Professor Obiora Okafor, one of the leading Third World Approaches to International Law (TWAIL) scholars, discusses the continued significance of TWAIL to international law scholarship and practice. Professor Okafor is the York Chair in International and Transnational Legal Studies at the Osgoode Hall Law School, where he founded the Osgoode Research Seminar Series on International Law in the Global South and the Annual York University Oputa Lectures on governance in Africa. He is currently the United Nations Independent Expert on Human Rights and International Solidarity and a former Chairperson of the United Nations Human Rights Council Advisory Committee.
Flora IP (FI): As one of the leading experts in international law and one of the pioneering Third World Approaches to International Law (TWAIL) scholars, can you explain TWAIL, in simple terms?
Professor Obiora Okafor (OO):
TWAIL is an intellectual movement but also has a politics. What binds TWAIL scholars (TWAILers) is our commitment to producing international law scholarship that (i) uncovers how international law disadvantages the Third World and (ii) envisions ways to change or transform international law to accommodate the interests of Third World peoples.
FI: Why is TWAIL important to international law scholarship and practice?
OO: Hitherto, international law -the living law as it is experienced- has generally operated in a way that systematically disempowers, dispossesses and disadvantages the Third World. It is therefore important to adopt a TWAIL-ian approach to right the wrongs of the past.
The Third World
The Third World constitutes the vast majority of everyone on earth – almost 90 per cent. Karin Mickelson in her ground-breaking paper, ‘Rhetoric and Rage, Third World Voices in International Legal Discourse’ imagined the Third World as a chorus of voices. In a chorus, you have all types of pitches and voices. But in the best choirs, their songs come out harmoniously. China is not Botswana, Botswana is not Nigeria. Nonetheless, on most issues, these different countries have shared concerns, which is because they have a history of being subordinated in the same way.
The Third World is a label or name that is affixed to the peoples and the states in which those peoples live that have experienced particular kind of historical subordination at the hands of global power, where it is most intense or pronounced. The Third World is not a fixed geographic place. However, there is a remarkable consistency of those who self-identify as the Third World. The shared history of subordination provides a platform from which to address each other’s problems with the international order. There are material circumstances that have led to the broadly shared understanding of Third World peoples.
Although the Third World is not a fixed geographical place, as Upendra Baxi says in his piece (‘Upendra Baxi, ‘Geographies of Injustice: Human Rights at the Altar of Convenience’), there are also ‘geographies of injustice.’ As we speak, in the last say 100 years, the geographies of injustice are well known. They tend to be former colonies in Asia, Africa and Latin America. But there is also the notion that the Third World needs to be eased open to accommodate the South within the North.
Also, if you look at some of B S Chimni’s work, you see discussions about the North within the South. It is not a new concept because there has always been the concept of ‘comprador’ from Marxism. There is a South within the North and an emerging North within the South in that sense. However, I would argue, in line with B S Chimni’s position, that while there may be a North within the South, it is not the same North. There are differences in the features of North in the North and North in the South.
FI: In your paper: ‘Critical Third World Approaches to International Law (TWAIL): Theory, Methodology, or Both?’, you argue that TWAIL offers both theories of, and methodologies for analysing international law and institutions, but you suggest that TWAIL may be thought of as a broad approach, can you explain these arguments?
OO: In that paper, I was thinking aloud. The paper was written for a TWAIL workshop that Karin Mickelson, Ibironke Odumosu, Pooja Parmar and I organised. The workshop was organised to discuss certain TWAIL ideas. I decided to take the lead in writing the methodology paper that we would debate.
I started out by examining the conventional features of theories and methodologies. I tried to discover the extent to which TWAIL matches the features of these traditionally established theories and methodologies. What I found is that TWAIL can match the features of theories and methodologies.
TWAIL has rich variegation.
Some TWAILers are more oppositional than reconstructive. Some focus more on pointing out the problems with international law’s engagement with the Global South. Scholars like Joel Ngugi assert that TWAIL should be entirely oppositional (you cannot put old wine in new wineskins and expect it to taste any better.) He had a hard post-structuralist stand.
Conversely, BS Chimni takes the opposing socialist view. He has always insisted -and I have always agreed with him- that TWAIL should not merely ferret out the disadvantaging and dispossessing aspects of international law. Instead, TWAILers should imagine a new international law – a more just international order.
TWAILers are all united solidly by an ethical commitment to point out injustices against the Third World and to reimagine international law/order that will not dispossess or disadvantage the Third World. That is what binds TWAILers, to centre the Rest other than the merely the West.
The differences in TWAIL also exist in other recognised schools of thought. Remember my approach was to investigate the common features of other existing theories -for example, Marxism and Feminism- to find out how TWAIL fits with them. These schools of thought also have variegations and internal differences.
Considering that TWAIL is a looser coalition, a big tent, I concluded that it might be better to call it an approach, as it is a way of being, seeing, thinking and writing.
Rather than endlessly debating narrow positivist notions of theories or methodologies, we could refer to TWAIL as an approach.
FI: How can scholars interested in TWAIL learn to design TWAIL projects?
OO: Every theory, methodology or approach has a canon – there is a beginning point.
You have to ‘be committed to centre the Rest rather than merely the West’, ‘situate yourself in TWAIL literature’ and ‘be in conversation with the TWAIL literature.’
In a lot of my work, I am in conversation with Upendra Baxi, BS Chimni, or Balakrishnan Rajagopal. That is normally how intellectual schools or inquiries operate; TWAIL is no different. This is what I tried to do in my 2005 paper ‘Newness, Imperialism, and International Legal Reform in Our Time: A TWAIL Perspective.’ Looking at the TWAIL scholarship I was familiar with up to that point; I tried to isolate the analytic techniques and sensibilities -methodologies and methods- that the best TWAIL scholars deploy in their scrutiny of international order. Of course, many of those techniques will be familiar to other critical international law scholars, but does that mean that they are not TWAIL – No?
Building on the foundations of commitment to centre the Rest, situating oneself in TWAIL literature and being in conversation with TWAIL literature, techniques of TWAIL scholarship include the five outlined below.
First, is taking history seriously. This is crucial to TWAIL work, albeit not unique to it. TWAIL scholars map the techniques, devices and technologies used by global power in the past. You cannot recognise adequately what global power is doing today without understanding the past. If you have studied the past, you are better equipped to recognise it in today’s manoeuvres and operations of the law. In looking at history, TWAIL scholars look not only at continuity, but also discontinuity. Continuity and discontinuity exist simultaneously.
Second, in taking history seriously, TWAIL scholars take global history seriously. Not just the history of the West, but the history of the Rest. TWAIL scholars seek to write Third World’s shared historical experiences into the processes and outcomes of international legal thoughts and actions. For example, with intellectual property, questions to ponder include: historically, what was the relationship of intellectual property to the Third World? Was intellectual property used to extract resources? If I were to look at issues from the perspectives of Third World peoples, what may they think about intellectual property laws?
Third, TWAIL takes the equality of Third World peoples seriously. TWAIL insists that all thoughts and actions concerning international law and international relations should proceed on the assumption that Third World peoples deserve no less rights and dignity than the West. For example, a TWAIL examination of the arguments that international law should allow the ‘consensual’ transfer of toxic waste from the Global North to the Global South reveals how the law demeans and endangers the lives of the Third World peoples.
Fourth, TWAILers are informed by deep attentiveness to the history of the abuse of notions of universality and claims of common humanity which have licensed the subjugation, suppression and dispossession of the Third World throughout history. The early chapters of Antony Anghie’s book (Imperialism, Sovereignty and the Making of International Law) explain how that was precisely the technique the Spanish used in conquering Latin America. TWAILers are very suspicious of glib notions of universality. For example, Muthucumaraswamy Sornarajah (in ‘The Asian Perspective to international Law in the Age of Globalization’) says that ‘a lesson to be learnt [from Third World history]… is that one must beware of self-proclaimed universalists whose… reasons for taking universalist stances must be constantly scrutinized.’ Again, this is not peculiar to TWAIL.
Fifth, TWAILers study the resistance of Third World peoples to global hegemony. For example, some of your work (Titilayo Adebola) reminds me of that. Ways to resist intellectual property expropriation using formal legal techniques. How do you resist the deployment of the principles of law? Some TWAILers study resistance and techniques of resisting hegemonic laws.
The above is not an exhaustive list, but it covers examples of techniques used by TWAILers. Overall, TWAIL scholarship can be distinguished by its strong ethical commitment to centre the Rest.
To read more of Professor Okafor’s scholarly papers, see here.
Photo credit: Osgoode Hall Law School.
