As I have previously mentioned, I have recently acquired a supreme interest in Third World Approaches to International Law (TWAIL). It all began with Antony Anghie’s book Imperialism, Sovereignty and the Making of International Law. I had been meaning to buy the book for a while, but only actually did it when I was out with a friend (which probably tells you something about me) and decided to go on a bit of a random book buying exercise (I also bought David Harvey’s Limits to Capital). So anyway, for those of you who are uninitiated in the world of international legal theory, I thought I’d talk about TWAIL in general and Anghie’s book in particular.
As a movement TWAIL isn’t just characterised by geographical or national location, instead TWAIL scholars are those who articulate a given political and theoretical visions, one which is seen as the view of the Third World. Makau wa Mutua – another TWAIL scholar, has produced a useful definition of the current crop of TWAIL scholars:
TWAIL is driven by three basic, interrelated and purposeful objectives. The first is to be understand, deconstruct, and unpack the uses of international law as a medium for the creation and perpetuation of a racialized hierarchy of international norms and institutions that subordinate non-Europeans to Europeans. Second, it seeks to construct and present an alternative legal edifice for international governance. Finally, TWAIL seeks through scholarship, policy, and politics to eradicate the conditions of underdevelopment in the Third World.
I have problems with the second and third objectives – because it strikes me that these two objectives are parasitic upon a theoretical exploration but I’ll return to this later. What I think is useful about this definition is that is sets out rather nicely the central theoretical issues for TWAIL – which essentially concerns the way in which international law has been implicated in the subordination of the non-European Third World to the European first world. Whilst the terminology may not be something I’m entirely comfortable with many of the insights of TWAIL are incredibly useful.
Antony Anghie’s vision of international law is a very interesting one. The starting point for Anghie is a critique of the vast majority of international legal theorising. Anghie notes that for most expositions of international law the starting point is the problem of order amongst sovereign states, but the problem with this position is that it ‘cannot illuminate the prior question of how certain states were excluded from the realm of sovereignty in the first place’. Instead Anghie argues that ‘sovereignty’ was forged in the ‘colonial encounter’, and this dynamic has informed international law ever since. The particular shape of this dynamic is summed up quite nicely by Anghie in the introduction to his book:
International lawyers over the centuries maintained this basic dichotomy between the civilized and the uncivilized, even while refining and elaborating their understanding of each of these terms. Having established this dichotomy, furthermore, jurists continually developed techniques for overcoming it by formulating legal doctrines directed towards civilizing the uncivilized world. I use the term ‘dynamic of difference’ to denote, broadly, the endless process of creating a gap between two cultures, demarcating one as ‘universal’ and civilized and the other as ‘particular’ and uncivilized, and seeking to bridge the gap by developing techniques to normalize the aberrant society.
What is really interesting about Anghie’s book is the way that it draws out the paradoxes in international law. Every time that international law has extended its reach so as to include the Third World this inclusion has come at a price, it has always ended up excluding the Third World in a meaningful way. The rest of Anghie’s book is concerned with mapping the dialectic of inclusion/exclusion onto the history of international law.
I don’t really want to go into a really deep analysis of Anghie’s historical work, but I do think it’s interesting to trace how the dynamic of difference plays itself out. Anghie first examines the work of Francisco de Vitoria, a man often referred to one of the founders of international law (or at least proto-international law). Vitoria’s work arose in the context of the legal issues surrounding Spanish relations with the native ‘Indians’. In marked contrast to his contemporaries Vitoria was willing to extend legal recognition to the Heathen Indians. Vitoria argued that since the Indians possessed reason (again a clear advance) they could partake in the ius gentium – the natural international law that creates a series of reciprocal rights and duties. However, the content of these rights and duties is central, the ius gentium gave the Spanish the right to ‘travel’, ‘sojourn’ and trade in the Indies without molestation and this – as Anghie argues – is the crux of the matter:
While appearing to promote notions of equality and reciprocity between the Indians and the Spanish, Vitoria’s scheme must be understood in the context of the realities of the Spanish presence in the Indies. Seen in this way, Vitoria’a scheme finally endorses and legitimizes endless Spanish incursions into Indian society. Vitoria’s apparently innocuous enunciation of a right to ‘travel’ and ‘sojourn’ extends finally to the creation of a comprehensive, indeed inescapable system of norms which are inevitably violated by the Indians.
Thus, although universality to extended to the natives, what is universalised are an idealised version of European internal life. Further, the very extension of this universality to the natives provides a justification for continual European excursion into the Indies. Anghie further notes that since – in Vitoria’s vision – only Christians could wage a just war, the Indians were further deprived of their sovereign power.
Anghie next traces this development in the 19th century positivist theories of sovereignty. Essentially, the 19th century positivists wanted to create a ‘science’ of international law. Since they rejected the centrality of Christianity to sovereignty it was necessary to find something else in which to ground it. In this respect the positivists necessarily turned inwards, to the internal character of the polity. The positivists used the criterion of ‘civilisation’ or society as the primary determinant of sovereignty. This model of ‘civilisation’ was essentially that of European civilisation. This had the effect of systematically excluding the non-European world from the universe of international law.
Since the positivists had completely stripped the non-European world of sovereignty it became an area in which the sovereignty doctrine could develop freely. However, Anghie notes that the 19th century states paid little regard to the precise doctrines of the positivists, instead they concluded treaties and agreements with numerous ‘natives’. In order to explain this international lawyers were forced to develop complex gradations of civilisation, whereby different levels of civilisation would entail different levels of sovereign powers. In practice of course these gradations were merely reflective of the needs of the European powers. It was the case that non-European powers could become sovereigns, but this would necessitate a massive internal social transformation. Again then, universality was coupled with exclusion as it ‘presented non-European societies with the fundamental contradiction of having to comply with authoritative European standards in order to win recognition and assert themselves’.
Thus the dynamic becomes ever more transformative. This is further actualised in the Mandate System of the League of Nations. This system envisaged that under the ‘tutelage’ of European nations, backwards non-European nations might be transformed so that they could ‘stand’ on their own. The Mandate System assumes a central role in Anghie’s analysis, but having been detailing it for dissertation I really don’t want to rehearse it here.
Perhaps my favourite example of the inclusion/exclusion dialectic is Anghie’s examination of the result of decolonisation. Essentially, here the newly empowered Third World attempted to flex its legal muscles. However, its initiatives were stopped in their tracks by several legal doctrines. Firstly, the role of the General Assembly in making law was severely curtailed (the General Assembly being the most representative aspect of the UN). Secondly, it was held that new states were bound by the already existing legal doctrines of customary international law. Finally, the formation of custom cannot come about without near universal agreement among states. The developed world was never going to accept the ambitious economic and legal plans of the Third World – since it contradicted their fundamental interests. Thus, it was that the newly emerged Third World was locked into a system of legal relations that were forged in the colonial period, that it had no part in making and that it had no chance of changing. The inclusion of the Third World in international law excluded the Third World from any meaningful participation:
The contradiction was that even while the West asserted that colonialism was a thing of the past, it nevertheless relied precisely on those relationships of power and inequality that had been created by that colonial past to maintain its economic and political superiority which it then attempted to entrench through an ostensibly neutral international law.
Anghie goes onto describe how this dynamic is reproduced by international financial institutions and the war on terror (the latter being – in my opinion – the weakest part of the book) . Again I think he makes a fairly convincing case for these continuities.
Anghie’s book is a masterpiece. That’s it. It is the first book I have read that shows international law’s dark history, and it’s worth reading for that alone. I also think that Anghie’s analysis of the ‘dynamic of difference’ is an interesting and convincing one – that helpfully undermines some of the more ambitious claims of international law and international lawyers. This being said I have some real issues with Anghie’s work. My critique of Anghie’s work is structured by two basic ideas, each of which runs against each other.
Firstly, Anghie has an under-theorised conception of resistance in his work. He briefly considers it in relation to Vitoria, but there isn’t much anywhere else. This strikes me as unsatisfactory. In Anghie’s book there are occasions in which the Third World seems to merely be the passive object of the colonial powers. As one of my classmates has argued, this seems to produce the very assumption that TWAIL would want to fight – that of the Third World as passive victims to whom stuff happens.
However, my second critique would undermine this somewhat. I don’t think being committed to the centrality of resistance in analysis means we have to collapse into some ‘force of wills’ type analysis. What troubles me about much of Anghie’s book is that although he beautifully describes the what and the how of international law’s connection with colonialism he doesn’t really much into the why. Anghie acknowledges that this is an issue, and – risibly – attempts to come up with a possible explanation right at the end:
Sovereignty, then, is intimately connected with imperialism. The deep and enduring inequalities of power that afflict this planet might be attributed, simply, to inequalities in power: the strong dictate and the weak must comply. But power rarely presents itself simply as brute force, as shock and awe. Rather, it presents its violence in terms of an overarching narrative, and there are few more compelling stories that power can relate about itself when expanding than the great imperial narrative in which ‘we’ are civilized, peace-loving, democratic, humanitarian, virtuous, benevolent and ‘they’ are uncivilized, violent, irrational, backward, dangerous, oppressed, and must therefore be sanctioned, rescued and transformed by a violence that is simultaneously, defensive, overwhelming, humanitarian and benevolent. The furtherance of justice, the promotion of humanitarianism; these are the great goals that imperialism has traditionally set itself.
So for Anghie it all comes down to power. But this of course raises questions of itself in relation to what power is, how and why inequalities arise, how power is maintained. More fundamentally, Anghie doesn’t really show why it is that the law is able to embody – so completely – a specific type of power. This is where Pashukanis (scroll down to the bottom) and Miéville become especially useful. Miéville and Pashukanis both locate the amenability of law and imperialism in the structure of the legal form itself. I personally would argue that Miéville’s model is probably a little bit too simple, but I’ll save that for another day.
The point is though, that unless Anghie is able to analyse whether or not there is some structural connection between colonialism and the international legal form he is unable to fulfil the second of Mutua’s tasks of TWAIL. If international law is structurally biased towards imperialism, then presumably it can’t be ‘reformed’. Instead new forms of international intercourse need to be imagined that transcend international law.
Thus, I think the twin poles of structure and agency are missed by Anghie, which seriously undermines his analysis. For what it’s worth I think that the agency of the Third World is vastly important here. But this agency is necessarily articulated through a legal form. This legal form is structurally produced by international commodity exchange, and therefore international capitalism. This means that the resistance exercised through said form ultimately reproduces the logics embedded within it. Thus, the structure of internationally law thwarts the agents within it – and reproduces the ‘dynamic of difference’. This position is the starting point for my own theoretical stuff, of course, it is more complicated than this, but this does provide a basic framework. Anghie then is brilliant but incomplete, what he needs a theoretical framework through which to elaborate his insights.
 Makau wa Mutua, (2000) What is TWAIL?', Proceedings of the 94th Annual Meeting of the American Society of International Law 31 at p.31
 Anghie, Imperialism Sovereignty and the Making of International Law, 2005, Cambridge University Press, p.6
 Ibid., p.4
 Ibid., p.21
 Ibid., p.64
 Ibid., p.71
 Ibid., p.71
 Ibid., p.107
 Ibid., p.215
 Ibid., p.317