International law:

 International Law is a body of principles & rules commonly observed by States and other
international personalities in their mutual relationship with each other.
 It is regulated by the treaties and globally accepted norms and customs.
 The term “International Law” was coined by British Jurist Bentham.
 Before this nomenclature, the International Law was known as the “Law of Nations”.
 The primary purpose of the Public International Law is to maintain a just system of
international relations.

Subjects of international law:

 Traditionally, international law was known as law of the nations which meant the law
governing relations between states.
 However, with the establishment of international organizations, it has become necessary
that a sort of international legal personality be granted to these entities.
 Thus, international organizations become subjects or persons of International Law.
 Beside States and international organizations, non-States entities such as members of federal
States, belligerents, insurgents, national liberation movements, and international territories
are granted a sort of international legal personality.
 Moreover, individuals, ethnic minorities, and indigenous peoples are also considered, in
certain circumstances, subjects of International Law.
 During the Second World War, the trend of International Law had been towards attaching
direct responsibility to individuals for crimes committed against the peace and security.
 The Charter of the Nuremberg International Tribunal of 1945 provided specifically for
individual responsibility for crimes against peace, war crimes and crimes against humanity.

India and its relationship with international law:

 There are two principal theories on the relationship between international law and municipal
law: Monism v. Dualism.
 Dualism: (positivist)
 Positivism stresses the overwhelming importance of the state and tends to regard
international law as founded upon the consent of states.
 It is actual practice, illustrated by custom and by treaty that formulates the role of
international law, and not formalistic structures, theoretical deductions or moral
stipulations.
 Accordingly, when positivists such as Triepel and Strupp consider the relationship of
international law to municipal law, they do so upon the basis of the supremacy of
the state, and the existence of wide differences between the two functioning orders
 Dualism view the rules on international law and those of the national legal systems
as distinct system/separate bodies of law, operating independently of each other-
cannot overrule the other.
 The bases of this theory lie on the supremacy of the state.
 The dualist approach maintains that international law cannot interfere with the
municipal laws as long as such rules of international law are not incorporated in the
municipal laws.
 The international norms and rules are incorporated into the national legal systems
through specified mechanisms and before such incorporation they have no effect in
the national legal system.
 
In a dualist State, it is of utmost importance that international law has to be drafted
in its Municipal law in order to give it an effect.
 India, UK
 Monism: (naturalist)
 In the monist view, the international and national legal systems are part of the one
unified system and therefore rules of international law are applicable in the national
systems without the need of any further action.
 They support the unitary view of law as a whole and are opposed to the strict
division posited by the positivists.
 International law gets automatically accepted and the contradicting part of any
municipal law automatically gets translated away the moment the State ratifies the
treaty.
 For example, if a particular state has ratified international human rights convention
and its national laws restrict a certain freedom; the person being prosecuted can
include the argument that the national laws are in violation of international laws and
the judge would require the national law to stand invalid.
 This approach places international law at a higher platform in respect of municipal
laws; it creates a legal order which allows municipal laws to follow the international
rules. However, if any contradiction arises between both the laws, then international
law would supersede the municipal laws and the national law would stand invalid.
 France, Kenya, Netherland, Russia

Different approaches to International Law: positivism and naturalism

TWAIL:

 Third World approaches to international law is a critical school of international legal

scholarship.
 This approach criticises international law as a system which legitimizes, produces and
sustains the subordination and oppression of the third world countries by the west.
 It argues that international law objective of universality, global order and stability does not
make international law just, equitable and legitimate code of global governance of the third
world.
 It also argues that the construction and universalization of international was only a tool for
the Europeans to expand their conquest and domination.
 It also argues that international law is Eurocentric and Christian centric which does not
embody the struggles and aspiration of the third world countries.
 Historically, Third world countries view international law not as a tool for resistance and
liberation but rather a regime for domination and subordination.
 This broad opposition to international law is referred to as Third World Approach to
International Law (TWAIL)
 It seeks to re-examine the foundations of international law.
 “Third world” must not be understood in the context of poverty, developing, barbaric,
underdeveloped etc but rather it should be understood as a direct attack on the western
hegemony of the globe.

History of TWAIL:

 Not a recent phenomenon- dates back to the decolonization movement after WW-II.
  The Bandung conference, 1955 between the African-Asian states is considered as the
birthplace of TWAIL as in in conference, inter alia, with the shared history of colonization,
states addressed the similar issues faced by them- resistance against colonization.
 TWAIL is a response to decolonization and the end of direct European rule over non-
European states.
 It is described as a reactive and proactive response to their condition:
 Reactive in the sense it responds to international law as an imperial project.
 Proactive because it seeks to internally transform the conditions in the Third World
countries.
 TWAIL has 3 basic objectives:
 Firstly, to understand, deconstruct and unpack the uses of international law as a
medium for the creation and perpetuation of a racialised hierarchy of international
norms and institutions that subordinate non-Europeans to Europeans.
 Secondly, it seeks to construct and present an alternative normative legal
framework for international governance.
 Finally, it seeks to eradicate the conditions of underdevelopment in the Third World
through scholarships, policy and politics.

Why did the approach develop?

 International law is criticised by Third world scholars because it sets Europe at the centre,
Christianity as the basis for civilization, capitalism as innate in humans and imperialism as
a necessity.
 Even the concept of ‘sovereign statehood’; is defined by the European imperial powers
whose vocabulary is applicable only between the European states and therefore justifies
any other conquest on non-European. Barbaric actions were morally and legally justified in
furtherance of colonialism.
 After the end of the WWII and with the emergence of newly independent countries, the
political independence of these countries remained an illusion.
 They newly independent countries were still bonded-politically, legally and economically- to
the west.
 The formation of UN was dominated by western powers- although the purpose of this
collective global system was supposed to be an organization which is neutral, universal and a
fair guardian- in reality, the power was transferred to the big powers- the permanent UNSC
members.
 The domination of UNSC over UNGA made a mockery of the notion of sovereign equality
among states.
 The emergence of the cold war and the bipolar pursuance of power also put west at its
centre.
 In the context of economy, the third world countries were also ignored when the Bretton
woods system was signed in 1944 which led to the formation of IMF and GATT.
 In the eyes of all these institutions, the newly emergent states remained marginal and at
the mercy of the Western capital.
 It was in this background; the Group 77 was signed in 1964 by the non-aligned countries and
also its proposal for New International Economic Order (NIEO)
 The era of globalization and the push for single global market continues to reflect the
imbalances that continues to persist in the international order.
 Due to all these factors, TWAIL was born in the spring of 1996 when a group of Harvard Law
School graduate students came together to discuss, ‘whether it was feasible to have a third
 world approach to international law and what the main concerns of such an approach
might be.’
 The first TWAIL meeting was held in March 1997 at Harvard University.
 The primary objective was
 to cross-examine international law’s assumed neutrality and universality in light of
its longstanding association with imperialism, both historical and ongoing.
 A parallel purpose was to delineate new emancipatory agendas – new
decolonisation agendas – for a rapidly globalizing world. As B.S. Chimni later put it in
his TWAIL Manifesto, ‘the threat of recolonisation’ has continued to haunt the
Third World. Facing this reality, a new set of tools had to be developed to ‘address
the material and ethical concerns of third world peoples.’
 In their commitment to interrogating the relationship between international law and the
conditions of the Third World, this initial group of TWAILers were clear about the importance
of honouring an already well-established lineage of international lawyers, political actors,
and intellectuals from the South who had long grappled with the fluctuations and
complexities of the international legal order.
 In particular, they had in mind those whose roles during the decolonisation period were
critical for bringing about the end of ‘formal’ imperialism.
 To make sense of this long South-oriented international law tradition, Antony Anghie and
Chimni coined the terms ‘TWAIL I’ and ‘TWAIL II’: the former to refer to the scholarship
produced by that first generation of post-colonial international legal actors; the latter to
scholarship that ‘has broadly followed the TWAIL I tradition and elaborated upon it, while,
inevitably, departing from it in significant ways.’
 In charting this retrospective chronology, Anghie and Chimni stressed the commitment to
intergenerational training and learning that has been so fundamental to TWAIL. At the same
time, they were able to highlight the pioneering work of contemporary TWAIL (II) scholars in
questioning the conditions of the South from a more global and intersectional perspective.
The job of TWAIL I was to wrestle with formal imperialism at home.

TWAIL I and II:

 The approaches taken by TWAIL I scholars are:

 Firstly, it accused colonial international law for legitimizing the subjugation and
oppression of Third World peoples. Such as exclusion of non-European states from
the concept of sovereignty, upheld the legality of unequal treaties between
European powers and non-European power and legalising the acquiring of
sovereignty over non-European societies by conquest.
 Secondly, it emphasized that pre-colonial Third World states were not strangers to
the idea of international law. For instance, they pointed out how sophisticated legal
system also existed in other non-European societies.
 Thirdly, it adopted a non-rejectionist stance towards modern international law.
They believe that the contents of international law can be transformed to take into
accounts the aspirations of the newly independent states which can be achieved by
bringing changes to the UN system. Such as making the UNGA resolutions have
some binding legal effect. It attempts to create a more democratic and participatory
system of international law. It laid great emphasis on the principles of sovereign
equality of states and non-intervention.
 Fourthly, it understood that political independence is not sufficient to achieve
liberation but it should be coupled with economic independence. It sought
 structural changes in the international economic system for newly independent
states and also to regain effective control over their natural resources and foreign
investors.
 TWAIL II:
 TWAIL II scholarship has attempted to reassess both the relationship between
international law and the Third World, and the approaches outlined by TWAIL I.
 It attempted to further develop the analytical tools necessary to deal with Third
World realities in a continuously shifting international setting.
 Firstly, while recognizing the fundamental importance of the doctrine of sovereignty
to protect the third world states, TWAIL II scholars have developed critiques to third
world states too- such as resorting to violence and authoritarianism, the
importance of giving a voice to the women, minorities, workers etc whose plight
has been excluded by twail I scholars.
 Secondly, they have tried to explore how international law has worked to the
disadvantaged of the third world countries but at the same time it also tried to
explore how international human rights norms can also be used to protect the
third world people against state and other international actors.
 Thirdly, since it is argued that international law has justified and legitimised the
suppression of third world people using techniques such as civilising mission
(development, good governance, democratization, human rights) TWAIL II focusses
explicitly on the methodologies of international law and how these methodologies
address or precludes third world issues.
 Fourthly, TWAIL II scholars made a close inquiry into the extent to which colonial
relations had shaped the fundamentals of international law. Rather than seeing
colonialism as an external to international law, they focused on the proposition that
colonialism is central to the formation of international law– such as which
doctrines of international law has been created through colonial encounter.

India and its Relationship with International Law:

 The history of India and international law can be divided into 2 phases:
 The first phase lasted from 1600 to 1857 when the East India Company arrived in
India and slowly evolved into a company-state.
 Second phase: 1857-1947
 First phase:
 Native Indian states for centuries carried on trade with other nations of the world.
 Their ports were regularly visited by ships and merchants from every region whose
wealth was coveted by all especially Europeans.
 The Portuguese came first in 1498 to Calicut with the landing of Vasco De Gama
followed by Dutch, French and English.
 When the Britishers arrived in India in 1600 under the charter issued by the Queen
of England, they expanded their company and eventually exercised both commercial
and sovereign powers.
 The company entered into numerous treaties with the native rulers. (treaty of
Allahabad, subsidiary alliance treaty etc)
 Eventually, the company became a ‘virtual state’ and began to wage war,
administered justice, collecting revenues etc over Indian territory.
  This unique phenomenon, of a company representing British imperialism in India
refutes the claim that states were historically only the subjects of international
law.
 Second phase: 1858-1947
 It was only after the first war of independence in 1857 that the question of the
sovereignty of the British Crown was clarified.
 On 1st November, 1858, Proclamation of Queen Victoria was issued to take over the
territories that were being administered by East India Company.
 The Government of India Act 1858 ‘transferred the government from the Company
to the Crown, and vested in the Crown all the territories and powers of the
Company.
 The 1858 Proclamation also ‘announced to the native princes of India, that all
treaties and engagements made with them by or under the authority of the East
India Company are by us accepted and will be scrupulously maintained, and we
look for the like observance on their part’- relationship between the crown and the
states.
 British assumed a policy of non-interference towards the 562 native or princely
states although they deprived them of their foreign policy. (Suzerainty)
 1919-1947:
o During this period, British India actively participated in international law-
making processes and in international institutions.
o It became one of the original members of the league of nations. (Only
colonial state to become a member)
o This is the reason why India’s position during this time is termed as
“anomalous international person’ – the external sovereignty was tacitly
recognised by the sovereign states.
o In international forums, India pursued a line of action independent of the
wishes of the Majesty’s government.
o India signed numerous multilateral treaties.
o India also became one of the original members of GATT.
o Participated in the drafting of the UN charter.
o Another anomaly was that British India and the princely states were
together represented at the League.
o However, in reality, the princely states were reluctant to apply the many
conventions that India has ratified to.
o Therefore, in many instances the British Government noted that a particular
convention would not apply to princely States.