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By Namrata Madhu Raghunath
Abstract
The present research paper will discuss the concept of the Third World Approaches to International Law (TWAIL) in the field of Human Rights Laws. Part I will provide a brief overview about the concept of TWAIL and Human Rights Law. Part II will investigate the concept of TWAIL, specifically its application, and establish a link with the different jurisprudential theories. Part III will focus on protecting minority groups, specifically refugee groups, to prevent human rights violations. Part IV will conclude the paper by commenting on TWAIL and the way forward approach regarding acknowledging minority groups within Third World Nations.
Keywords: TWAIL, Jurisprudence, Immanuel Kant, Aristotle, Henry Morgenthau, HLA. Hart, Ronald Dworkin, Human Rights Laws, Refugee Laws.
I. Introduction
Third World Approaches to International Law is founded on the very notion of anti-eurocentrism, anti-colonialism and anti-imperialism. Predominantly based on the scholarship of inclusivity of third world nations, TWAIL is an evolving approach that criticizes the positivistic nature of international law. Scholars from developed countries or, as per international law, ‘civilized nations’, have investigated different areas of laws when applied to third-world nations. One such area is the ambit of human rights laws. A point of commonality among the scholars of TWAIL is the fact that they focus on how such laws affect the third world or, in other words – uncivilized nations. Delving specifically into the realm of Human rights laws, it can essentially be categorized as a set of rules that are in the form of rights so inherent to all human beings regardless of their sex, race, ethnicity and more. The right to life, freedom from slavery, and freedom from torture are some of the many rights given to all human beings. Human rights, by way of the first legal document, the Universal Declaration of Human Rights (UDHR), gained universal and guaranteed protection.[1]
When discussing TWAIL as a concept, it is elementary to mention key actors like the Global North and Global South. The Global North is a compilation of the economically developed countries situated predominantly in the northern hemisphere. On the other hand, the Global South is the compilation of developing or uncivilized countries in the Southern Hemisphere. A key point to consider is that the Global South is constituted by a multiplicity of cultural heritages and historical differences that have fostered varying patterns in their respective economies.[2] By acknowledging these elements, it is evident that the North and South divide has been exacerbated over time. With the expansion of the gap, Refugee groups, which are one of the many minority communities, have primarily suffered. The research paper aims to focus precisely on this area by discussing the influence of selective positivism by the international order during the formulation of refugee regulations and blatant disregard of third-world nations, thereby facilitating a divorce from the reality of the refugee crisis.
II. TWAIL From the Perspective of Different Jurisprudential Theories
A. Kaleidoscopic World
During her General Course at the Centre of the Hague Academy of International Law in 2017, Professor Edith Brown Weiss discussed the various concepts pertaining to international law. But the standout was the discussion about regulating international institutions through norms and a term she had coined called the Kaleidoscopic World. According to Professor Weiss, a Kaleidoscopic World consists of ever-changing actors and coalitions that play an active role in the international sphere.[3] By extrapolating this point and applying it to positivism in international law jurisprudence, it is evident that the norms governing the order never evolved. Even if they did, the system was crucial in selectively applying those norms. One of the most prominent examples of selective positivism is international criminal law principles like Nulla Poena Sine Lege (no penalty without law), which were not only applied on a selective basis but were also applied retrospectively during the Nuremberg Military Trials post the World Wars.[4] The effect of so-called selectivity was the abuse of the human rights of an accused, whose right to have a free and fair trial was violated.
B. Immanuel Kant’s Republican State System
Kant’s theory of state suggests pure democracy that challenges the unchallengeable authority of an Austinian or Bentham Sovereign. Kant suggests that a legal system's executive and legislative powers should be separated to achieve pure democracy, which will eventually lead to utility and peace. This is exactly what he called a Republican state. In the context of TWAIL and international law, Kant’s theory is predominantly based on the assumption that states that are said to be republican will never go to war with each other as it will disrupt global peace.[5] A key point to note is that Kant’s theory is in line with his notions of individualistic libertarianism or, in other words, classical liberalism. The concept of Republican states can be said to reflect ethical individualism that ultimately urges nations to work towards achieving peace. Such ethical approaches, when universalized or applied to all, give rise to the theory of Kantian Deontology, which does not provide significance to emotions.
Stemming from Aristotle’s theory of Virtue ethics, which essentially is a normative philosophical theory that promotes moral life through the adoption of virtuous habits/duties, Kantian Deontology, in many ways, is a duty-based theory.[6] A legal system can attain peace by leading a moral life by adopting virtuous notions and performing ethical duties. The primary assumption is that everyone will follow and lead a moral life to give rise to a republican state that will never wage war. But what if states go to war with other states on the grounds of self-defence or even invocation of Responsibility to Protect (R2P)[7], which essentially violates multiple international law principles like sovereignty to achieve peace? What if the reason to go to war with other states is because some of the states are not republican in nature? Kant’s theory, as per my understanding, is very idealistic and seems to disregard a nation's circumstances and ground reality. The fact that Kantian deontology and ethics disregard emotions maintains the positivist/objective narrative of any other theory that positivists formulated. This is unlike TWAIL, whose scholars aim to eliminate divorce from reality and add nuances to the scholarship, thereby making it subjective. Yet, Kant is one of the many philosophers so closely linked to TWAIL due to the type of system that TWAIL scholars aim to achieve, i.e., Universal Brotherhood.
C. Hans J. Morgenthau, HLA Hart & Dworkin -Validity of Legal Norms and its effects on TWAIL scholarship
“Legal positivism in the international sphere is nothing but a conception of the law which recognizes legal norms as valid when they are laid down by valid legislative bodies.”[8] Hans J. Morgenthau, a political realist, stated that legal positivism does not consider different elements, such as ethics and politics, that transcend and penetrate the legal world. In other words, Morgenthau placed emphasis on the fact that international law principles cannot operate in silos with politics and society as they are so closely intertwined. In his theory, Morgenthau discusses the interests of a nation in terms of power held within international politics. It is, therefore, evident that the overall well-being of a nation is interlinked with the power that the nation has in the international sphere. This is analogous to American Realism and theories generated by Axel Hagerstorm, which operated on the theme of ‘dominant interests among the variety of interests takes precedence’[9]. But the central question is whether the well-being of minority groups within the already disadvantaged group (i.e., Third World Nations) is accounted for.
By looking at theories by HLA. Hart it is evident that Hart’s theories play a crucial role in debunking or critiquing Kantian theories of duty-based ethics. This helps facilitate the process of adding nuances to existing positivism in the international sphere, thereby transforming it into a more subjective piece of work. However, the issue with Hart’s theory is the lack of fairness and justice in the process of achieving the validity of a legal norm. By not connecting the validity of laws to the consequences of the implementation of law in a system (whether it is fair or just), Hart adds to the ongoing plight of the Third World Nations by exacerbating the divorce from reality. For instance, from Hart’s perspective or legal system, international law principles that were the brainchild of the Global North will be considered valid even though they excluded the Global South during the creation of such principles.
Dworkin arises from the gap regarding the lack of elements like Justice and Fairness in Hart’s theory. Dworkin, by introducing policies as an important facet of achieving validity of legal norms, tweaks Hart’s theory while simultaneously closing the loop to include elements like justice and fairness. As per my understanding, Dworkin’s theory regarding the legal validity of norms is farthest from positivism and leans more towards a formalistic approach, which eventually adds nuances to objective theories to make them more subjective and in line with the ground reality of situations. This is what Dworkin’s interpretivism basically analyses events or actions based on beliefs, norms and values followed in that society (or followed in the place where the event occurred)[10]. In the context of TWAIL, Dworkin and, to some extent, Morgenthau can be considered to depict the actual consequences of third-world nations. This is solely based on their theories, which seem to operate so that they acknowledge the ground reality of uncivilized nations when international law principles are applied. But the primary question persists. Do TWAIL scholars consider the impact on minority groups like Refugee groups, specifically their human rights violations?
III. The Reason for the Worldwide Refugee Crisis
A. Who is a Refugee?
After the Cold War, the world accelerated steadily in refugee studies. Specifically, in the 1980s, the Global North formulated a definition of a refugee following the influx of refugees into Europe/Global North. Who exactly is a refugee? According to the definition provided by the Global North, a refugee is predominantly white, male and anti-communist.[11] Influenced heavily by the political tensions surrounding the international community during the Cold War, a deviation from the positivistic tradition of implementation of norms was witnessed. This is a noteworthy point, as it is ironic for legal positivism to account for the politics surrounding the world at that time. As discussed earlier, Morgenthau emphasized that legal positivism fails to account for socio-political elements. The fact that the structure of Cold War politics performed the evolution of refugee studies is essentially the problem that TWAIL scholars find with the Global North - it is very selective in applying jurisprudential theories (like positivism) and norms (like refugee norms). Arguments presented by the global north, specifically the US, are worth noting as they discuss the justification provided for disregarding refugees from third-world nations and adhering to the “limited” definition of who a refugee is under the 1951 Convention.
B. Stance of the Global North v TWAIL Scholarship
As per the Chimni Article [12], the US represents the North, which proposed certain arguments regarding the refugee crisis. Some of the arguments were that refugees from third-world nations seek better lifestyles and economic prosperity, thus migrating to countries in the European continent. The most crucial argument was regarding the events that instigated the crisis. According to the Global North, the crisis is facilitated through internal rather than external/international conflicts. At this point, I would like to introduce the primary definition of a refugee provided under the Refugee Convention. A refugee is “owing to a well-founded fear of being persecuted for race, religion, nationality, membership of a particular social group or political opinion.”[13] A cursory glance at the definition is sufficient to determine that the definition is limited in nature and does not consider multiple other elements that could lead to migration or refugee crises like economic crises or even climate change.
The existence of a non-evolving norm that is valid, not fair/just, is analogous to Hart’s theory about norms. TWAIL scholars have extensively argued about the Global North’s stance on the crisis. All but pointing to the fundamental issue, i.e., lack of inclusivity and disregard for the third world while formulating the norms. One of the central arguments TWAIL scholars made is regarding the crisis's inception. Scholars like Claudena Skran and Michel Chossudovsky have played a pivotal role in pinpointing the root causes of the refugee crisis worldwide. The point of commonality is perfectly captured in B.S. Chimni’s article[14], which states that “mass refugee movements were generated by common historical processes which range from the transformation of empires to homogenization of nations by way of colonization.”[15] A crucial point that both scholars tried to get across was the fact that the world wars that dominated the latter half of the 20th century, the colonization of nations and the constant interference of the global north into the affairs of the global south/de-colonized nations (post-de-colonization), were the root causes of all internal conflicts witnessed today.
If we consider mass migratory movements from countries like Venezuela and Sri Lanka, it is evident that the reason is economic. However, the cause is rooted in the colonial history of the country, which was colonized by Spain and the British (respectively). Further, in the case of Sri Lanka, the interference of international institutions like the IMF[16], predominantly (for lack of a better word) controlled by the global north, exacerbated the economic crisis that eventually led to the mass exodus of people. Similarly, the Myanmar crisis is one of the many events that occurred to showcase cases of mass violations of human rights. Forced displacement is on the rise due to the genocide committed in the country. The fact that refugee norms or international norms, in general, never included the inputs of the global south/de-colonized nations poses a huge problem when dealing with present realities of crises such as the Myanmar crisis. The lack of realization is problematic as it leads to graver violations of human rights, all due to delayed responses by those in the global north who possess the ultimate power.
IV. Conclusion
The failure to recognize the fact that there is a lack of inclusivity during the process of formulating norms, especially regarding minority communities like refugee groups, leads to the so-called divorce from reality. The limitations presented by the definition of a refugee under the 1951 document are problematic as it fails to acknowledge the lack of inclusivity and promotes the ignorance of nations towards their mistakes. Ultimately, it helps the global north avoid accountability for its historical actions. This creates a system wherein norms lack elements of fairness and justice that are essential for safeguarding human rights.
It is, therefore, important for TWAIL scholars to also bring light on issues about minority groups like refugee groups and to initiate discourse in the global community. Once brought forth, the natural course of debate and deliberation helps shine a light on past and present errors committed by the North and facilitate accountability among the global North. Granted, elements of Dworkinism are seen in today’s world through policies. However, it is performed by an exclusive group that wants to remain unchallengeable and retain power imbalance within the community (Like an Austinian system). This creates a hierarchical system that cages the global south to be inferior (like a Kelsonian system). Thus, it is pivotal for rising scholars in TWAIL to make choices that acknowledge the socio-political realities and to understand and showcase the ground realities of the third world.
References
[1] UNCHR, ‘What are Human Rights?’, https://www.ohchr.org/en/what-are-human-rights.
[2] B.S. Chimni, ‘Third World Approaches to International Law: A Manifesto’ (2006), https://www.jnu.ac.in/sites/default/files/Third%20World%20Manifesto%20BSChimni.pdf.
[3] Vol. 39, Edith Brown Weiss, ‘Establishing Norms in a Kaleidoscopic World’ (2020).
[4] Vol. 11, Hans Leonhardt, ‘The Nuremberg Trials: A Legal Analysis’(1949) https://www.jstor.org/stable/1405160.
[5] Anthony Anghie, ‘History & International Law’, 2016, https://legal.un.org/avl/ls/Anghie_IL.html.
[6] Rosalind Hursthouse, ‘Aristotle and Kant’, 2001, https://academic.oup.com/book/2302/chapter-abstract/142431814?redirectedFrom=fulltext&login=false.
[7] R2P is essentially a global political commitment towards preventing the commission of crimes such as genocide, ethnic cleansing, crimes against humanity and war crimes.
[8] Carmen Chas, ‘Hans J. Morgenthau’s Critique of Legal Positivism: Politics, Justice, and Ethics in International Law’, 2023.
[9] Brian Bix, Chapter 17, ‘American Legal Realism’.
[10] Interpretivism (Interpretivist) Research Philosophy, https://research-methodology.net/research-philosophy/interpretivism/.
[11] Vol 11, B.S. Chimni, ‘The Geopolitics of Refugee Studies: A view from the South’, (Journal of Refugee Studies 1998).
[12] Ibid 11
[13] 1951 Refugee Convention, https://www.unhcr.org/sites/default/files/legacy-pdf/3b66c2aa10.pdf.
[14] Supra 11
[15] Vol 11, B.S. Chimni, ‘The Geopolitics of Refugee Studies: A view from the South’, (Journal of Refugee Studies 1998), pg. 358.
[16] IMF – International Monetary Fund is a financial institution of the United Nations. https://www.imf.org/en/Home.
Namrata Madhu Raghunath is a fourth-year law student at O.P. Jindal Global University. Her areas of interest are International Laws and the intersections of criminal and refugee laws.
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