Third World Approach to International Law

The journal of Third World Quarterly has recently published a special issue on the Third World Approach to International Law.

Third World Approaches to International Law (TWAIL) is a movement encompassing scholars and practitioners of international law and policy who are concerned with issues related to the Global South. The scholarly agendas associated with TWAIL are diverse, but the general theme of its interventions is to unpack and deconstruct the colonial legacies of international law and engage in efforts to decolonise the lived realities of the peoples of the Global South.

In addition to important critical analysis to theoretical fundamentals relevant to the study of the Third World, the special issue also deals with more immediate praxical questions of if, how, and when to deploy international legal argument, whether as sword, shield, or strategy of rupture. The concept is engaged in an open manner, in order to avoid an essentialised Third World identity, but to deconstruct it, so as to allow for a fuller disciplinary engagement with the plural, hybrid, ever-evolving, and contested performance of identity everywhere.

Some of the chapters worth reading are:

Justice Research Explored

How to do research on justice? Can we establish a specific methodology for it? Or do we need to study justice from different discipline? The editors of the Handbook of Social Justice Theory and Research attempt to substantiate the academic legacy and the research prospects of studying justice. The volume includes a wide range of topics, such as disciplinary approaches to justice research (e.g., sociology, philosophy), the theory of the justice motive, mapping of the multifaceted forms of justice (e.g., distributive justice), and justice in context-bound spheres (e.g., politics and work) and related domains (e.g., morality). In doing so, the handbook is meant both to present a comprehensive “state of the art” in the field of justice research theory and to put forward an agenda for future interdisciplinary and international justice research. The compilation of their research within a single framework exposes readers to high quality academic work that embodies past, current, and future trends of justice research.

Extraterritorial Scope of Human Rights

If you are interested in the study of extraterritorial aspect of human rights, the last edition of the Journal of the Community Law discusses this subject comprehensively. From the aspect of national courts, which regard themselves competent to examine cases connected with violations of human rights beyond the borders of the given country, to human rights treaties to be applied outside the territories of the states which are parties thereto. Reservations to treaties dealing with these issues, which are to limit their territorial application, give rise to numerous legal controversies. The special edition is also dealing with competition between the responsibility of the territorial state and the state which exercised effective control in the territory of that state or with joint responsibility.

 

Transnational Legal Processes and Human Rights

My review on the book Transnational Legal Processes and Human Rights has just been published online by the Journal of Legal Pluralism and Unofficial Law. Some excerpts from the review:

The volume deals with a wide range of problematics, not only legal and political but also economic and cultural, that occur and emerge at multiple levels. Analysis pertaining to various transnational legal processes provides insights that extend beyond the common caveats of what presumably constitute as differences with regard to human rights implementation and enforcement in developed and developing countries. Such a distinction might be implicitly suggested, as several chapters that deal with the judicial aspect and process of internalization of foreign law use cases from the United States and European countries. Networks and real-life realities, on the other hand, serve more as the common denominator for transnational legal processes of human rights as reflected in the cases on Angola and Pakistan. It should be noted, however, that insights on social and political processes that shape the challenge for judicial enforcement in those areas support the comparative style taken in this volume. Moreover, chapters are structured to reflect on contemporary challenges for and resulting from practicing human rights.

My guess is that it will appear in the first issue of next year.

Anyway, I wish everyone a good end of year celebration and a happy, healthy and prosperous year of 2016.

Methodology for Determining Customary International Law

Methodology is probably not a strong point for international courts or international law in general.

In “Determining Customary International Law: The ICJ’s Methodology between Induction, Deduction and Assertion”, Stefan Talmon argues that: to determine the rules of customary international law, the ICJ does not use one single methodology but, instead, uses a mixture of induction, deduction and assertion. Interestingly, regardless what it may say on the subject, the Court in a majority of cases has not examined the practice and opinio juris of states. It has simply asserted the rules that it applies.

The abstract partly reads:

The article aims to refocus attention on the methodology used by the Court when determining the rules of customary international law that it applies, and it highlights the role played by methodology in the development of customary international law. It starts by defining the terms ‘induction’ and ‘deduction’ and examining their use by the Court. It then explores the situations in which the Court uses inductive and deductive reasoning, the different forms and functions of deduction and the relationship between the two methods. The article challenges the various theories distinguishing between inductive and deductive custom and demonstrates that the main method employed by the Court is neither induction nor deduction but, rather, assertion.

Text is available here.