Wednesday, January 9, 2019

Gathii: The Agenda of Third World Approaches to International Law (TWAIL)

James Thuo Gathii (Loyola Univ. Chicago - Law) has posted The Agenda of Third World Approaches to International Law (TWAIL) (in International Legal Theory: Foundations and Frontiers, Jeffrey Dunoff & Mark Pollack eds., forthcoming). Here's the abstract:

This chapter examines the first twenty-one years of Third Approaches to International Law Scholarship (TWAIL) from 1997 to 2018. It provides the first comprehensive attempt to count TWAIL articles, book chapters and books in that period and connects this scholarship to prior scholarship on international law from the Third World.

In so doing, it traces TWAIL’s varied origins and discusses its scholarly production in the last 21 years in Part One. In Part two, it discusses the main themes of TWAIL scholarship and the strands within them. Part Three discusses criticisms of TWAIL scholarship and makes responses to them.

The chapter argues that TWAIL scholarship has three major themes. First, how TWAIL scholarship traces the role of international law in constituting order and disorder. The second theme is the centrality of history in international law, and third, TWAIL’s commitment to reforming and remaking international law.

In addition, the chapter critically appraises criticisms of TWAIL scholarship. These are: First, some historians have charged TWAIL scholars with anachronism or ‘presentism’. Second, some mainstream international law scholars have argued that TWAIL scholarship is nihilistic and lacks methodological clarity. A third set of criticisms have argued in favor of expanding the subject of TWAIL scholarship to include themes such as indigenous peoples and hierarchical caste systems, so that TWAIL scholarship can capture other forms of hierarchies, particularly those that predate colonialism. A fourth criticism is that TWAIL’s resistance to international law scholarship and international law itself, occupies the same terrain as international law and as such it cannot offer an alternative.

Most importantly, this chapter shows that TWAIL scholarship provides a substantive critique of both the politics and the scholarship of international law, in addition to exploring the extent to which international law has legitimated global processes of marginalization and domination of the peoples of the third world, as well as how third world peoples and countries can overcome these challenges.