My Summer Vacation (Part III): Revisiting TWAIL in Paris

In the same month that I traveled to Barcelona, I went to Paris to attend a conference organized by Paris I Professors Emmanuelle Jouannet and Hélène Ruiz Fabri and Professor Mark Toufayan of the University of Ottawa. According to its organizers, the purpose of the symposium, on “The Third World Today: Assessment and Perspectives,” was to “evaluate the situation of contemporary legal thought on the Third World” taking special account of the contribution of “Anglophone internationalists” who founded the Third World Approaches to International Law movement (TWAIL). The conference program suggested that the French and English international law academies had diverged with respect to the study of the Third World: whereas interest in the topic had waned in France, it continued to flourish at least within TWAIL. The purpose of the conference was accordingly to “re-launch reflection on the Third World in France from an independent and critical perspective” that would assist French scholars who want to reexamine contemporary international law “in order to recreate a critical legal humanism making the individual the ultimate beneficiary of international law.”

Who could resist participating at a conference with such a normatively packed agenda in such a city and with such an interesting (and decidedly diverse) assortment of participants?

The principal presenters at the two day event, a veritable “who’s who” of TWAIL scholars — including Antony Anghie, Buphinder Chimni, and Balakrishnan Rajagopal — faced off with prominent academic commentators based in Europe and beyond. My role, along with that of Georges Abi-Saab, ICJ Judge Mohamed Bennouna, and Professor Vasuki Nesiah (now of NYU), was to provide closing remarks. As part of our assignment, all of us were given as homework prominent TWAIL scholarship to read or reread.

As my closing remarks suggest (see What is to be done?), the organizers’ notion that TWAIL scholarship was worth re-examining given the contemporary challenges facing both the Third World and international law paid off handsomely. I argued that, like the good wines that we were served during the symposium by our gracious hosts, the central insights of TWAILERs have legs: they have, for the most part, withstood the test of time. Chimni’s opening remarks at the conference, which distilled ten central TWAIL tenets, had the elegance (and resonance) of Moses’ commandments. (They included, most controversially, a commitment against any form of violence.) My own remarks – perhaps inspired by Mel Brooks’ memorable dropping of one of the original three tablets in his immortal The History of the World Part I – further distilled (or cheapened?) these to five.

I suggested that TWAILERs have provided us with five abiding insights: (1) that colonial patterns of thinking persist and continue to structure our international law sources and foundational concepts; (2) that the “civilizing mission” continues to drive, often to ill effect, current legal phenomena (from the turn to international organizations to concepts like “good governance” and the responsibility to protect (R2P)); (3) that racism and misplaced notions of cultural superiority continue to obliterate the contributions of and concerns expressed by non-Europeans; (4) that commercial/economic concerns, including Marxist notions of “class,” remain central to understanding our legal regimes; but that (5) contemporary forms of globalization have rendered geographically based notions of “imperialism” or “hegemony” overly facile in understanding the Gramscian forms of collaboration that now characterize the “Third World” itself.

My largely laudatory closing remarks about TWAIL were partly inspired by what occurred at the conference. Many of the commentators, particularly those based in Paris, were skeptical that TWAILERs had much to contribute either with respect to any “rethinking” of Third World concerns or with respect to the larger humanistic program anticipated in the symposium program. The criticism of TWAIL by some of the European-based scholars fell into two strands. TWAILERs, it was suggested, brought nothing new to the table that had not been anticipated by others, including those closer to the 1960s’ struggles for decolonization and economic independence from the West. On the other hand, it was also suggested that TWAILERs’ radical deconstruction of international law, like the crit movement of which it was a part, was nihilistic, disinterested in the kinds of pragmatic reforms that remain relevant, and ill-suited to the needs of practice. One professor questioned the relevance of TWAIL for academics at the Sorbonne who needed first, to weed out students not qualified to continue to study law and second, to distill practical real world legal skills that would enable graduates to pass the professional examinations that would permit them to become lawyers. My own (mis?) understanding of these criticisms might have been due to the difficulties of simultaneous translation but it appeared to me that these twin concerns were contradictory, especially when uttered by the same commentator. Either TWAILERs were rehashing old insights or they were too radical to be of use; to suggest that they were doing both seemed a bit unfair. It also seemed ironic to castigate TWAILERs for inspiring criticisms of international law that were difficult to encompass due to the structures of the European or French academy or the (narrow?) role allocated to legal training (particularly when this begins with undergraduates). One alternative would surely be to use TWAIL (and other critical insights) to suggest reforms to the academy or even, God forbid, to the sacred traditions of the Sorbonne.

Under the circumstances I sought in my remarks, presented as a “fellow traveler” but not a card-carrying member of TWAIL, to suggest why their insights had contemporary resonance and why what they had to say should matter to those interested in real world legal practice. To this end, I suggested that the five TWAIL insights enumerated above provided a new vantage point from which to study three contemporary characteristics of public international law: the increasing turn to treaties – what some have dubbed its “treatification;” the rise of non-state actors; and the proliferation of international courts and tribunals (“judicialization”). TWAILERs made us skeptical of the progress narratives that usually accompany descriptions of all these developments – all of which mattered deeply to the practice of international law. I suggested that TWAILERs exposed the alleged benefits of treatification, of the enhanced power of non-state actors, and of the turn to judicialization to the harsh light of day, exposing the power dynamics that render each of these of dubious benefit to ‘the wretched of the earth.’ I also suggested that those looking for a specific set of normative reforms from the motley collection of scholars who self-designate themselves as TWAILERs’ were looking for the wrong thing in the wrong place since the critical mindset towards the status quo – the subversive act of re-imagination that is the essence of TWAIL –is precisely what it brings to the table. I suspect that my brief remarks came off as a predictable, ringing endorsement of this “Anglosaxon” school of thought.

What I did not lay out in my original remarks but will state here now, en famille, were other, more serious criticisms of TWAIL suggested by that symposium. The first and most evident challenge concerns the difficulties of constructing a movement or school of thought around a concept – “The Third World” – that, if it ever existed, no longer does, at least not as an identifiable geographic space on which all agree. Does the TWAILERs’ “Third World” include the BRICs, for example, countries who seek to protect their foreign investors abroad perhaps as much as the United States or Europe? It is true that TWAILERs would be the first to “problematicize” the concept of the “Third World” and would be the first to suggest that the original “Group of 77” now has as many fissures within it as between them and the mythical monolithic “West” or “North.” But there is still the basic difficulty that the “Third World” as reality and concept has considerable historical baggage and it is not always clear how much of it TWAILERs want to discard. Some TWAILERs apparently still wish to define their interests as centered on a certain group of nations outside of North American and Europe, whether these are described as “the Third World” or the “Global South.” Others suggest a focus on the disadvantaged, including minorities or other groups within developed countries – what some scholars have called “the subaltern.” For the latter, TWAILERs, as a movement, are united by the need to “take suffering seriously”—whether it occurs on the streets of New York or Mogadishu.

A second, related problem for TWAIL was unintentionally suggested by TWAILERs themselves at the conference. Most of them suggested that their scholarly movement distinguishes itself from David Kennedy’s New Approaches to International Law (NAIL) precisely because, unlike NAIL, TWAILERs are open to all comers, whether crits, feminists, NAILERs or Post-NAILERs, inter-disciplinarians and even the Yale School adherent who strays from the fold. It was suggested that, unlike some prior critical movements that have swept the U.S. academy, TWAILERs are less interested in setting themselves apart, that is, in self-definition by exclusion of others. Their very diversity remains a source of pride. All this is fine as far as it goes but it raises the evident concern of an overly expansive “big tent” – so open to diverse views that it loses its core. The size of TWAILERs’ big tent may also explain why the movement is not yet associated with a particular set of policy prescriptions (whether or not radical or revolutionary), although some of its scholars individually have advanced their own.

The third set of concerns emerges from the first and second. To paraphrase Freud, it is not clear what TWAILERs want. The urge to “take suffering seriously” is a vague platform. Consider a question from real world practice that has emerged in the course of my role as special adviser on public international law for the Prosecutor of the International Criminal Court. That court, as is well known, has issued indictments against high level officials of the government of Sudan, including its chief of state. The Security Council has, to date, ducked all pleas by the ICC Prosecutor to assist the Court in enforcing these indictments, even though the Council could easily do so under its Chapter VII authority, including its existing sanctions regime for the Sudan under Security Council Resolution 1591 (2005). What would TWAILERs’ advice be if asked by a member of a Security Council for advice?

The question presented approaches the ‘third rail’ of TWAIL thought. We heard much at this conference from TWAILERs suggesting that under no circumstances would a self-respecting TWAILER urge Council members to adopt sanctions in aid of these indictments. This would mean using the world’s foremost “hegemonic” institution, subject to a voting system and membership that owes much to colonialism and notions of cultural superiority, in defense of the judicial rulings of another flawed, treaty-based institution, whose very raison d’etre is grounded in conceptions of transitional justice that owe a great deal to TWAILERs’ despised “civilizing mission.”  Moreover, the desired action would use the Council’s blunt power against an all too predictably poor and globally disempowered African nation, and, if travel or assets freezes are the preferred tools, through methods that TWAILERs have properly noted often hurt most those they are intended to help. As if all this was not bad enough, the underlying indictments sought to be enforced are the typical short-sighted actions of an international community that unduly focuses on criminalization after the fact instead of the wider causes (and culprits) that explain (and might have prevented) Sudan’s genocide. (I am acutely familiar with such arguments having made many of them myself. See José E. Alvarez, “Rush to Closure: Lessons of the Tadic Judgment,” 96 Mich. L. Rev. 2031-2112 (1998); José E. Alvarez, “Crimes of States/Crimes of Hate: Lessons from Rwanda,” 24 Yale J. Int’l L. 365-483 (1999).)

All of these reasons would suggest that TWAILERs, if they are faithful to their scholarly roots, would advise continued Council inaction even though the Security Council itself started the process that led to the ICC’s indictments. And such advice would appear to be consistent with at least the official position taken by certain African institutions and a number of African governments to date (see, e.g., here).

And yet, am I the only one who finds the prospect of continued Council inaction and advice to that effect immoral? If this is what TWAILERs want, how is this consistent with their touted concern for “suffering”? Even if the Security Council and the ICC are neo-colonist institutions, given the alternatives – including the very likely possibility of continued impunity and of continued rape and slaughter directed by persons who continue in power – shouldn’t the advice be to use the Council to impose costs on those who would continue to protect such persons or give them sanctuary? I, for one, would not hesitate in asking the Council to do the right thing and for all my criticisms of the European positivists at the Paris conference, I suspect that most of them would find ample legal authority in the UN Charter for the Council to take the desired action. I would hope that TWAILERs would do the same – but the problem is, I am not sure that they would . . . .