Everything You Ever Wanted to Know About TWAIL (But Were Afraid to Ask)

My friend and former colleague at Auckland, Mohsen Al Attar, has posted two new articles about TWAIL on SSRN.  The first, co-written with Rosalie Moore, is entitled “TWAIL Revisited – The Bolivarian Reconstruction of International Law.”  The second, co-written with Vernon Ivan Tava, is entitled “TWAIL Pedagogy – Legal Education for Emancipation.”

The abstracts are after the jump.  I highly recommend them!  (I’m looking at you, law review editors.)

“Bolivian Reconstruction”:

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. 

“TWAIL Pedagogy”:

Earlier this year, Galal Nassar asserted that universities, once the “guardians of debate and intellectual freedom”, were quickly becoming places “where young people learn how to keep their mouths shut.” In this he is correct and though it might at first appear counter-intuitive, Western law schools have been leading the reformative charge. As Duncan Kennedy demonstrated nearly thirty years ago, law lecturers, for both self-serving and self-legitimating purposes, employ methods and foster teacher-student relationships that encourage fealty to ensconced equations of power. Legal education, Kennedy bemoaned, bequeaths not merely a qualification but also an ideology and a worldview, both of which buttress the preeminent standing of established hierarchies. This is particularly worrisome from a Third World perspective for some of the more insidious hierarchies that students subtly learn to accept exist between the First and Third worlds. Though explicit efforts to inculcate students with the racial rankings of the colonial era are uncommon, the facileness with which legal academics disregard this historical record relegates it to the bin of past injustice implicitly making it irrelevant to modern legal education. Not unlike with the teaching of municipal law where class stratification is presented as inevitable, First-Third world divisions acquire a similar innocuousness, a perception that does not lend itself to the questioning of the agent-subject relationship that persists between the two blocs in international lawmaking.

In this article then, we explicate, from conceptualization to practice, the theory behind and the use of an alternate pedagogy – derived from the work of Third World Approaches to International Law (TWAIL) scholars, of Paolo Freire, and of Ngugi wa Thiong’o – in the delivery of a course on international law in a mainstream Western law school. We argue that this approach has enabled students to familiarize themselves with critical legal theories, to experience a dialogic and democratic approach to teaching and learning, and to reflect on the place of justice in international law, a series of achievements unlikely within the conventional banking model. The authors do not claim to offer a definitive account on the teaching of international law. Emancipatory initiatives are neither exclusive nor exclusionary and we would not advocate the adoption of a single teaching method. Instead, what we put forward is both a theoretical and a practical examination of the application of a TWAIL-inspired approach to legal pedagogy. This pedagogy, we argue, is very effective in acquiring a nuanced understanding of international legal matters, developing a wide range of practical skills, and nurturing awareness of the harmful outcomes international law produces for the Third World. It is hoped, and only time will tell, that the understanding, skills, and awareness the students acquire will manifest outwardly into a deeper social consciousness and a meaningful desire to struggle for a just international legal order.