In spite of several variations occurring within the category of “Third World Countries,” the

constituent states are said to be common to the extent of facing underdevelopment, history of
colonization and marginalization in the global order.1 Extensive study on the issue has revealed
that Third World Approaches to International Law (TWAIL) emerges from a context in which
the regime of international law is regarded to be illegitimate. It is regarded as a system predatory
in nature, which tends to sustain and reinforce the subordination of these countries by the West.2

It is generally regarded that there have been two kinds of scholarships within TWAIL,3 but
whatever the position of TWAIL in terms of its chronological origins or the divisions between
the generations of TWAIL scholarship, it is universally agreed by all that it has its origins from
lack of satisfaction with mainstream international law. The basics of TWAIL are best expressed
by Professor Mutua:

“It basically describes a response to a condition, and is both reactive and proactive. It is reactive
in the sense that it responds to international law as an imperial project. But it is proactive
because it seeks the internal transformation of conditions in the Third World.”4

If the said elements of being ‘reactive’ and ‘proactive’ are covered in the notional understanding
of TWAIL, then it is imperative to review whether these objectives are being achieved. The
evaluation would aid in reviewing the practical utility of TWAIL as an analytical tool as well as
an academic endeavor.5 In carrying out the same, the researcher will lay special emphasis on a
particular aspect of international law, it being international human rights law, the questions
arising out of which could be then applied to other aspects of international law.

1
1) B.S. Chimni, “Th ird World Approaches to International Law: A Manifesto”, 8 International Community Law
Review (2006) p. 5.
2
Makau Mutua, “What is TWAIL?”, 94 American Society of International Law Proceedings (2000) p. 31. See also
Antony Anghie, Imperialism, Sovereignty and the Making of International Law (2005).
3
Antony Anghie & B.S. Chimni, “Th ird World Approaches to International Law and Individual Responsibility in
Internal Confl icts”, 2(1) Chinese Journal of International Law (2003) p. 79.
4
Mutua, supra note 2
5
See Obiora Chinedu Okafor, “Newness, Imperialism, and International Legal Reform in Our Time: A TWAIL
Perspective”, 43 Osgoode Hall Law Journal (2005) pp. 175, 176.
 Human Rights Law and TWAIL

Third World approaches have been framed from the perspective of various issues, both historical
as well as contemporary. In the latter half of the twentieth century, the most prominent issue that
governed the third world approach was the issue of right to development, the strongest proponent
of that being Keba M’Baye.6 The scholars belonging to this generation are known as belonging
to ‘TWAIL I’.7 TWAIL I scholarship and its approaches towards international human rights law
were government centric, and the proponents strongly advocated the potential of human rights
law in alleviating the hardships of the masses residing in the third world.8

‘TWAIL II’ Scholarship originated in the 1990s, revolving mostly around TWAIL I, but also
digressing from the same in several ways.9 The main argument raised against TWAIL II is that it
promotes a culture of universal human rights without sufficient third world input. In this regard,
Mutua says that international human rights law finds its origins in a Eurocentric rhetoric and
corpus.10

In addition to the above critique, there is a running concern among TWAIL II scholars to
actively identify and vocalize the marginalized sections within the third world countries,
comprising of women, children, minorities, workers, and all those who are considered to be
excluded by the TWAIL I scholarship.11 In totality, the scholarship of TWAIL II scholars is very
people centric. The emphasis to give voice to the marginalized12 and critiquing human rights
appears to be the primary focus of TWAIL with respect to international human rights law.
Naturally, third world scholars are not only questioning the universal nature of human rights but
also their employability for addressing human needs, especially those of the third world
countries. It appears that the current threshold test for the acceptance of human rights in the third
world is whether it can adequately meet the current needs of the third world population.

6
Karin Mickelson, “Rhetoric and Rage: Th ird World Voices in International Legal Discourse”, 16 Wisconsin
International Law Journal (1997–1998) p. 375.
7
Anghie & Chimni, supra note 3.
8
Id. at pp. 81, 82.
9
Id. at p. 83.
10
Mutua, supra note 2, at p. 37.
11
Anghie & Chimni, supra note 3, at p. 83.
12
Upendra Baxi, “Voices of Suff ering, Fragmented Universality and the Future of Human Rights”, in B.H. Weston
& S.P. Marks (eds.), Th e Future of International Human Rights: Commemorating the 50th Anniversary of the
Universal Declaration of Human Rights (1999).
 What If Any, is the Utility of TWAIL for International Human Rights Law?

The researcher will consider the substantive and theoretical contributions of TWAIL from the
perspective of an undergraduate student international human rights law, specifically in the field
of socio-economic rights law in Africa. These contributions may be applied in other fields of
international law but it is very much possible that are specific to human rights law. With the
knowledge that TWAIL is a proactive as well as a reactive response to a state or condition (either
international law or third world populace), the researcher will begin by highlighting some of the
contributions that he has himself ascertained.

Interconnectedness and History

The researcher is of the view that the first set of views that a TWAIL perspective brings to any
field, and specifically to the field of international human rights law, were very accurately
identified by Professor Mickelson in the following words:

“- an emphasis on interconnectedness of subject areas, illustrated by an unwillingness to draw

rigid boundaries between various areas of the law (such as economics, human rights, or the
environment) . . .

-an emphasis on history, typified by an unwillingness to look at any problem as ahistorical or to

separate the law from the historical context within which it developed.”13

Firstly, with respect to human rights, it is observed that a TWAIL perspective enables scholars to
engage with international human rights law in relations with any other discipline that may be
pertinent to the specific focus of study. For instance, one cannot purport to examine socio-
economic rights in Africa without an analysis of the effects that international economic law,
particularly international trade law, might have had on them- whether these effects were a result
of multi-national corporations or international trade organizations. One would be compelled to
ask questions such as ‘what will be effects of international trade law on the right to health,
especially with regard to the availability of generic drugs?’ or ‘what will be the impact of
international economic law on the right to food?’ In contemporary times, one might also wonder
about the impact of international environmental law on the right to food. Although this kind of

13
Mickelson, supra note 6, at p. 397.
‘transdisciplinarity’14 cannot always be posited as a solely TWAIL initiative for methodology,15
the fact that TWAIL is an analytical tool remains unchanged and it enables scholars to
successfully employ this conceptual framework in their methodological inquiries into the current
state of discipline of international human rights law, and this should be duly recognized as one
TWAIL’s main contributions.

Secondly, it is easy to observe that a TWAIL analysis brings a historical perspective to a

discourse,16 including international human rights law. Personally, the TWAIL perspective has
helped the researcher to highlight the historical root causes of the prevailing dismal state of
socio-economic rights in the Third World. With respect to the right to food, for instance, a
TWAIL perspective aids one in asking questions such as ‘what ere the effects of colonial politics
on the politics of food production in Africa?’ or ‘how did the evolution of cash crop economy
take place or how did it or how does it help perpetuate hunger and malnutrition in several third
world countries?’ This is a perspective that a ‘mainstream’ international law background might
not always explicitly acknowledge. Prior to the researcher’s encounter with TWAIL, the
researcher had always approached human rights issues from a mainly formal institutional and
textual angle and devoid of any in depth recourse to historical methodology that a TWAIL
approach exemplifies. The beauty of this contribution of TWAIL is that when this perspective is
adopted, the understanding of human rights law undergoes a complete change- the agenda of
research changes and the scope of the same is broadened. In totality, it helps scholars in
proposing more viable and durable recommendations to the various problems related to human
rights, specially the socio-economic rights discourse.

14
Id. at p. 400.
15
Several authors who I would call “mainstream” scholars also sometimes make this form of interconnectedness.
See, for example, Laura Niada, “Hunger and International Law: Th e Far-Reaching Scope of the Human Right to
Food”, 22 Connecticut Journal of International Law (2006) pp. 131–201; E.-U. Petersmann, “Human rights and
international economic law in the 21st century: Th e need to clarify their interrelationships”, 4(1) Journal of
International Economic Law (2001) pp. 3–39; and Emilie M. Hafner-Burton, “Trading Human Rights: How
Preferential Trade Agreements Infl uence Government Repression”, 59 International Organization (2005) pp. 593–
629.
16
Andrew F. Sunter, “TWAIL as Naturalized Epistemological Inquiry”, 20(2) Canadian Journal of Law and
Jurisprudence (2007) pp. 480, 489.
The Contradictions within International Law
A TWAIL perspective aids scholars in understanding and appreciating the current contradictions
found embedded within international law,17 particularly in the field of perpetuation of injustice
within the third world, even when it concerns international human rights law. Hence, TWAIL
has helped demonstrate the discrepancy between the various contradictory languages adopted by
international law in its various streams.18 For instance, on the one hand, international purportedly
supports the promotion of human rights but on the other hand it appears to be indifferent when
international trade and economic law violate human rights. Indeed, “labour market deregulation
prescribed by international fi nancial institutions and international monetary law has caused the
deterioration of the living conditions of third world labour”19 and, in fact, of the population
residing in the third world. A TWAIL perspective therefore helps scholars in appreciating how
international human rights law can be used as a means for legitimizing neo-liberal aspirations.20
One is forced to ponder whether international rights law is indifferent to the cause of
international human rights law and this probe helps unearth several research issues that would
have been otherwise ignored.21

Where Does TWAIL Falter and What Needs to be Done?

Having highlighted some of the substantive and theoretical contributions of TWAIL, it can be
safely said that there is a lot to be improved upon within TWAIL scholarship in adopting
TWAIL as an analytical tool. A few of the researcher’s observations are discussed succinctly
below.

From the Critical to the Pragmatic

It is the researcher’s observation that TWAIL scholarship has not been able to fully articulate an
alternative vision of human rights law, which has led to a lot of critique in this regard. 22 The
researcher is of the opinion that TWAIL needs to move beyond intellectual critique to the level
where it proposes or develops concrete means by which its critiques can be addressed – either in

17
Id. at p. 477.
18
Chimni, supra note 1, at 3.
19
Id. at p. 11.
20
Id. at p. 3.
21
Mickelson, supra note 6, at p. 370.
22
Mutua, supra note 28, at pp. 126–152.
knowledge production or pragmatic institutional development.23 What alternatives to the wrongs
of international human rights can TWAIL proff er? On a level of specifi city, how would
TWAIL posit that some of the failings that have been observed with international human rights
law be remedied? TWAIL scholars need to translate this awakened ‘TWAIL-refined’
consciousness and worldview to take root in pragmatic terms. We need to convert the critical
into the pragmatic and not risk being simplistically lumped amongst the general critiques of the
critical.24

TWAIL and Knowledge Production

Another observation that I have made with regards to the shortcomings of TWAIL is the need for
TWAIL to push its research agenda and objective beyond playing a critical role in the North
(where it is largely lumped in a pot pourri of critical approaches and often ignored in the
academy) and assert its presence in the Third World which it claims to represent. It seems trite to
posit that currently, most international human rights law students in the South still get almost all
their knowledge of the concept of international human rights law from the scholarship of
Northern mainstream academics.25 This has led students from the Third World – at least in my
experience – to have an ideological foundation that premises their understanding of human rights
from a Northern mainstream perspective. The few who subsequently encounter TWAIL
scholarship are usually first left bewildered on contact.

Using Human Rights

Whilst TWAIL scholars may appreciate the fact that a wholesale condemnation of international
human rights may not always be in the interest of the Th ird World, there is a further need for
increased constructive critique, especially knowing that however valid our criticisms of
international law and human rights may be, human rights still protect ‘rights’ and this fact cannot
be dismissed outright.42 Hence, perhaps TWAIL scholars ought to be more involved in directly
engaging current mainstream international scholarship on human rights, and even the work of

23
Id. at pp. 3, 4. See also Mickelson supra note 6, at p. 354.
24
See, for example, the critique of CLS by Richard Michael Fischl, “The Question That Killed Critical Legal
Studies”, 17(4) Law and Social Inquiry (1992) pp. 779–820. See also John Henry Schlegel, “CLS Wasn’t Killed By
a Question”, 58(5) Alabama Law Review (2007) pp. 967, 978.
25
Chimni, supra note 1, at p. 15.
other critical scholars.26 As things stand, it seems that mainstream scholarship and TWAIL
scholarship often work at polar opposites.

26
Sunter, supra note 16, at pp. 476, 477.