I have much to agree with in the remarks of Professor Otto and Professor Santos--particularly their focus on the postcolonial and the distinction between Freud and Stiglitz in thinking about discontents.
I want to make three interrelated arguments: first, international law's discontents have always been its peripheries, whose relationship to the core of international law has been historically captured by the TWAIL scholarship; second, this periphery (which, following current conventions, I shall call "the global South") is itself a complex arena now, not solely defined by victimhood but by a hegemonic and a counter-hegemonic global South which are themselves in tension; and third, that the rise of complexity and tension within the global South is symptomatic of the general crisis of the global economic and political system, symbolized most recently by the global economic crisis, but in fact much deeper and much longer in duration. This crisis could be both a moment of opportunity and challenge for international law, but that depends on which global South ends up having influence on the evolution of international law and how it relates to the hegemonic global North.
Perhaps the most important critique of modern international law has been the charge that it is a Eurocentric regime, which has helped to erect and defend a world of deep injustice characterized by violence, exploitation, and inequality. This critique, which we can term as one coming from the Third World, or from the perspective of the cognitive and material justice issues raised by taking the Third World seriously, is what I want to talk about.
In terms of international law, the various elements of this critique can be discussed under the rubric "Third World Approaches to international Law" (TWAIL). (1) I will divide these generations of critique into two: TWAIL I and TWAIL II (and may continue as future versions).
TWAIL I began around the turn of the 20th century with the articulation of the Calvo and Drago doctrines; a critique of imperialism; the rise of Japan; the establishment of administration of colonies under international control instead of under colonial powers; the call for a new welfarist function for international law; and a rethinking of international law as administration. This picked up in momentum after World War II and decolonization when developing countries began challenging core elements of traditional international law. The scholarly work by Mohammed Bedjaoui, RP Anand, TO Elias, and many others, infused by the spirit of Bandung, outlined the main elements of this critique in academic terms, but what gave it global historical importance was the resistance posed by the people of the former colonies. These scholars were exercised by their desire to turn international law from its Eurocentrism toward more universality, and more legitimacy.
I would characterize this tradition, following the Freud-versus-Stiglitz framing for this panel, as the Stiglitzian version of international law, because, like Stiglitz--who believes that it is the failure of globalization to benefit everyone equally that is the problem and therefore we should work to make globalization work for all--TWAIL I believed that it is the failure of international law to be truly universal that contributed to all its moral and political failure, and therefore we need to make it truly universal. Legal doctrines such as PSNR (permanent sovereignty over natural resources) or the sources doctrine were articulated in a way that shows this to be the case.
If we contrast this with TWAIL II, there is a very interesting shift from Stiglitz to Freud. There is a shift from looking at international law's absence as the source of all problems, to looking at international law's presence as an often unwitting but sometimes conscious instrument of injustice. TWAIL II is committed to the objective of democratizing the international legal system and making it work in a just manner, even as it has abandoned the faith that TWAIL I reposed in key ideological assumptions such as the central role of the nation-state and its ability to bring about outcomes that benefit humanity as a whole as well as that of the planet. …