Over a period of years, a discourse has been developing questioning the potential of the international human rights framework. International Human Rights Law (IHRL) is accused of failing to attain its aspirations and to be inclusive of diverse human experiences. Its enforcement towards different states has been a subject of controversy. The critique of IHRL has intensified with the recent trend of Western liberal democracies turning inward. The debt crises in Europe, poverty, racism, xenophobia, immigration, and alarming concerns of national security today all pose compelling questions for IHRL. The critique by Third World Approaches to International Law (TWAIL) of IHRL is increasingly relevant against this backdrop. Through the lens of TWAIL, this Article deconstructs the foundations of IHRL to ascertain its limitations in responding to these existing challenges.
What is TWAIL?
Originally aimed at critically examining the foundations of international law, TWAIL progressed as an adventure and an experiment. Emerging formally in the 1990s, TWAIL is distinguishable from a mere method of analysis. Professor Antony Anghie, a prominent scholar in the area, describes TWAIL as a particular set of concerns that a number of scholars from various locations with different perspectives and interests utilize. TWAIL as of now is in its second development epoch.
TWAIL primarily aims to understand how international law affects people in the ‘third world.’ ‘Third world’ no longer is constrained to a geographical rubric or as a label for under developed and developing countries. Instead, it is conceptualized as a social movement geared at furthering the interests of oppressed or marginalized people. These groups could mean under developed countries of the Global South or could even be marginalized populations in the developed Western liberal democracies, such as aborigines or natives, people of color, women, and poverty ridden cohorts in the community.
TWAIL scholarship unravels how dynamics of international politics and transnational interaction have profoundly impacted and redefined IHRL. Although TWAIL’s critique of IHRL takes many forms, its core criticisms could be divided into three substantive layers, for the purpose of this Article: Eurocentrism, top-down approach, and non-inclusivity of all diverse human experiences.
TWAIL’s Critique of IHRL
TWAIL’s approach to IHRL is divided. On the one hand IHRL is seen as a mechanism through which people of the third world seek protection from depredations of state power, while on the other it is seen as everyday imperialism. The latter refers to the imposition of Western liberal morals upon relatively less powerful countries. It can be illustrated by an analogy of colonialization where Western European values were imposed on colonies, in the guise of ‘civilization,’ without any regard to the domestic systems of law and governance and the local cultures. The monolithic mindset that was present in the inception of IHRL could be failing to grapple with the current issues of addressing poverty, social integration of diversity, and evaluating cultures. As TWAIL scholar and feminist Ratna Kapur asserts, the human rights promise of progress, emancipation, and universalism is thus exposed as a myopic project in light of the panic over national security, sexual morality, and cultural survival.
The Western European origin of the international legal framework is a fact. Legal historians such as J.H.W. Verzijl claim international law to be an exclusive product of the European mind. The Oxford Handbook of the History of International Law states that the development of international law, would “generally ignore the violence, ruthlessness, and arrogance which accompanied the dissemination of Western rules, and the destruction of other legal cultures in which that dissemination resulted.” Further, it “even discards such extra-European experiences and forms which were discontinued as a result of domination and colonization by European powers” and deems it “irrelevant to a (continuing) history of international law.” It continues to be Western, not merely because of its origin, but also owing to the absence of any substantive non-Western contribution to its development. Though there have been cohesive contributions by scholars from the third world, their viewpoints have been diluted in Western thinking and education and the forceful counter challenges waged by first world actors.
Although birthed from the ashes of the atrocities committed during World War II, the Universal Declaration of Human Rights (UDHR) and the nine core international human rights treaties are founded upon the predominant contribution by the First World and Western European states. Therefore, the basic framework of IHRL is reliant on an illusion of symmetry and equal status to all countries rooted in sovereignty. Some scholars now contend that it is the untiring efforts of the Global South that sustained IHRL subsequent to the 1960s. Among the TWAIL proponents, Latin American scholars seem to come out stronger in the International Human Rights fora. However, their role is more profound in developing an exemplary regional approach to human rights thorough the Inter-American system.
Complexities have arisen through the change of power dynamics in the world. As new democracies such as India, Brazil, and the Republic of China are emerging powerfully on the global stage, Eurocentrism that made domination possible in the colonial era is no longer a fact. Elsewhere in the world, the political dynamics are becoming even more complex with Arabic countries opposing Western secularization. In view of these changes, a revision of IHRL in a more inclusive and wider perspective is necessary.
The top-down approach of IHRL has been the subject of criticism of many scholars. The approach illustrates the emanation of IHRL from global elite actors, including international organizations such as the United Nations, perpetuating dominance as well as tools for domination. The top-down approach to IHRL can be criticized on two key points. Firstly, as an inevitable consequence of Eurocentrism. Secondly, as a product of a collective state-level effort which doesn’t adequately represent the ethos and aspirations of the common people.
The first has its roots in the era of colonialism and imperialism where the Western liberal democracies, in particular Western Europe, dominated international legislating. However, one could argue that the IHRL framework was set in motion following World War II, which was a more diverse stage led by the United States. Nevertheless, the final traces of colonialism were present as late as the 1970’s in states such as Taiwan. In fact, it is claimed that some regions such as Africa and even the Middle East are victims of neo-colonialism, for which IHRL is manipulated to penalize the states and its people rather than as a tool for their “salvation.”
The second criticism is closely connected and is likely giving rise to the existing IHRL violations. The states were exclusively involved in founding IHRL (as opposed to developing it later on). The charter based system’s initial stages did not involve independent experts or civil society. Implementation of this legal framework exemplifies a top-down approach. This is particularly important in using IHRL as a counter-majoritarian instrument against state power. Moreover, the political power dynamics affect enforcement of IHRL. The United States, a founding contributor of IHRL, has been criticized by many TWAIL scholars on its’ compliance with the framework, especially when it comes to issues such as torture.
Non-Inclusivity of Diverse Human Experience
The cumulative result of the above two realities has been the non-inclusivity of diverse human experiences in IHRL. Being inclusive of diverse human experience, a seemingly impossible taskattainable as IHRL is stipulated in normative and broad principles rather than ‘laws’ in a narrower and more domestic sense. An illustration of this is the Universal Declaration of Human Rights (UDHR), which is not a treaty in the strictest sense but has become binding in customary international law.
Outside evaluation of cultural diversity and non-inclusivity is a continuing problem in IHRL. This is evident in the neo liberal economic agenda of the international superpowers. The major compelling question TWAIL raises is: Can Western liberal democracies impose the blueprint for political and economic development for the advancement of other countries in the world?
TWAIL further unravels that some of the new human rights challenges before Western liberal democracies have been crippling the third world for many years such as war, terrorism, and poverty. TWAIL scholars express displeasure in the double standards of the international community in implementing IHRL. The discourse has been built around dealing with cases such as terror and torture in Afghanistan as opposed to Guantanamo Bay, and proposals for pre-emptive self-defense by first world countries such as the United States, Europe, and Russia.
In light of the above analysis one could naturally demand an alternative discourse. Scholars such as Kapur, in fact, enquire if the human rights project that “held out the promise of a grand spicy fete mutated into an insipid appetizer.” However, TWAIL scholars such as Anghie are of the opinion that there is no equally profound alternate discourse to entirely replace IHRL. Others are more hopeful and are exploring additional non-liberal emancipatory possibilities.
As the Oxford handbook states, although we may not be able to learn from the mistakes of the past, TWAIL promises a better understanding of the character of a particular legal order, its promise, and its limits. IHRL therefore should welcome TWAIL as a reconstructive project, which potentially credits the aspirations it desires to achieve.
Achalie Kumarage wishes to thank Professor Macarena Saez, Faculty Director of the Center for Human Rights and Humanitarian Law at the American University Washington College of Law, for her valuable comments on this article.