Correcting TwaillS Blind Spots: A Plea for a Pragmatic Approach to International Economic Governance

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Third World Approaches to International Law (TWAIL) has vehemently opposed classical doctrines of international law, which are perceived as being at odds with Third World interests, since its emergence. Its criticisms of international law are manifold but opposition to international economic governance (IEG) has been especially unyielding. Overtime this generated TWAIL critiques of IEG. These have manifested mainly in the new international economic order (NIEO) critique, influenced in the post-colonial era by earlier Latin American national economic control (NEC) theory. The NIEO critique refers to Third World attempts, from the 1960s to 1980s, to restructure international economic relations to establish an equilibrium between developing and industrial economies, thereby challenging the unfair international trading and finance rules advanced by developed countries. The debate has since experienced a paradigm shift towards greater critical analysis of Third World States’ participation in the global economy. This refers to the regime bias critique. Regime bias views the manner in which rules of IEG are crafted, applied and adjudicated between industrialized and developing countries, or between developing countries and the interest of global capital, as ‘unfair’. It rejects the manner in which choices are made between alternative ways of crafting rules, the meaning ascribed to a particular rule in its application by administrative agencies or at the adjudication stage by international tribunals in disputes involving developing countries. Albeit divergent in their approaches, both critiques view IEG as being at odds with Third World interests and have criticized the current regime as facilitating the post-colonial economic exploitation of Third World States only in a more nuanced manner than was the norm during colonialism. TWAIL’s critique has garnered some sophistication since its emergence. Nevertheless, it is still criticized for harboring blind spots. One such ‘blind spot’ is that while it may be the appropriate conceptual framework for leveling criticisms against international law, its criticisms, however, fail to offer pragmatic proposals for improvement. TWAIL’s critique fails to acknowledge that developing countries are generally not participating in the global economy to the degree necessary to boost their economies. This is problematic as it creates an adversarial relationship between developing countries and international law, thereby masking the potential for these States to develop under the aegis of the current regime. There exists the need for a more theoretically informed analysis than the lump-sum critique, which perceives international law as failing to take into account Third World interests. It would be more beneficial for TWAIL to be a source of reform, or more appropriately, a forum for constructive engagement of these States with IEG as this would create more meaningful participation of developing countries in the global economy.