffered gross and mass deprivation as a result of colonialism. Therefore, they were characterized by domination of political will by the West, non-industrialised, high illiteracy and poverty. This has become a stereotype to regard the third world countries as powerless, under development and dependent upon developed countries. As a result, third world countries are treated unfairly and being exploited in respect of legal framework. Even though they have gained freedom from colonist countries, they still have no power and it is difficult for them to bring any influence on international economy like any other developed nations. According to a TWAIL statesman called Julius Nyerere, he stated that in making rule of international law, most of the third world countries do not participate, they just accept and apply the law. Therefore, the main spirit of TWAIL I is to remove the characteristic of Eurocentric from the international norms as well as institutions towards a unity in diversity and to give rise the result that will be advantageous to the humanity of whole mankind.

TWAIL II was started with the criticism on the exploitative global system whereby those under-developed and weak countries have no opportunity in engaging international policy or claim unless they participate collectively. TWAIL II was led by a group of graduate students from Harvard Law School in 1966 through a few meetings. The issues raised during meeting are whether TWAIL is possible and what is the primary interest about this approach. TWAIL-ers are interested in participating the global claim in regards to public international law as well as international law of economy. They intended to wipe out the old approaches of international law in the eyes of third world. TWAIL II does not only respond to the revolution of TWAIL I but also respond to the alteration of structural and historical of worldwide condition in the aspects of politic, economy as well as social culture. TWAIL II also pays attention on the international economic relation, whereby the role of power, institution as well as domestic political are not marginalized. Besides, the sovereignty doctrine has been acknowledged by TWAIL II scholar so as to provide protection to third world by principle of the non-intervention. TWAIL II scholarship has analyzed whether those development policies governed by international law and institution is in fact prejudicial to the developing countries.

What are the significant characteristics of TWAIL? Firstly, TWAIL is antihierarchical in the sense that it calls for equality between people and cultures regardless of its geographical location and races. It is because TWAIL is an approach to oppose Eurocentricity of international law. As I have mentioned earlier, international law at nineteenth century allows the supremacy of European over non-European as colonialism is regarded as a burden to be discharged by white man. Secondly, this approach is counterhegemonic in nature so as to be against the global hegemony of the Western culture. TWAIL criticizes the view that third world countries normally become silence when it comes to international order in the aspect of economy and legal system. For the purpose of ending marginalization and silence of developing nations, TWAIL scholarship seeks for honest and sincere democratization of developing states so as to make sure both voices to be heard, not only the developed countries but also developing countries which is mainly constituted by non-industrialized, powerless and poor countries.

Therefore, TWAIL allows those developing nations which does not fall within the definition of civilization and Eurocentrism to take part in the decision-making of international governance. Thirdly, this project is suspicious of ecumenical truths and belief. TWAIL doubts on the universality characteristic in international norms and governance such as human rights and international treaty called Trade-Related Aspect of Intellectual Property Rights (TRIPs) which provides protection to the intellectual property. Therefore, TWAIL rejects the belief that capitalism should prevail over humanity. Last but not least, TWAIL can be described as a coalition whereby TWAIL views that coalitionary movement is necessary and effective tactic to fight against the vulnerability of as well as victimization over the third world and to neglect the Western community. Obiora Chinedu Okafor has mentioned that these third world scholars are integrated by a mutual commitment to intellectual endeavor to reconstruct the attributes of international law which would cause unfair world order. For instance, TWAIL quests for the cooperation with critical race theory (CRT) and new approaches to international law (NAIL) with the hope to combat the Eurocentricity power structure in the realm of national and international.

TWAIL scholarship must oppose to any issue in international legal forum which will cause detriment to the third world countries. The objective of TWAIL scholarship is to eradicate any harm endured by the third world countries as a result of unjust international legal system which is biased against the west and also eliminate the vulnerability of the third world. There are few techniques of analysis to be employed by TWAIL-ers to study and examine the universal order. Firstly, TWAIL-ers has developed deep understanding on the history of world wars and cold war as to comprehend the current attributes of international legal system.

So that, TWAIL scholarship may remove the device and concept used by transnational power in the historical period to introduce the present technique into contemporary international rules. Since third world countries has shared the similar colonial experience, this can be written by TWAIL-ers into the procedure and result of international governance. Secondly, one of the TWAIL analytic techniques is to emphasize on the equality of third world countries as they should not deserve less self-respect and security by the reason of stereotype. Third world countries are also entitled to equal right and advantages from the international claim like any other countries such as first world and second world. Thirdly, the works of TWAIL scholarship also reveal their advocacy to the resistance of worldwide hegemonies.

In the eyes of TWAIL scholarship, international law has been regarded as a set of rules which produce unjust and unfair treatment in respect of international economy and political hierarchy, thereby allowing the subjection of poorer and vulnerable countries to more developed and rich countries. TWAIL scholarship has viewed that the international legal system poses the unequal power relationship between former colonized countries and former colonizers. They has demonstrated how the international law such as human right, international economic law and public international law are bias and unjust in the sense that such laws are usually implemented in the way that they would adversely affect the interest of third world countries despite the fact that those international law are claimed to serve for the benefits of worldwide.

There is consensus among TWAIL-ers that international law which was constructed during the era of colonization has been used as a means of naked power to dominion over colonized countries for the advantages of manifest digest. TWAIL-ers also laid down how Eurocentric international law aids the subordination of Asian to Europeans and exploitation over the third world with the pretence of universality claim TWAIL-ers contended that international law which aims to safeguard the trade and business transaction has allowed the transportation of raw materials from Asian countries to developing countries. As a consequence of decolonization, this international legal system has been regarded as a modern-day slavery whereby those third world countries are still being discriminated in the form of economic subordination to the West even though they have acquired political independence. If truth be told, the domination is still existing and what is modified is the form only. The law governing economic relation between developed and developing states has been skillfully introduced through the international legal system.

Moreover, agenda of third world in international law has been actuated by TWAIL scholarship beyond examining whether there is engagement of third world in the constructing of international rules and institution. Furthermore, TWAIL scholarship has sought to reconstruct and reform international legal system by providing alternative mechanism to contemporary international rule to overcome its Eurocentricity. This commitment is entrusted with the hope that the sovereignty can be obtained by these newly independent nations, thereby changing their footing in worldwide and reconstructing the international society, so that they are entitled to participate in the international legal framework. This would bring about an equitable, just and fair international system. As a result, these developing nations can share the same status quo like any other developed countries in the modern civilization.

Hence, it can be concluded that TWAIL is a critical approach to current regime of international law as it allows subordination of third world to first and second world. TWAIL is antihierarchical, opposes to the hegemonies, suspicious of ecumenical truths and belief as well as coalitionary movement. There are criticism on the universality claim of international rules such as sovereignty doctrine, international economic law and human rights as they has interfered the right and interest of third world countries. TWAIL is also an agenda to map the Eurocentricity of international law and quests for reformation of international legal system for the sake of the interest of third world countries.