Checklist of TWAIL Scholarship and Political Action

“Third World” -although there is wide diversity among Third World societies, the term is historicized as part of a strategic paradigm for
resistance and liberation. The 'Third World" must therefore be understood as a direct attack on the Western hegemony of the globe.

 The term Third World is different from less-developed, crisis-prone, industrializing, developing, underdeveloped, or the South
because it correctly captures the oppositional dialectic between the European and the non-European, and identifies the plunder
of the latter by the former.
 The Third World consists of the victims and the powerless in the international economy.

Any TWAIL scholarship or political action must be fundamentally oppositional to an important question in international law. At a minimum,
the author or political actor exposes, attacks, or unpacks a particular phenomenon that is inimical to the Third World. This is the most
fundamental characteristic of TWAIL scholarship and political action.

TWAIL Is Antihierarchical

Twailian scholarship disavows the universalization of specific cultures under the guise of promoting global order, peace, and security. It
sees the current regime of international law as illegitimate because it is based almost entirely on the intellectual, historical, and cultural
experiences of one region of the world. It privileges Europe, European knowledge and things European.

International law has perhaps been the most important weapon in the spread of Eurocentrism, which has been presented as the
pinnacle of human civilization. TWAIL, in contrast, assumes the moral equivalency of cultures and peoples and rejects "othering," the
creation of dumb copies of the original.


TWAIL Is Counterhegemonic


TWAIL opposes the global hegemony of the West, which the United Nations legitimizes through the cloak of universality. TWAIL
regards the structure of the United Nations, and in particular its Security Council, as completely indefensible. The West, led by the
United States, polices every corner of the world, ready to pounce on those it deems a threat to its interests

The project of TWAIL advocates the full representivity of all voices, particularly those non-state, nongovernmental, rural and urban poor
who constitute the majority in the Third World. TWAIL calls for the full democratization of the structures of both national and
international governance so that all voices can be heard.

TWAIL Is Suspicious of Universal Creeds and Truths


TWAIL frowns on attempts to confer universality on norms and practices that are European in origin, thought, and experience. It is of
particular concern when such norms are given the sanction of international law, and therefore become a requirement for non-European
societies. This has certainly been the case with human rights and particular economic values, such as the protection of intellectual
property through the treaty on Trade Related Aspects of Intellectual Property Rights (TRIPs).

A distillation of universal values may be possible in certain cases, but how that process is conducted makes all the difference.

TWAIL Is a Coalitionary Movement


TWAIL believes that forming coalitions with like-minded movements in all societies, including in the West, is an essential strategy for
combating powerlessness and the victimization of the Third World and marginalized communities in the West. In this respect, TWAIL
seeks deliberate complicity and alliances with a number of scholarly communities, particularly those advocating critical race theory
(CRT) and new approaches to international law (NAIL)

TWAIL is a historically located intellectual and political movement. It is therefore a form of intellectual consciousness that is not
automatically bounded by geography, although its originators and most authentic thinkers have been from the Third World. TWAIL is
not simply an intellectual trend, an academic pursuit. It is a political and ideological commitment to a particular set of views. That is why
TWAIL is fundamentally a reconstructive movement that seeks a new compact of international law.

What is Twail: Comment by Antony Anghie

One of the important characteristics of TWAIL, together with Critical Race Theory and Lat-Crit Theory approaches to international law,
is as Professor Mutua puts it, the unpacking of the uses of international law as "a medium for the creation and perpetuation of racialized
hierarchies."

TWAIL is a reconstructive project which aims at eradicating the conditions of underdevelopment in the Third World. Third world jurists,
for several decades now, have made a number of concrete proposals for the reform of the international system; very few of these
proposals have been adopted. What is troubling is that in many instances, the proposals are based on values which the international
community claims to further and adhere to --- nootions of democracy and the rule of law, for example.

TWAIL presents a distinctive voice in the field of international law. But seen in a larger perspective, TWAIL does no more than to make
real the promise of international law to transform itself into a system based, not on power, but justice.
Civil Jurisdiction

R.Y Jennings, Extraterritorial Jurisdiction and the US Antitrust Laws; Sherman Act of 1890 and Federal Trade Commission Act and
Clayton Act of 1914

 Intended to protect trade and commerce against unlawful restraints and monopolies should not contradict the local law.
 The discussion revolved primarily on the exercise of extraterritorial jurisdiction, in this case, for the purpose of applying the US anti-
trust laws.

1. General Rule: Jurisdiction is governed by the principle of territoriality

 a state is competent to punish crimes committed within its own territory.

Extension of the territorial principle – The offense is deemed committed within a state’s territory when one of its constituent elements,
more so its effects, take place there. This applies in the following cases:
(1) the act was commenced within the state but consummated in another state (subjective principle); or
(2) the act was commenced in another state but consummated within the territory of the subject state (objective principle).

This is in fact an exercise not necessarily of extraterritorial jurisdiction, but of territorial jurisdiction – except extended. The objective
principle is said to apply where the act produces effects to the territory of the state, but such “effects” must be limited to only those which
are a direct consequence of the act (proximate cause). Intent is immaterial

Exception: There may be extra-territorial jurisdiction, but this is subject to the principles of international law, and there must be limits and
underlying justifications for its exercise, lest it be subject to abuse.

Even if an act was lawful where it was done, it may still be made unlawful in another jurisdiction – especially if there is prejudice to the
safety and interests of the latter.

Exception to the exception: the extra-territorial exercise of such jurisdiction must not be permitted to extend in such a way as to amount
to interference with the affairs of another sovereign state, in which case, it amounts to abuse.

2. The principle of nationality – international law permits a state to claim jurisdiction over its nationals (natural or juridical) without
territorial limit.
 With regard to corporations, the courts can apply not only the place of incorporation test but also other tests such as control test to
determine nationality and activities.

3. The passive territoriality principle – a state may claim to punish aliens for offenses committed abroad to the injury of its own nationals.
This is also known as the “protection principle.”
 This is the most questionable of all grounds – considering that when a person resides in another territory, he must then seek redress
based on the laws of that place, and not from the laws of his state.

4. The security principle – a state may exercise extraterritorial jurisdiction over crimes directed against its security, territorial integrity,
credit, or interests.
 This is reasonable considering that most states do not punish persons for offenses directed against other states. But this rule must
be limited to prevent abuse; the Harvard draft code proposes that it should not cover acts done under cover of a liberty guaranteed
under local law.

5. The universality principle – the suppression of crime is an interest common to all states.
 This rule is specifically applicable to such crimes as piracy, where the offender is deemed an enemy to all mankind – a hosts humani
generis
ASEAN Charter

Member States: Article 04

1. Brunei Darussalam;
2. Kingdom of Cambodia;
3. Republic of Indonesia;
4. Lao People’s Democratic Republic;
5. Malaysia;
6. Union of Myanmar;
7. Republic of the Philippines;
8. Republic of Singapore;
9. Kingdom of Thailand;
10. Socialist Republic of Vietnam.

Legal Personality: Article 03

“ASEAN, as an inter-governmental organization, is hereby conferred legal personality.”

Rights and Obligations: Article 05

1. Member States shall have equal rights and obligations under this Charter;
2. Member States shall take all necessary measures, including the enactment of appropriate domestic legislation, to effectively implement
the provisions of this Charter and to comply with all obligations of membership.
3. In the case of a serious breach of the Charter or non-compliance, the matter shall be referred to Article 20 (reference to the ASEAN
Summit for decision)

ASEAN SUMMIT: Article 07

- the supreme policy-making body of ASEAN
- comprised of the Heads of State or Government of the Member States