Cross-fertilization of Westphalian Approaches to International Law: Third World Studies and a New Era of International Law Scholarship

• Citation: Vol. 34 No. 4
• Publication year: 2020

Cross-Fertilization of Westphalian Approaches to International Law: Third World Studies and a New Era of International Law Scholarship

Fozia Nazir Lone

CROSS-FERTILIZATION OF WESTPHALIAN APPROACHES TO INTERNATIONAL LAW: THIRD WORLD STUDIES AND A NEW ERA OF INTERNATIONAL LAW SCHOLARSHIP

Fozia Nazir Lone^*

Abstract

The positivist normative content of Western international law was developed among powerful Western states and later extended to non-Western states. Within this contextual framework, it is argued that Third World Approaches to International Law (TWAIL) scholars, in their criticism of international law as a colonial product, extended it beyond the classical approaches adopted by the nineteenth-century positivist scholars. Critical Legal Studies (CLS) scholars provided a conceptual foundation for TWAIL to demystify the enigma of colonialism, showing it to be foundational to international law rather than its byproduct.

This Article explores the possibility of creating new legal paradigms in the changing global context and looks at what it means for Chinese and Indian leaders and scholars to have a TWAIL attitude. In this process, emphasis is placed on the importance of scholars adopting a multidisciplinary approach to fully understand international law in general, as well as to appreciate new Asian paradigms.

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Introduction: Peripheral Positioning of TWAIL Scholarship within the Framework of the Positivist Tradition of International Law..............................................................................................................957

I. Unearthing TWAIL Scholarship................................................964

A. A Brief History.......................................................................... 964
B. TWAIL Perceptions .................................................................. 967

II. Cross-Fertilization of Westphalian and Eastphalian Approaches to International Law - TWAIL v. CLS................972
III. The Rising Asian Third World States and the Emergence of New TWAIL-Inspired Paradigms in the Discipline of International Law........................................................................979

A. A Brief Overview of Chinese and Indian Views on International Law ........................................................................................... 979
B. A Journey to Find a Desert Oasis: Euphoria, Fears, and Limitations................................................................................ 983

Tentative Conclusions - A Call for Adopting a Multidisciplinary Approach....................................................................................................991

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Introduction: Peripheral Positioning of TWAIL Scholarship within the Framework of the Positivist Tradition of International Law

International law, as established by international legal theory, has evolved over the centuries through the efforts of various scholars, who adopted varied methodologies to analyze its substance and efficacy. The various international law approaches, such as the classical approach (naturalism, positivism, and the Grotian school), the international relations approach (realism, liberalism, etc.), and social sciences methods (New Haven School, Critical Legal Studies, Feminist Legal Theory, Third World Studies, etc.), have given rise to a fair amount of legal scholarship.¹ Hence, the task of understanding international law remains tied to divergent schools of thought, various approaches, and different methodologies.

Many of the unresolved controversies of international law are rooted in the classical positivist approach to normative content of doctrines such as sovereignty, territory, independence, jurisdiction, self-determination, etc. In this discourse, colonialism was seen to be a consequence of the interaction between a European sovereign and a non-European entity, where the former was exercising its sovereignty, which the latter was deemed not to possess.² Under this positivist jurisprudence, sovereignty gave legal competence and absolute rights to a European state, making it independent.

For Third World Approaches to International Law (TWAIL) scholars (also referred to as TWAIL-ers), the historical and theoretical indifference of this positivist approach towards non-European entities needed examination. It questions these normative premises of the discipline and highlights the need to look at geopolitical explanations for the current situations faced by post-colonial states, with locally beneficial solutions, rather than leaving the burden of applying a standardized international law with the states themselves.³ The state sovereignty doctrine remains central to the existence of international law and "international law governs relations between independent states," and

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"restrictions upon such independence cannot therefore be presumed."⁴ sovereignty provides legitimacy to states and facilitates the creation of international rules based upon their own sovereign will.⁵ Before the second World War, international law was a European creation and was meant only to regulate relations between European states. Within this framework, scholarly dialectical discussions took place to elaborate the content of statehood and sovereignty beyond European states.⁶ Indeed, the classical positivists did not consider non-European civilizations and societies in the Americas, Africa, and Asia worthy of membership in the Westphalian system; which then justified conquering and colonizing the Third World.

The idea of sovereignty appeared in the works of Grotius, Vitoria, and Gentili,⁷ whose legal interpretations gave rise to a secular narrative on natural law.⁸ Grotius argued that natural law retained validity even without religion, and that states are bound by moral rules. They believed that these narratives are instrumental in understanding the general foundations of international law.⁹ On the other hand positivist scholars, such as oppenheim, argued that the source of sovereignty was the state, and promoted ideas such as international society and the balance of power to generate the required conditions for creating international law that supported the European states.¹⁰ The positivist narrative

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created European state-centered international law and Asian and African states remained outside of it; as such, within this narrative, there was no formal legal framework to regulate their relations.¹¹ The legal imagination of positivist theorists therefore legitimatized the conquest of the non-Western world as morally acceptable.¹² over the last few decades, international scholarship has moved on from understanding the question of states' obedience within international law towards policy-oriented approaches that criticize contemporary rules and outline the conditions for derivations rather than to manage international problems.¹³ Academics have remained preoccupied, in every generation of international scholarship, in determining the creation of order among sovereign states.¹⁴ Kennedy notes, "Most historians who treat primitive texts do so in a way which both presupposes and proves the continuity of the discipline of international law—reaffirming in the process that the project for international law scholars is and always was to construct a social order among autonomous sovereigns."¹⁵

TWAIL began to develop within this sovereignty-oriented framework, and after the UN accelerated the decolonization process. The TWAIL scholars took a critical attitude towards prevailing international orthodoxies while still remaining a part of the development of international law. Buchanan clearly emphasizes the challenge TWAIL places on the traditionally-constructed idea of sovereignty and its approach to social movements and people coming together to find greater agency.¹⁶ TWAIL scholars have also focused on the history and theory of international law as well as written on human rights law, use of force, trade law, investment law, etc. While discussing these themes they have argued that the persistent feature of international law is the continuance of imperial policies by powerful states that seeks to transform the internal character of various Third World societies.¹⁷

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In revisiting international law concepts, TWAIL scholarship has made the colonial encounter between Europeans and non-European states its central theme, which goes beyond examining the involvement of the Third World in the creation of international law. As such, TWAIL offers a democratic approach that lets scholars explore deeper questions about how justice can be achieved in the contemporary international legal order.¹⁸ By taking this approach, TWAIL scholarship reformulates the acceptance of colonial encounters within international law as a fundamental feature, and challenges the mainstream positivist indulgence that treats the colonial legacy within the discipline of international law as a closed chapter that theoretically ended with decolonization.¹⁹

The TWAIL approach to international law has been criticized and described as insufficient because it doesn't challenge international law radically enough since it "ultimately operates according to the very disciplinary logic it seeks to overcome."²⁰ Some deeper critiques include those of Bonilla, who challenges constitutionalism on the basis that legal systems in the Global south are considered as reproducing that of the Global North and that the Global South has been dismissed and considered backwards.²¹ This approach of challenging whether the norms that the Global North apply to their countries should apply to persons in the Global south allows for a degree of exploration, but it is worth bearing in mind Parmar's caution: that exploring such ideas should coincide with emphasizing the need to understand and challenge the sources of human suffering.²² It may therefore be important to distinguish critiques of power structures with...