Teaching Karl Marx about Third World Approaches to International Law

What is the difference between a Marxist and a TWAILer (except for the class element)?

Julia Emtseva, Research Fellow, Max Planck Institute*

Posed on twitter, this question about Third World Approaches to International Law triggered a flurry of responses. ‘Many TWAILers are grounded in historical materialism’; ‘it’s about the ‘ultimate’ power relations…to TWAIL, it’s empire-colony, or race’; and ‘most TWAIL draws heavily from post-colonial theory where ideas of difference and othering are central to empire/imperialism.’

Twitter is not the ideal medium when reflecting on legal theory, especially when tackling one doubly rich in diversity and contestation. In the spirit of the deliberative ethos that denotes TWAIL, I’d like to respond to Julia’s question by contextualising the movement before centring it in a Third World episteme. 

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TWAIL has a short history—a single generation—yet it punches well above its weight. In academic disciplines, law has historically been the King Kong of conservatism. It still is in most universities, courts, professional societies, reading groups, films… you get the point. It couldn’t be any other way. Once we strip law of its holier-than-thou halo, we are left with a system of command and order that is most comfortable when drawing swords to defend the status quo. 

The class prejudice behind this impetus is both glaring and galling. In civilisational structures, elites are almost always responsible for codifying norms and rules of behaviour, and rarely does their own morality or material interests not lead the way. Only when disenfranchised classes push back, smash some statues, and behead a monarch or two does a novel elite arise to prescribe a new normal. And the cycle begins anew.

Consequently, jurists and publicists are often faithful formalists and universalists. They believe in the rules, even when they propose to use their expertise to bend or skirt those rules. Due process, procedures, and bureaucracy are beloved bedfellows. And this tendency holds whether the scholar is progressive or reactionary. Even the most committed human rights advocate—insert your favoured NGO—is besotted by the universalising ethos of the framework, snubbing the inevitable relativism upon which human dignity sits.

Though perhaps I am being too charitable toward international lawyers. Since Europe universalised itself, old white men scripted the study of international law in self-serving ways. Sometimes these men were rambunctious, and sometimes they were visionary, but mostly they were liberal, European, and Christian. And despite the clear partialities of Eurocentrism, these men were unafraid, so certain of their own version of events they told the story without doubt or compunction. In their universe, there was neither parochialism nor error: only misunderstandings and misinterpretations. I’ve always felt that European international lawyers operated with a bravado comparable to that of proto-fascists: ‘Never say anything too specific, and if you do, qualify it heavily so that you can always insist you meant the opposite.’

For example, I note the version of international law Europe circulated during the imperial-colonial-modern period never excused the murderous rampages Europe practised against others, at least not legally. Its proponents don’t even need to apologise—regrets suffice—for champions of this version treated enslavement, colonisation, and genocide of non-European peoples as extra-legal events. Alas, blood was spilled, but woe betide the scholar who succumbs to anachronism. (Our) international law did not prohibit any of these actions, meaning neither jurist nor law is to blame for the brutalities (we) committed. Jus ad bellum and jus in bello are ornamental if you consider the other side sub-human. These jurists spoke with such conviction that we now regard the doctrine of inter-temporality as an inviolable stalwart of the system, befuddling claims for reparations, or simple apologies. Speak with confidence, brook no criticism, and make the world in your own image and imagination. 

Until recently, this hagiographical account of international was the only tale on offer. We read Vitoria and Vattel, Grotius and Goethe, Westlake and Wesley, Lauterpacht and Locke, and the meaning of everything was meant to come into focus. It’s not that they excluded Marx, it’s that they didn’t include anyone else. Even today, Germany decides how it values the civilisation of the Herero and the Nama (it ethnically cleansed); Amnesty International condemns apartheid while rescuing occupation and colonisation; and permanent members of the Security Council speak as though what they say holds intrinsic value. 

As a fresh scholar learning our craft, I recall attending a colleague’s introductory lecture in public international law. When introducing me to their students, they belittled my research—not to mention my identity—describing me as someone who believes that colonialism is relevant to the constitution of the legal regime. Never have I felt the pen’s might as ferociously as I did in that moment. It is a given that this was the first and last utterance of colonialism in that course. While I suspect many publicists endorse my colleague’s dismissal of European predation as a foundational pillar of the regime, at least some scholars are less inclined. And I’m delighted that my belief in (anti)colonialism is shared by others, and has since metamorphosed into a scholarly movement now known as TWAIL. 

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Before it was a theory, before it developed its methods, and certainly before it became chic, TWAIL was a cri de guerre. Led by an insurgent and irreverent community of scholars, TWAIL pursued varied forms of subversion. Their aim was to liberate international legal scholarship from its Eurocentric straitjacket and use the academic platform to advance the emancipation of Third World peoples. For the legal academy, the birth of TWAIL was transcendental, bringing down the curtain on white supremacist mythmaking about jus gentium.

We are indebted to the pioneers. In Imperialism, Sovereignty, and the Making of International Law, Antony Anghie collapsed the moral foundations that European international law boasted of. Rather than notions of universality and equality, a dynamic of difference and of dehumanisation guided the regime’s architects. In War, Commerce, and International Law, James Gathii centred the powerful Euro-American interests that manipulated war and international legality in the name of mammon. Echoing Susan Marks, Gathii evidenced that immiseration is good business and international law a powerful ally when seeking to appropriate the resources of others. When teaching international law, I often reference Desmond Tutu. Though mostly ignored in the eulogies, Tutu said a lot about the perversions of European international law depicted by Anghie and Gathii.

“On what grounds do we decide that Robert Mugabe should go the International Criminal Court, Tony Blair should join the international speakers’ circuit, bin Laden should be assassinated, but Iraq should be invaded, not because it possesses weapons of mass destruction, as Mr Bush’s chief supporter, Mr Blair, confessed last week, but in order to get rid of Saddam Hussein.”

Desmond Tutu

Tutu’s TWAIL credentials were on point.

I should also salute Karin Mickleson for Rage and Rhetoric, Ratna Kapur for Gender and Sovereignty, Sundhya Pahuja for The Postcoloniality of International Law and, more recently, Babatunde Fagbayibo for Pan-African Epistemic, Henrique Weil Afonso for Age of Humanity, and Hiroshi Fukurai for Fourth World Approaches. With each new article, TWAIL verifies the existence of reflections on international law that originate outside the Eurosphere. My own database comprises hundreds of articles that crash against the boundaries of international legal orthodoxy. While a domineering Eurocentric epistemology still constrained most, a few broke free, probing the implications of non-European thought for the future of international legality. Without minimising the importance of Marx to critical legal theory, I say with confidence that TWAIL also verifies itself beyond the commitments of historical materialism.

Knowingly or not, TWAIL scholars developed methods of counter-narrative and critique to subvert the hitherto parochial and dehumanising ethos of European international law-making. For much of the regime’s history, its interlocutors spoke about and to Third World peoples. We could comply with or contest their representations, but in all instances, the terms of order were devised by European states and publicists. We were born into law, as Pahuja cleverly voiced. Even during the era of formal decolonisation, newly independent states were called upon to pledge fealty to the frame that, just yesterday, denied their rationality, normativity, or humanity, usually all three. I’ve always felt this specific demand of orthodoxy epitomised the regime’s contempt for Third World peoples: to gain acceptance, we must not only cohabitate with imperial predators, but prostrate before them, a hazing ceremony recast as the doctrine of recognition. It is no surprise that most anti-colonial scholars disparage monarchical honours bestowed upon their comrades by opportunistic empires (it is equally foreseeable that some embrace them).   

Despite the commendable inclusivity Malcolm Shaw and Jan Klabbers demonstrate in their textbooks when acknowledging critical approaches, neither European positivism nor European naturalism can narrate the stories of the Third World’s relationship to international law. It took TWAIL to make this banality obvious. Until the lions have their historians, the hunt will always be told from the perspective of the hunter. Reflecting Chinua Achebe’s aphorism, TWAIL established a platform where Third World peoples are no longer disappeared into the netherworld of extra-legality. The millions massacred by Europe are central to the story of international law. TWAIL speaks the names of the Arawak and the Taino, of the millions of Third World civilians annihilated by American, English, French, and German weapons of mass destruction, and of the hundreds of thousands of Algerians whose nameless memories fill La Seine, floating within sight of the pulpit at Notre-Dame. TWAIL centres European international law’s complicity in the demonic violence Europe visited upon Third World peoples. We also excavate Third World resistance to material and juristic oppressions. Across the centuries, we lived in opposition to the world-making ambitions of European international law. TWAIL is not just a method or a theory, but a praxis of re-remembering and re-humanisation. In vital ways, TWAIL allows us to honour our dead while forging space for our living.

In just one generation, TWAIL has made it uncomfortable for the white supremacist version of international law to roam unhindered. It no longer enjoys the freedom of the academy, and we confront it every time it tries to unburden itself of the blood of our ancestors, contemporaries, and unborn. Because of TWAIL, to teach international law without European histories of predation and Third World records of resistance, and without contemplating non-European epistemologies is to propagandise rather than to educate.

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What does this mean for Marxists? Historical materialism is constructive for TWAIL; of course, it is. Because of the global economy’s geo-political character and international law’s devotion to capitalist social relations, historical materialism provides a method for identifying practices of expropriation and exploitation normalised within the regime. Yet, Marx is inadequate when conveying the violence of the transatlantic slave trade and of colonisation, or of the damage wrought by white supremacy upon the cultures and minds and hearts of those denigrated within this ethno-chauvinist worldview. And, in line with TWAIL’s evolution, Marx is irrelevant when exploring Third world normativities, cosmologies, and epistemologies. TWAIL takes Third World iterations of international legal possibilities beyond the confines of historical materialism, creating space for experimentation with unique social imaginaries. To quote my favourite bard, TWAIL moved the centre. Just as the European-capitalist-liberal state is not universal nor benign, neither is the white male protagonist, whatever his proclivities. [Imagine what Marx could have achieved had he been exposed to Third World thought.]

To borrow from Cedric Robinson’s account of the Black Radical Tradition, TWAIL is borne of a collective consciousness informed by historical struggles for emancipation and being. And it is here that TWAIL starts hopping. Many anti-colonial scholars welcome Marx, while rejecting the Marxist tendency to shunt aside our histories. We are thinkers and scribes, we are dreamers and artists, we are visionaries and, frankly, we are soothsayers. Looking into the future, TWAIL envisions a regime of international law where the cultures and spiritualities that guide Third World peoples occupy centre stage in our shared legality. To many of us, the future of international law and of world order lies in Third World immateriality. And why shouldn’t it? We comprise most of the world’s peoples, we occupy most of the world’s lands, and our resources buttress most of the world’s wealth. Now that we’ve recognised the canard of European international law, TWAIL scholars are exploring Third World epistemologies with verve. Two examples spring to mind. 

At UCL, I am supervising several masters’ candidates, two of whom are pursuing TWAIL-inspired projects. Emboldened by the African Union’s conflict with the ICC, one student is researching Afrocentric conceptions of justice. They propose to build on Fagbayibo’s Pan-Africanism, to contemplate how international criminal justice would differ when conceptualised within African imaginaries. Since the ICC is obsessed with investigating criminality on our continent, the student presumes the meaning of justice to African peoples should matter. The second student is similarly motivated, reviewing the ICJ’s Chagos Islands decision. Despite Trindade’s use of TWAIL scholarship, this student is dissatisfied with his intervention. Following the lead of the feminist judgment project, they are re-writing the ruling from a Third World perspective, seeking to highlight where the ICJ succumbed to its Eurocentric predisposition. Each project is made possible by TWAIL, is steeped in TWAIL, and confronts TWAIL. And I don’t mind admitting that it is unlikely either student could explain historical materialism. 

Whether Marxists can make heads or tails of TWAIL is for Marxists to decide. TWAIL scholars are now exploring legality and life beyond what Europe understands or insists upon. To illustrate, returning to the doctrine of inter-temporality, some TWAIL scholars question the doctrine’s putative sacredness. We are told that property rights obtained by imperial powers and settler-colonialists during the colonial era are inviolable. Yet, redress and reparations for the crimes committed during this same period represent an affront to the rule of law. How does the Third World propose to deal with historic injustices and how can we codify their preferences in international law? This question will surely make Europe and formalists uncomfortable, but I’ve never been convinced that the perpetrator of civilisational violence should decide the relief thereto. It’s a complex proposition, to be sure, for we are trying to imagine a world beyond what we know.

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I conclude with a provocative passage from Robinson’s seminal book. He forewarned that ‘if we are to survive, we must take nothing that is dead and choose wisely from among the dying.’ To the chagrin of many orthodox international legal scholars, much of European international law is on life support. This was inevitable, for the regime was destined to collapse under the weight of its own contradictions. When we gaze beyond the rotting corpse, we find TWAIL, a movement that nourishes rather than dictates. 

TWAIL’s critical consciousness is vital to fashion an international law suitable to our era. Some of its scholars are preoccupied with internal renovations to the frame, and we applaud their determination. However, TWAIL’s more radical interlocutors are inspired by an avant-garde defiance, itself stirred by the eclectic and visionary attitudes Third World peoples display in the face of a brutal modernity. They embody the wonderful and enriching ecology of human intellect, spirituality, and creativity.**

Because of these peoples, I can proudly say to Julia and to others curious about TWAIL: Marx is significant, but if you wish to understand the transcendentalism of TWAIL, the Third World is a better place to start.

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* Thanks to Julia for approving the use of her name in this essay. 

** I explore these themes in depth in my forthcoming book, A Guerrilla at the Hague: TWAIL and the Future(s) of International Law (OUP, 2022)

Image courtesy of Nana Kofi Acquah.