Spring, 2011

Vol. III, No. 1 Trade, Law and Development

Special Issue: Third World Approaches to International Law

OBITUARY In Memoriam: Ram Prakash Anand (1933-2011)

EDITORIALS Meghana Sharafudeen, 2010-2011: Taking the Road Less Travelled

B. S. Chimni, The World of TWAIL: Introduction to the Special
Issue

ARTICLES James Thuo Gathii, TWAIL: A Brief History of its Origins, its
Decentralized Network, and a Tentative Bibliography
Mohsen al Attar & Rebekah Thompson, How the Multi-
Level Democratisation of International Law-Making Can Effect
Popular Aspirations Towards Self-Determination
Luis Eslava & Sundhya Pahuja, Between Resistance and
Reform: TWAIL and the Universality of International Law
Gus Van Harten, TWAIL and the Dabhol Arbitration
Sara L. Seck, Transnational Business and Environmental
Harm: A TWAIL Analysis of Home State Obligations
M. Sornarajah, Mutations of Neo-Liberalism in International
Investment Law

BOOK REVIEW Gregory Bowman, Of Haves and Have-Nots: A Review of

Donatella Alessandrini, Developing Countries and the
Multilateral Trade Regime: The Failure and Promise of the
WTO’s Development Mission (Hart Publishing 2010)

GRAPHIC ART Education for Emancipation, written by Mohsen al Attar,

illustrated by Mia Koning

 
ISSN : 0976 - 2329
eISSN : 0975 - 3346
 Trade, Law and Development
Vol. 3, No. 1 2011

PATRON
Justice N. N. Mathur
FACULTY-IN-CHARGE
Yogesh Pai
GUEST EDITOR
B. S. Chimni
EDITORS-IN-CHIEF
Manu Sanan Meghana Sharafudeen
(ISSUE EDITOR)
EDITORS
(MANAGING) (CONTENT) (CONTENT)
Prateek Bhattacharya Aditi Patanjali Gopalakrishnan R.
ASSOCIATE EDITORS
Aman Bhattacharya Ambika Gupta Jayant Raghu Ram
COPYEDITORS
Meghana S. Chandra Abhipsit Mishra Prianka Mohan
Shreya Munoth Lakshmi Neelakantan Neha Reddy
Aritra Roy Geetanjali Sharma
CONSULTING EDITOR
Shashank P. Kumar
BOARD OF ADVISORS
Raj Bhala Glenn Wiser Jagdish Bhagwati
Daniel Magraw B. S. Chimni M. Sornarajah
Ricardo Ramírez Hernández Vaughan Lowe W. Michael Reisman

Published by
The Registrar, National Law University, Jodhpur
ISSN : 0976-2329 | eISSN : 0975-3346
 Trade, Law and Development
B. S. Chimni, The World of TWAIL:
Introduction to the Special Issue
3(1) TRADE L. & DEV. 14 (2011)

THE WORLD OF TWAIL: INTRODUCTION TO THE SPECIAL

ISSUE

B. S. CHIMNI

TABLE OF CONTENTS

I. ABSENCE OF CRITICAL LEGAL SCHOLARSHIP IN INDIA

II. INTRODUCING THIRD WORLD APPROACHES TO INTERNATIONAL LAW (TWAIL)
III. THE MEANING OF TWAIL
IV. CONTENTS OF THE SPECIAL ISSUE
V. CONCLUSION

When I was invited by Trade, Law and Development to Guest Edit an issue on
third world approaches to international law (TWAIL), I readily accepted as I felt it
was an opportunity to introduce this distinctive critical approach to law students in
India. For despite Indian scholarship playing a crucial role in the articulation of
TWAIL, it has not been widely studied in law schools. This paradox compels me
to say, at first, a few words on the state of legal studies in India.

I. ABSENCE OF CRITICAL LEGAL SCHOLARSHIP IN INDIA

There is a consensus in the academia that legal scholarship is still to come of

age in India. Some would contend that the field of legal scholarship represents a
wasteland, even though some outstanding work has been produced by individual
scholars. The absence of critical legal scholarship is an inextricable part of this state
of affairs. But for the work of scholars like Lotika Sarkar, S.P. Sathe, Upendra Baxi
or Flavia Agnes, there is not much to show by way of a body of critical writings.
Indeed, despite the constraints imposed by the nature of judicial pronouncements,
it is to the landmark judgments of a Justice Krishna Iyer or a Justice P.N. Bhagwati
that students still turn for critical insights into the working of the Indian legal
                                                            

Professor, Centre for International Legal Studies, Jawaharlal Nehru University, New
Delhi, INDIA. E-mail: bschimni[at]hotmail.com.
Spring, 2011] Issue Editorial 15

system. There is a complex set of reasons that account for this scenario. Until
recently, this included, the sorry state of legal education, the lack of adequate
libraries and research infrastructure, the absence of a tradition of legal scholarship,
the meager avenues for publishing, especially the absence of many peer reviewed
journals, and often, the colonial mind-set which believes that work done in first
world institutions is rigorous and of higher quality, and it suffices to borrow from
it when the need arises.

Today, as things have improved on the infrastructure front, albeit only in

premier law schools, and good legal scholarship has begun to be produced, the
absence of critical scholarship has more to do with the mood of the times. Critical
legal scholarship often depends on the disposition of the times. Thus, the Critical
Legal Studies (CLS) movement in the United States found its roots in an
environment that was imbued with the spirit of the anti-Vietnam war movement.
There was the feeling that things were not going right and that the political class
had let down the citizens. The mood in India is different. Until very recently, the
environment was not one filled with forebodings of things going wrong, but one
of hope and optimism. This feeling can be traced to the economic liberalization
policies initiated in 1991 which have seen sustained high growth rates. The
“national law school” took birth and gained ascendance in this period. These
economic liberalization policies have seen the legal services market expand,
offering lucrative employment opportunities. Some of the best young minds in the
country, who would have earlier not opted for the legal profession, now seek to
enter law schools to take advantage of this. The new law graduates have adopted
pragmatism as their motif. The task of the law graduate is seen as contributing to
nation-building in the era of globalization by using his or her skills to improve the
working of laws and legal institutions rather than by offering a structural critique of
the Indian legal system. There is therefore little by way of alternative thinking on
this system’s functioning, especially in terms of improving its workings for the
welfare of the subaltern classes. I wish to be clear here, I think that the turn to
pragmatism, from an earlier sterile positivist approach, is a step forward. I also
believe that the enormous pool of talent that is coming to the “new law schools”,
as also the premier “traditional” law schools, feels for the subaltern classes. But in
the present circumstances - where any critique of the neo-liberal agenda with the
laws and institutions that have been established to facilitate it, is perceived as part
of old world thinking and associated with economic stagnation and state controls
that stymied initiative of any kind - make it difficult for critical and alternative
thinking to take root. It can only be hoped that the mounting evidence of crony
capitalism and unimagined corruption will change this perception.

Meanwhile, the unintended outcome is that the “new law school” is perceived
as producing a cadre for servicing global capital; I have heard this criticism from all
sections of the legal community. While conceding that these law schools have
16 Trade, Law and Development [Vol. 3: 14 

brought vitality, life and seriousness to legal education, the concern has been
expressed that the new law graduate is inclined to join large law and corporate
firms to defend the interests of a few and that the new law graduate tends to act as
a transmission belt for legal ideas that promote the interests of global capital.
Critical legal scholarship is an obvious fatality in this scenario. In my personal view
this narrative is not entirely accurate. There are a number of new law school
graduates working for grassroots organizations, doing pro bono work, and
producing critical academic work. But if the popular perception is to be dispelled, a
more active association, both at the academic and practical levels, with the life
world of subaltern groups in India is necessary. To be fair, as the dark side of neo-
liberal policies begin to be revealed, there is today a greater willingness to listen to
critical and alternative voices. In the circumstances it is to be hoped that TWAIL
will also get a hearing.

II. INTRODUCING THIRD WORLD APPROACHES TO INTERNATIONAL

LAW (TWAIL)

In so far as the field of international law is concerned, it has been from the
very beginning, that is from the first decades after independence, home to critical
scholarship. The critical impulse was generated by two factors. The first was to
challenge the suggestion of western scholars that international law was the product
of European Christian civilization and second, the felt need to reform the process
and structure of international law so that it responded to the needs of the Indian
people, and, more generally, to the concerns of third world peoples. At first much
of the literature was aimed at felling the first assumption. This exercise began even
before India gained independence.1 In the period after independence Judge
Nagendra Singh among others wrote extensively on the prevalence of international
law rules in ancient and mediaeval India.2 Mention may also be made of the
pioneering work of C.H. Alexandrowicz, a Polish international law scholar, who
spent several years at Madras University in the 1950s and 60s. In his path breaking
work International Law in the East Indies: 16th, 17th and 18th Centuries Alexandrowicz
showed how when the European adventurers arrived in Asia, “they found
themselves in the middle of a network of states and inter-State relations based on
traditions which were more ancient than their own and in no way inferior to
notions of European civilization”.3 His work was carried forward by R.P. Anand,
                                                            
1 P. BANDYOPADHYAY, INTERNATIONAL LAW AND CUSTOM IN ANCIENT INDIA

(1920); S.V. VISWANATHA, INTERNATIONAL LAW IN ANCIENT INDIA (1925).

2 Nagendra Singh, India and International Law, in ASIAN STATES AND THE DEVELOPMENT

OF INTERNATIONAL LAW, 25-44 (R.P. Anand ed., 1972); NAGENDRA SINGH, INDIA AND
INTERNATIONAL LAW: ANCIENT AND MEDIAEVAL (1973); H. CHATTERJEE,
INTERNATIONAL LAW AND INTER-STATE RELATIONS IN ANCIENT INDIA (1958).
3 C.H. ALEXANDROWICZ, INTERNATIONAL LAW IN THE EAST INDIES: 16TH, 17TH AND
Spring, 2011] Issue Editorial 17

to whom this Special Issue is dedicated. In his writings Anand sustained the thesis
that Asia was familiar with the language of international law from early times and
that founding figures like Hugo Grotius borrowed from the doctrines and
practices of Asian states. In the sixties he published two most influential articles on
the Asian-African approach to international law.4 He followed it up with his widely
read work New States and International Law (1972)5 and later The Origin and
Development of the Law of the Sea (1983)6.

From the early seventies sustained work started to emerge from the Centre for
International Legal Studies in Jawaharlal Nehru University, under the inspired
guidance of Anand, arguing for change in the body of rules of international law to
meet the aspirations of third world peoples. For over four decades now
international law scholars at the Centre have been articulating and applying
TWAIL to different branches of international law. But the Centre has not been
alone in its efforts; much literature has also flowed from other universities. The
sustained production of critical international legal scholarship, even in the darkest
phase of Indian legal education (the 1970s and 80s), can be traced to the
progressive nature of Indian foreign policy in the first decades after independence,
articulated at first with great finesse by Jawaharlal Nehru. Of course there have
been the usual ups and downs. For those interested I have elsewhere described in
some detail the story of international law scholarship in post-colonial India—its
different phases and trends.7 The Indian effort at producing critical scholarship
was considerably helped by the fact that TWAIL was articulated in several
countries emerging out of colonial rule. While neglected in the early years by
mainstream western scholars, it is coming to have a growing presence in the world
of international legal scholarship.

III. THE MEANING OF TWAIL

I need to say a few more words on TWAIL and its defining features. Broadly
speaking, TWAIL scholars are united in their opposition to the politics of empire.
As Mohsen al Attar and Rebekah Thompson put it in their contribution to this
volume:

                                                                                                                                                  
18TH CENTURIES (1967).
4 R.P. Anand, Role of the "New' Asian-African Countries in the Present Legal Order, 56 AM. J.

INT'L L. 383 (1961); R.P. Anand, Attitude of the Asian-African States Toward Certain Problems of
International Law, 15 INT’L & COMP. L.Q. 55 (1966).
5 R.P. ANAND, NEW STATES AND INTERNATIONAL LAW (1972).
6 R.P. ANAND, THE ORIGIN AND DEVELOPMENT OF THE LAW OF THE SEA (1983).
7 B.S. Chimni, International Law Scholarship in Post Colonial India: Coping With Dualism,

23(1) LEIDEN J. OF INT’L L. 23, 51 (2010).

18 Trade, Law and Development [Vol. 3: 14 

TWAIL is an alternative narrative of international law that has

developed in opposition to the realities of domination and
subordination prevalent in the international legal apparatus. A
fundamentally counter-hegemonic movement, TWAIL is united in its
rejection of what its champions regard as an unjust relationship
between the Third World and international law.8

Likewise, Eslava and Pahuja note:

Although there is arguably no single theoretical approach which

unites TWAIL scholars, they share both a sensibility, and a political
orientation. TWAIL is therefore … defined by a commonality of
concerns. Those concerns centre around attempting to attune the
operation of International law to those sites and subjects that have
traditionally been positioned as the ‘others of international law’.9

On the other hand, the diversity of TWAIL is reflected in the different

theoretical strands for advancing a third world approach viz., liberal, feminist,
post-colonial, and Marxist, or a combination of these. To be part of the TWAIL
movement you do not have to subscribe to a party programme. It is a loose
network of scholars whose work is animated with the concern to establish a truly
universal international law that goes to promote a just global order.

TWAIL can also be looked at through generational lens. The first generation
of TWAIL scholars (TWAIL I), which included R. P. Anand, Mohammed
Bedjaoui, T. E. Elias, Georges Abi-Saab, S. P. Sinha, Nagendra Singh, J. J. G.
Syatauw, Christopher Weeramantry, made a fundamental contribution to the
understanding of contemporary international law by defining and articulating the
attitude of the newly independent states to international law. The current
generation of third world scholars (TWAIL II) owe much to them. Allow me to
identify the major strengths of TWAIL I. First, it documented the contribution of
third world communities to the evolution and development of international law.
This helped destroy the myth that international law was in some peculiar way
"invented" in the West. Second, it judiciously recognized that, the complete
rejection of the rules of international law was not a feasible option for newly
independent states. Third, it underlined the significance of the principles of
                                                            
8 Mohsen al Attar & Rebekah Thompson, How the Multi-Level Democratisation of

International Law-Making Can Effect Popular Aspirations Towards Self-Determination, 3(1) TRADE
L. & DEV. 65, 67 (2011).
9 Luis Eslava & Sundhya Pahuja, Between Resistance and Reform: TWAIL and the

Universality of International Law, 3(1) TRADE L. & DEV. 103, 104 (2011) [hereinafter Eslava &
Pahuja].
Spring, 2011] Issue Editorial 19

sovereignty and non-intervention for peoples who had just thrown off the colonial
yoke. Fourth, TWAIL I recognized the potential of the United Nations system to
usher in an era of change. It realized that the one state one vote formula allowed
third world states in the UN General Assembly to call for the restructuring of
contemporary international relations and law.

In the 1990s emerged a second generation of TWAIL scholars who sought to

build on the work of TWAIL I. The story of TWAIL II is briefly narrated in this
issue by James Gathii, a leading figure of the TWAIL network. Indeed, without his
initiative to hold the first TWAIL conference at Harvard Law School and a
subsequent one in Albany as well as his prolific writing, TWAIL II would not have
had the prominence it has today.10 I will therefore not go over the ground that
Gathii has covered. However, I do wish to explain the broad differences between
TWAIL I and TWAIL II. TWAIL II identified a number of gaps in the work of
TWAIL I even as its pioneering contribution was duly recognized. First, there was
an absence in TWAIL I of a deeper understanding of the phenomenon of
imperialism. It posited a simple structuring of history by which colonialism was
identified with the phenomenon of imperialism. With the result that in the post-
colonial period it did not concern itself with the structures and institutions of
global capitalism that dictated continuity between colonialism and neo-colonialism.
Second, TWAIL I conceptualized the framework of international law as being
neutral. It was perceived as an empty vessel that could be filled with any content.
It therefore (with the exception of Bedjaoui) did not pay sufficient attention to the
technology of international legal process.11 Thus it failed to appreciate that
international law, as it had evolved, did not offer space for a transformational project.
A whole host of doctrines and in particular the doctrine of sources of international
law limited this possibility. TWAIL I also did not seriously explore the deep roots of
indeterminacy in the structure and process of international law. It therefore
overestimated the liberating potential of international law. Third, TWAIL I had a
particular relationship to the post-colonial state and its policies. The post-colonial
conjuncture was seen as one in which support was to be lent to governments
undertaking the nation-building task. Consequently TWAIL I failed to glance
inwards to pinpoint the class, ethnic and gender divides. Fourth, the discussion on
international institutions was largely in the formalist mode, using a positivist legal
framework, with matters of power and influence left to political scientists to debate.
No attempt was made to situate them within the larger social order, in particular, the
                                                            
10 JAMES GATHII, AFRICAN REGIONAL TRADE AGREEMENTS AS LEGAL REGIMES (2011);

JAMES GATHII, WAR, COMMERCE AND INTERNATIONAL LAW (2010); For a complete list of
publications see JAMES GATHII – PUBLICATIONS, available at:
http://www.albanylaw.edu/sub.php? navigation
_id=157&user_id=44&view=publications.
11 MOHAMMED BEDJAOUI, TOWARDS A NEW INTERNATIONAL ECONOMIC ORDER

(1977).
20 Trade, Law and Development [Vol. 3: 14 

historical and political contexts in which they originate and function. In the process
the fact that only when a coalition of powerful social forces and States are persuaded
that an international institution is the appropriate form in which to defend their
interests, is it brought into existence, albeit through state action, and it survives only if
it continues to serve these interests, was overlooked . Given its positivist
methodology TWAIL I also failed to examine the ideological or legitimization role of
international institutions. That is to say, the knowledge production and dissemination
functions of international institutions are steered by the dominant coalition of social
forces and states to legitimize a particular vision of world order. Fifth, TWAIL I
eschewed inter-disciplinary inquiry. Disciplinary boundaries, with the odd
exception, were strictly respected. There was, for example, a general absence of
concern with political economy. Finally, despite its commitment to a more egalitarian
and just international law, TWAIL I was distanced from the experiences and concerns
of ordinary peoples in the third world.

TWAIL II has attempted to respond to some of these concerns and hopes to

take the work of TWAIL I forward by refocusing attention on the structures and
practices of imperialism, critiquing the undemocratic character of post colonial states,
systematically exposing the hegemonic character of international institutions (in
particular the WTO and the IMF/World Bank combine), critically reviewing the
debates on the sources doctrine and issues relating to indeterminacy of the legal
process, devising a research agenda that reflects the concerns and needs of the
marginal and oppressed peoples in the third world, and above all reducing the
distance of the world of international law from the lives of ordinary peoples.

What is remarkable about the story of TWAIL II is that it has caught the
imagination of the international legal academia in such a short period of time. But
it has struck TWAIL II scholars that it is less present in the third world than
should be the case. In the instance of countries like India, there is the iterated
reason that sustained growth rates suggest that critiques of colonialism or neo-
colonialism advanced by TWAIL is misplaced. While the situation is changing with
the realization that increased growth rates do not translate into “development as
freedom”, it did reduce the attraction of TWAIL in the initial years. However, the
tide is turning. There is increasing awareness that key international legal regimes
and international institutions like the WTO, IMF and the World Bank promote the
interests of global capital rather than welfare of populations in the Global South.
At the domestic level, the rapacious exploitation of the land and natural resources
by transnational corporations, the growth of crony capitalism, increased levels of
corruption, and growing unemployment have led to some rethinking among the
new law graduates. In sum, the turn to critical international legal scholarship in
India can be traced to the need felt for the democratization of international
relations, to address what James Gathii calls “regime bias” in international laws and
the democracy deficit in international institutions, especially trade and monetary
Spring, 2011] Issue Editorial 21

institutions. Be it the reform of the WTO Agreement on Trade-Related Aspects of

Intellectual Property Rights12 or the permanent membership of the UN Security
Council or greater voting rights in the international financial institutions, India has
good reason to call for reform in global laws and the global governance system.

IV. CONTENTS OF THE SPECIAL ISSUE

This Special Issue is testimony to the felt need for critical international law
scholarship. It carries six works by distinguished international law scholars. Three
of these works are devoted to exploring the nature and character of TWAIL; the
other three pieces to different dimensions of international economic law. The first
piece by James Gathii succinctly tells the story of TWAIL II and its core features.
While there are different ways in which the origins of TWAIL II can be narrated,
Gathii skillfully captures important dimensions of it. He is also able to portray the
aforementioned diversity of the TWAIL project. This diversity has enabled
TWAIL II to advance the cause of TWAIL in various directions. To begin with,
building on the work of the TWAIL I scholarship it has made an important
contribution to the retelling of the history of international law. Antony Anghie’s
book Imperialism, Sovereignty and the Making of International Law (2005)13 is a landmark
in this regard. TWAIL II has also contributed to articulating distinct approaches to
international law which coexist under the umbrella of TWAIL. For instance, I have
been at the forefront of articulating a Marxist approach to international law.14
Likewise, as Gathii notes, TWAIL II has made important contributions to the
feminist approach to international law pioneered by Hilary Charlesworth and
Christine Chinkin.15 Balakrishnan Rajagopal’s articulation of “international law
from below” also represents a distinct understanding of international law.16 These
are remarkable achievements for an incipient “movement”. But all told, TWAIL
has not been able to dent mainstream international law scholarship. For that to
                                                            
Agreement on Trade-Related Aspects of Intellectual Property Rights, Apr. 15, 1994,
12

Marrakesh Agreement Establishing the World Trade Organization, Annex 1C, Legal
Instruments – Results of the Uruguay Round, 1869 U.N.T.S. 299.
13 ANTONY ANGHIE, IMEPRIALISM, SOVEREIGNTY, AND THE MAKING OF

INTERNATIONAL LAW (2005).

14 B.S. CHIMNI, INTERNATIONAL LAW AND WORLD ORDER: A CRITIQUE OF

CONTEMPORARY APPROACHES (1993); B.S. Chimni, Marxism and International Law: A

Contemporary Analysis, ECON. & POL. WKLY, February 6, 1999, at 337, 349; B.S. Chimni, An
Outline of a Marxist Course on Public International Law, 17 LEIDEN J. OF INT’L L. 1, 30 (2004);
B.S. Chimni, Prolegomena to a Class Approach to International Law, 21 EUR. J. INT’L L. 57, 82
(2010).
15 HILARY CHARLESWORTH & CHRISTINE CHINKIN, THE BOUNDARIES OF

INTERNATIONAL LAW: A FEMINIST ANALYSIS (2000).

16 BALKRISHNANAN RAJAGOPAL, INTERNATIONAL LAW FROM BELOW:
DEVELOPMENT, SOCIAL MOVEMENTS, AND THIRD WORLD RESISTANCE (2003).
22 Trade, Law and Development [Vol. 3: 14 

happen, TWAIL scholarship has to be debated more widely, especially in the

developing world. As Gatthi notes, most of the established TWAIL scholars are
located in the first world. There is a certain irony about this. But it could not have
been otherwise, for access to the institutional resources of the first world is
essential to being heard. But once a presence is established it is important for
TWAIL scholarship to have its locus in the third world because as any researcher
knows location matters, be it in terms of the issues that are addressed or the ways
in which these are approached. This fact enhances the significance of this Special
Issue of Trade, Law and Development.

TWAIL II has already been the subject of both friendly and not so friendly
critiques. The piece by Eslava and Pahuja is a good example of friendly prodding.
They mix appreciation with criticism. The fact that the idea of global justice is the
basis for critique and reconstruction in TWAIL II scholarship comes in for praise.
But in their view “basic questions about the nature of international law sometimes
seem an absent subject of analysis within the smorgasbord of TWAIL and
TWAIL-friendly approaches”.17 It is suggested that TWAIL “expand its emphasis
on materiality to think of international law as not only an ideological project
located in a particular material context, and with material consequences, but also a
material project by itself”.18 It is crucial to examine in detail ‘‘the way that
international law operates, including its daily functioning on the mundane,
quotidian, material plane”.19 There is thus an “invitation to delve into the everyday
life of international law”.20 To this end, Eslava and Pahuja call for the use of a
legal-ethnographic method for “tiny revolutions are everywhere, every day”. We
may thus look at domestic phenomena that is not ostensibly international but in
actuality is. TWAIL II has been alert to this fact and need. For example, it has
made a contribution to the discourse on IPRs and its impact on the right to health.
But of course much greater engagement is necessary with the local that is
increasingly international.

One way of making the local relevant, or to meet the legitimacy deficit in
international law is, as al Attar and Thompson argue in their piece, ‘to promote
democratic engagement of citizens in international law-making’. This is especially
necessary in the age of accelerated globalization when global governance systems
are coming to dwarf national systems. With the result that national elections are
losing salience as they have little bearing on crucial policy issues. In this context al
Attar and Thompson consider the proposal of Richard Falk and Andrew Strauss to
establish a global people’s assembly. In their view this proposal ‘privileges
                                                            
17 Eslava & Pahuja, supra note 9, at 105.
18 Id. at 108-9.
19 Id. at 103.
20 Id. at 123.
Spring, 2011] Issue Editorial 23

procedural over substantial participation’. There is instead a ‘need for multi-level

democratic governance’, that is, at the global, regional and local levels. Al Attar and
Thompson conclude that at the end of the day ‘what is required is not just a
structural change but a transformation of the consciousness of citizens ‘for
otherwise domination will return in different forms’. TWAIL II certainly needs to
pay greater attention to the processes and mechanism of democratization of
governance systems and the multilevel mechanisms through which these can be
embedded.

Without any doubt one of the foremost scholars in the world on international
investment law today is M. Sornarajah. In his essay, Sornarajah discusses the
“mutations of neo-liberalism in international investment law” from a TWAIL
perspective. While looking at the four historical phases of the development of
international investment law, he stresses the importance of the academia in
codifying the interests of powerful social forces and states: ‘Repetition is a
technique of imperial law making which persists to this day’ or ‘the unfortunate
fact is that, the increasing publication of journal articles and books in the
developed world by younger scholars, eager to join the neo-liberal bandwagon, has
witnessed a profusion in the articulation of neo-liberal views’. This support for the
neo-liberal era international investment law is constructed on the assumption that
‘foreign investment was so essential to economic development that its flow should
be facilitated through its absolute protection’. India has therefore been rapidly
signing Bilateral Investment Protection Treaties (BITS); about seventy of them are
already in place. But the “absolute protection” model is problematic as symbolized
today by the Posco experience where competing values and interests are ignored. It
is here that TWAIL scholarship can make a difference. Globally, there is already a
degree of rethinking, both in the developed and developing worlds, on
international investment law. While ‘some Latin American states have withdrawn
from the ICSID system, provoking a view that Latin America may return to the
days of the Calvo doctrine’ ‘developed states themselves are content to leave
investor-state dispute resolution out of their investment treaties’. As Sornarajah
points out, the retreat is most evident in the treaty practice of the United States. Its
Model Treaty (2004) contains many ‘sovereignty based control devices which
undermine its historical stances relating to absolute protection of investments’.
Finally “schisms” have opened up within the ranks of arbitrators in an effort to
balance competing interests. There is the felt need for factoring in ‘the competing
concerns of human rights, environmental protection and labor standards’. TWAIL
scholars have much to contribute in scrutinizing this line of argument. For it is not
entirely certain what these changes mean as in the case of the idea of corporate
social responsibility. Is it moved by the quest for legitimacy or is it a response to
genuine concerns? The skeptic would argue that it is an attempt to give
international investment law a progressive face. But simple critique is not enough.
TWAIL needs to offer imaginative solutions, worked out in some detail, to
24 Trade, Law and Development [Vol. 3: 14 

problems on hand.

The relationship between critique and reconstruction is brought out in Gus

Van Harten’s paper on the award of ICC Arbitration Tribunal on the Dabhol
Project in 2005. He argues that while ‘TWAIL offers a useful reference for
organizing a critique of the ICC Arbitration’ it is ‘less relevant … for the
identification of options for reform in international arbitration or of strategies to
encourage, manage, or regulate investment for social ends’. Van Harten’s review of
the award in the Dabhol Project evidences “regime bias” against third world
countries and interests. Different strategies facilitated this “regime bias”. These
included the selection of arbitrators, expanding the sources of law beyond what
appeared proper, a selective rendering of the history of the Dabhol Project, a
refusal to take cognizance of the objections and opposition to the project on
grounds including human rights violations. But what should third world countries
do in the future. What should be their strategies? Van Harten looks for “more
detailed guidance” from TWAIL on ‘discrete priorities for reform’, matters
presently left to ‘other fields of law and policy’. There is an element of truth to the
complaint. But it is equally true that the task of critique itself has not yet been fully
accomplished. The regime bias is still insufficiently appreciated including certain
predispositions that are built into the process of international commercial
arbitration. Its history still awaits serious critique from a TWAIL perspective. But
Van Harten is right in lamenting that TWAIL does not offer practical guidance to
those who take decisions in such matters or draft contractual agreements. This task
should certainly be on the TWAIL agenda. It is not enough to offer broad
comments on reform. There is a need for an inter-disciplinary use of materials to
offer detailed guidance on technical legal issues.

Sara Seck’s article on “transnational business and environmental harm” is a

good example of an imaginative response to third world concerns. She begins by
noting that “when vulnerable communities who are sensitive to ecological limits
wish to preserve their local ecology, it is crucial that all possible levels of global,
local and transnational governance are sensitive to their call, including potential
mechanisms of control within home state jurisdictions. Yet the structural features
of international law render this a difficult goal to achieve.” On the other hand, any
attempt to argue the case for home state involvement has to contend with the
charges of neo-colonialism or of insensitivity to third world aspirations. The
possibility of such charges being made is the pretext used by home states for
inaction even as there is serious violation of local environment spaces by third
world governments in the name of development, disempowering local
communities. This conundrum is a function of the changing nature of the global
economic and ecological order where the reality of economic globalization clashes
with the competences distributed between the national and the global to regulate
transnational business activities and environmental harm. It has meant the worst of
Spring, 2011] Issue Editorial 25

both worlds for subaltern groups in the third world. On the one hand there is a
loss of critical policy space to regulate transnational business in the name of the
global and on the other hand a Westphalian logic is used to deprive them from
using global opportunities to protect their interests vis-à-vis environmental harm.
But it may be conceded that TWAIL scholars are generally reluctant to endorse
mechanisms of control in home state jurisdictions because these may be
manipulated to justify unilateral measures that harm the interests of third world
peoples. But Seck does well to pose this challenge to TWAIL. For example, what
kind of legal strategies can be devised to help the affected people of Orissa and to
make TNCs like Posco accountable? As Seck suggests, there is a need for bold
solutions and from this perspective maps the conceptual frame in which home
state obligations can be situated.

V. CONCLUSION

International law is shaping the domestic legal system in critical ways today.
Indeed, there is practically no area of domestic law that is untouched by
international laws and institutions. Yet India lacks a critical mass of international
law teachers and researchers who can look at the structure and process of
international law from the perspective of the developing world, in particular its
subaltern classes. Al Attar has, in his essay, drawn our attention to the need for
devising pedagogic methods that promote “education for emancipation” by
drawing on texts like Paulo Freire’s Pedagogy of the Oppressed. It is hoped that this
Special Issue on TWAIL will in some way contribute to both promoting
emancipatory pedagogy and critical international legal scholarship in India so
crucial to the realization of its national interests.