Saturday, August 8, 2009

al Attar & Miller: TWAIL Revisited - The Bolivarian Reconstruction of International Law

Mohsen al Attar (Univ. of Auckland - Law) & Rosalie Miller have posted TWAIL Revisited - The Bolivarian Reconstruction of International Law. Here's the abstract:

For decades, Third World legal scholars have challenged the existing international legal regime, seeking to undo the structural imbalances that permeate contemporary global society. The TWAIL Movement, or Third World Approaches to International Law, has consistently worked towards producing a credible critique of international law, with the aim of redressing multiple historical biases that pervade the global order. Scholars have contributed to this movement primarily by identifying the inherently injurious nature of its procedures and structures in respect to Third World states and their peoples. Yet, despite their best efforts, historical power imbalances persist in the international legal regime as does material deprivation among Third World societies. Part of this lack of success is due to the forceful counter-challenges waged by First World states, unmoved by Third World collective plight and unwilling to surrender First World political power. It also results from TWAIL scholars’ inability to articulate a cohesive counter-vision of world society that would allow all peoples to stand as equals. Finally, the triumph of such a grand legal (and social) reformative programme necessitates a veritable rebirth of international social relations, one that has, until now, been missing.

In this Article, and in slight opposition to distinguished TWAIL scholar Bhupinder Chimni, we argue that the ‘failure’ of this redressing to occur lay not with TWAIL scholars but with the withering of the popular will needed to propel the reformative project forward. We further demonstrate that, when juxtaposed alongside the Bolivarian Revolution, a unique South American treaty known as ALBA offers TWAIL scholars their first real opportunity to actualise their reformative aspirations. While it has previously been argued that Latin American international lawyers employ international law in a unique manner, the breadth and scope of ALBA is far more significant, both for the TWAIL movement and international law reformers in general. In the Bolivarian Alliance for the Americas agreement (ALBA) we find a platform from which TWAIL might transcend its reactive nature and develop a proactive character. Building on a practical prototype that produced a participatory model of democracy and a progressive model of social relations, we argue that ALBA’s philosophy and substantive workings present the structure needed for the reinvention of international law along similarly equitable lines; from a formal regulatory regime to a substantive emancipatory paradigm, from a purely Eurocentric endeavour to one representative of the multitude of global society.