Author(s): Tanmay Dhakras
Paper Details: Volume 2, Issue 4
Citation: IJLSSS 2(4) 22
Page No: 228 – 237
ABSTRACT
At the outset, a student of history as well as international relations can effectively submit that the scholarship of international law was relegated in its entirety to colonial despotic authorities of the west. The normative philosophy of justice was thus, uncomfortable to these regimes and hence, when the Third World; the rebels liberated themselves from colonial imperialism to emerge as post-colonial independent entities, the First world found alternative pathways to justify the abuses of history and the entitlements of the present. In a very typical and predictable act of imperial overreach, the First World, with its colonial underpinnings had suitably established an international law framework. Ironically, the International law framework wasn’t international at all. The dynamics of power and justice, became mere playthings and egregious disregard to newly independent states, which were supposedly not ‘civilized enough’ were still under indirect subjugation. The Third World, in response, sought refuge in the TWAIL perspective. Third World Approaches to International Law (for brevity, TWAIL) therefore, becomes a scholarly endeavour for protagonists of the ‘Third World’ rights. Although, existing scholarship provides a lot of novel arenas for TWAIL, the changing dynamics due to tenacity of the decolonised states, a new multipolar world emerges where even TWAIL goes through striking transition and not talked about enough. This paper shall explore this discipline. Here, the pre-condition to this work is that, this paper shall have to delve into present global accounts considerably yet focus shall also be on rekindling historical aspects as they form basis for TWAIL. Also, this paper shall further, examine the rise of India as a new voice for recalibration of TWAIL and the changing dynamics of power, it brings on the table for Third World interests.
Keywords: Third World, First World, colonialism, justice, post-colonial independent entities, protagonist, decolonised states.
INTRODUCTION
“Suddenly, the only thing left is justice” exclaimed Professor Cherif Bassiouni. This was in reference to the trial of the Iraqi dictator Saddam Hussein for crimes against humanity . The failure of the United States to find the weapons of mass destruction raised a substantial question about the credibility of not just the US Intelligence forces but the international law dynamics themselves. The inquiry into whether the war was justified falls outside the scope of our analysis, however, the power dynamics were very peculiar. While this intervention in domestic affairs of another country was not the first, Iraq war led to extreme criticism about its complete disregard to international law and its habitual assault on independent states . The basic premise here is that the colonial entitlement disorder gave rise to domination of international law framework as an entitled right to demarcate what constitutes as its structural syllogism. First and foremost, one must ask whence this ‘right’ derives . The flow of the discussions hence, emasculates deeply into the historical events which provides us, reminisces of the past congenital behaviour of exploitation of the Third World.
In the sequence of events, prior to the influence in shaping international norms have been a bloody and catastrophic tail of injustice and wreaking subjugation. The early period that defined international law was determined to be politically subservient to keeping the colonial framework intact and many variables such as religion , where it was justified that ‘colonialism is god’s will’, emerging from the predominant race aspect that justified ‘civilizing the savages’ , the appetence of natural resources supposed ‘curiosities; of discovering the world were considered crucial. These aspects will find special attention of this work arguing that these were the footings of subjugation. Further, the exploitation and slavery of Native Americans in the Americas, the Tribals of Africa and the colonization of Asia under the garb of trade practices was given jurisdictional mandate as well through ideas like terra nullis and thereafter, Doctrine of Discovery, a tainted effort to justify that European nations are entitled to territories discovered by them can be titled perfectly if there is uninterrupted possession and native Americans cannot hold the titles of the lands that are occupied by them .
During the World Wars, the squabbling European and American powers comprehensively leveraged the resource capabilities of their colonies unabashedly. However, the post-World Wars era, saw new battlegrounds and kept the supposed bipolar world at the edge for the Cold war was fought on many a frontier. TWAIL (Third World Approaches to International Law) saw its contemporary growth here. TWAIL became a response to decolonization and a medium to reinforce decolonized approach to legal frameworks . However, the scholarship provided by TWAIL in the 1960s and 70s was hinged upon imperialism and proclivities towards ‘historical oppression’ thematic. Therefore, the concept of TWAIL II was apprised. TWAIL II scholars rethought and enhanced the Third World tradition in international law by attempting to study international economic law to analyze new regime reacting to trade and investment inequalities . These arenas are a detailed introduction to perspectives of this paper. TWAIL II has been further elaborated by scholars like Partha Chatterjee , Professor B.S. Chimni, R.P. Anand and Professor Prabhakar Singh have developed what I call ‘Indian TWAIL II’, where they analyze India’s prospects with TWAIL II and its interplay with TWAIL I.
HISTORICAL PERSPECTIVE OF INTERNATIONAL LAW IN REGARDS TO THE ‘THIRD WORLD’
Building up on the above premise, imperial powers have been accused of following a specific inherent anthropological standpoint. Subversion was practiced from various aspects. To reiterate, those were, religion, racial superiority, appetence of natural resources and the discovery of the third world and its genuine stakeholders (native Americans were subverted and their lands captured). Herein, these premises become the basis of imperialism and despotism. Religion though being an uncomfortable premise, becomes the forefront of subjugation. A more fundamental argument that justified European expansionism in America, Australia and Africa was that the indigenous peoples were a dereliction towards their duty to God by not acknowledging their way of life .
The frenzy over this argument doesn’t disappear even in the 21st century. Pope Benedict XVI, addressing the Bishops of Latin America in Brazil on 13th May 2007, thanked God for bestowing the great gift of Christian faith upon the indigenous peoples. Its significance, he argued, consisted in the coming of that God whom their ancestors had been searching of, unknowingly, in their own religious conquests . Similarly, race has been one specific demarcation for ethnic violence and ultimately exodus. The social conceptions of race cannot be ignored because its visualization in international law framework is very conspicuous and it served as a very important function, for it determined the issue of membership with a family of nations . Therefore, the diversion of Critical Race Theory (CRT) and TWAIL cannot be ignored as subalternity framing is a crucial part of TWAIL and racial subalternity defines a central claim in CRT . An evidence can be observed in the heinous treatment of Native Americans during the advent of the colonial masters in the 15th century. William Denevan writes, “the decline of Native American populations was rapid and severe, probably the greatest demographic disasters ever. Old world diseases and population cleansing were the primary killer. In many regions, particularly the tropical lowlands, populations fell by 90%”.
The advent of real tragedies to international law began with the ‘New Imperialism’ period of the 19th century . The African lands were one of the last untouched regions by informal imperialism (wherein the European states were still randomly colonizing) . The wave of ‘New Imperialism’ in the late 19th century swept that away too. European states and non-state actors mainly used cession and protectorate treaties to acquire territorial sovereignty for an imperial establishment and property rights over land for establishing dominance. This age is called as Scramble for Africa . The Berlin Conference of 1884-1885, became the hallmark of a very initial yet successful international treaty, however, the natives suffered the brunt of slavery and destitute. The Western nations, led by Otto Van Bismark, Chancellor of German Empire, laid the final brick for effective occupation doctrine (principle of effective occupation) .
THE TROJAN HORSE OF INTERNATIONAL LAW AND WESTERN POWERS, THE POST-WORLD WARS ERA AND THE EVOLUTION OF TWAIL I
The era post the World War 1 saw the rise of the League of Nations. Perhaps an uninteresting era, where it was termed, that nations were not yet ready for such ideals and that the political dangers involved in forms of international cooperation under volatile conditions is difficult to say the least . However, events immediately post the Nazi surrender of 30th April 1945 (which marked the near-end of the World War II) are very noticeable. The division of Germany and emergence of West and East Germany saw the rise of a new world conflict which changed the International Law framework as well. The conflict called as the ‘Cold War’, emerged as a new frontier of battle, not directly but on other terrains. The Soviet Union and the United States (and allied), both colonial powers, considered real engagement with the Third World. However, the Third World states, now became fodder to chew and spit in the new daunting bipolar world, whose center was still the west . Another body of nations, the United Nations Organization were a new playground for the big powers wherein they simply changed the form of European hegemony, not its substance.
The era saw the realization by the third world that demarcation of interests is very important. Perhaps too important as the west was not regretful or compensating (not in monies and not in action) their colonial crimes . Therefore, the Third World scholarship began writing an alternative vision and that led to the development of the TWAIL tradition. The scholarship begins with the experiences of the cold war. The conflicts of interference of the European powers became a prerequisite of an impending conflict within the nations of the Third world which were newly independent . The Berlin Blockade wherein the Soviet Union blocked US aid to East Germany, the Korean War (1950-1953), the Vietnam War (1964-1975) and of course, the conflicts of the Middle East were all the rage inflicted by these pre-colonial establishments on the post-colonial world .
Therefore, the TWAIL tradition saw a surge in scholarship on each of these wars and the impending crises that it brought with the Third World always being at the receiving end of injustice. The fall of the Berlin War, perhaps gave rise to a New World Order . However, that order saw ascendancy of yet another hegemonic and consistently condescending regime while expert in preaching the hallmarks of democracy, all the while continuously violating its basic tenets by undermining and manipulating international institutions by making use of the Transnational Capitalist Class (TCC) and encouraging neo-liberal philosophy of global trans-capitalism controlled by pseudo-globalists . For instance, considering the case of Nicaragua vs. United States , the United States, disregarded the entire case as an inherently political situation and therefore, argued that it is beyond the jurisdiction of the International Court of Justice and got away with paying a hefty compensation to Nicaragua. The blatant flaw is, every case in front of the ICJ is an “inherently political situation” as it deals with states, diplomacy and international framework. That is why, the TWAIL scholars give a clarion call for change in approaches to international law to prevent the ‘process of privatization of international institutions’ .
CHANGING LANDSCAPE OF TWAIL
The new TWAIL perspective is exhaustive and far-reaching objective wherein the third world approach doesn’t find a singular expectation of anti-imperialism like TWAIL I, but a scholarship that engaged them in different imperatives and exploring the ways of securing real engagement with international law . For instance, examination of the concept of race and the CRT was a new and emerging concept for human rights scholarship in TWAIL II . TWAIL II scholars viewed the idea of different communities in the Third World as well, wherein it was observed that the Western model of subjugation violently destroying these communities and their marginalization was assertive. However, this idea gave a new face of study wherein TWAIL II scholars examined the question of how the moist disadvantaged and marginalized could represent and assert themselves through international law . Perhaps the economic channelization of the TWAIL perspective is to be credited to Dr. B.S. Chimni who, through his principles of subaltern internationalism (for brevity PSI), evolved policy frameworks such as regulations of MNCs, self-determined administrative practices, environmental regulations and addressing issues like carbon colonialism and commitment to extra-territorial principles of maintaining harmony between human rights and business activities .
As far as the Indian efforts of recalibrating TWAIL are concerned, the Indian experience has been evolving day by day. India has also led the discussion on Third World Approaches to International Law in its second phase or TWAIL II. Although the first wave of TWAIL appeared to be more interested in decolonization and critique of the colonial roots of international law, TWAIL II added economic justice, global governance, and human rights to the overall discussion. India’s role in these global legal debates has significantly influenced these dynamics, which have both portrayed the country as a critic of given global power structures and as a proponent of their reform. Some specific instances where the landscape of TWAIL II is being transformed by India are explored below.
India’s Stance on Climate Change and Equity: India is one of the most vociferous advocates for climate justice, and its role in international climate negotiation captures how perfectly TWAIL II is being reshaped. It has always insisted that the principle of “common but differentiated responsibilities” be adhered to, the principle that responsibility differs, and developed nations, who have contributed the most historically to climate change, share more of the responsibility for mitigation efforts.
India Critique of Global Trade Rules at the WTO: India has long condemned the functioning of international trade law, especially in the WTO, where such a mechanism does even more to benefit its developed counterparts at the Global South’s expense. Indian engagement within the WTO can thus be seen in the manner of TWAIL II-even in regard to unjust rules like those on agriculture, patents, and public health. An example debate on agricultural subsidies can be drawn. India provides subsidies and Minimum Support Price (MSP) to farmers of their country . Such subsidized farmers again prove to be unequal competitors for the developing world’s farmers. To date, India has not compromised on pressure in opening its agricultural markets further because it is really required to safeguard small and marginal farmers, which forms the back bone of the economy of rural India. The India access to essential medicines campaign is another very illustrative example. In 2001, it led the coalition of developing countries that was finally able to bring forth the Doha Declaration on TRIPS and Public Health, establishing the right of countries to override patent rights as a means of advancing public health interests in cases of health emergencies. This was a classic TWAIL II move: opposing the monopoly on patents by gigantic global pharmaceuticals and trying to make international law work for the poorest and most vulnerable people.
Human Rights and Indian Sovereignty: Declaration International human rights law has also been a sphere where India engages in TWAIL II dynamics. What it committed itself to at one level-by embracing human rights, it pushed back against what it frames as selective or politicized scrutiny by international bodies. Several times, India rejected external criticism of its policies toward Kashmir or on issues of handling internal security, framing such interventions as a violation of sovereignty. For instance, the sharp reaction that New Delhi displayed about the 2019 UN Human Rights Council report relating to Jammu and Kashmir for which it sought international investigations on allegations of human rights violations. The report was termed “fallacious, tendentious and motivated,” and said it was based on unverified information. This reaction was characteristic of the approach of TWAIL II by India: opposing what it perceived to be Western standards and interventions in the name of human rights while pitching for the cause of national sovereignty. This is the central theme of TWAIL II, which has rejected this kind of use of human rights rhetoric by great powers and institutions as an instrument of intervention. The posturing of India regarding its right to handle internal affairs without interference from abroad reflects a more general concern of TWAIL with international law’s propensity for double standards.
Reforming Global Governance and India’s Appeal for a More Interventionist Role: India had been at the lead of an initiative in governance by reform through the case that it presents that mirrors the reality of times globally, that structures of the world had not found any representation. This candidly comes out, especially in the crafting of the United Nations Security Council, UNSC and International Monetary Fund, IMF. This drive by India for a permanent seat at the UNSC is based on an argument that the profile of the body currently reflects the world order of 1945 and does not represent today’s reality, where rising economies like India play an infinitely bigger role in world affairs. India’s championing of these themes of greater inclusion and voice to the Global South in decision making finds renewed momentum from its stint as a non-permanent member of the UNSC during 2021-2022. Here, India is really pushing against structural imbalances in governance worldwide as the numerous international institutions do continue to marginalize the Global South on the basis of TWAIL II principles of their governance. India has been vocal in her demand for reforms in the IMF and World Bank, particularly with regard to the quota system that gives too much voting power to the Western world. India maintains that the new economic order does not represent the economic contributions of the emerging economies. Also, the G 20 push of India cannot be set aside. India’s push of African interests by including the African Union in the G 20 as a sign of mutual respect and willingness to engage, definitely gives some essential boost to Third World concerns.
CONCLUSION
The subaltern struggle perhaps is a key narration of the six distinct visions of the world order seen by Professor Chimni in political discourses in India. They are, the establishment, left, dalits, subalterns, anti-modernist and spiritual . There have been arguments to include the seventh tale, the Tribal population of India . Each of these strategies highlights the complexities involved with power, oppression, and resistance; it brings to the foreground how historical injustices can become pressingly related to realities today. The establishment finds stability and economic growth precariously strong over the issues and concerns of marginalized communities. The left focuses solely on class struggle, forgetting crossroads of identity within subalterns and tribal populations. The concept of the Dalit movement always contests the caste system and demands social justice. The anti-modernist vision insists on a critique of the known detrimental effects imposed by the very idea of development, pleading for the protection of cultural heritage, and the spiritual angle invokes a holistic understanding of human existence-subsidiary to materialism. A case of a seventh vision, tribal populations: their different issues and the need to have their voices in political discourse. In both stories together, there is a call to transform international legal instruments to make room for the many different experiences of the oppressed and therefore establish the just order of the world based on social justice and respect for culture. The call is simple according to me, the Third World can chart its own course.