This article draws parallel between Crawford and Third World Approach of International Law (TWAIL)’s position of “sovereign equality of states” that has been the defining characteristic of the international system. Both TWAIL and Crawford have underscored the importance of “sovereign equality of states” in international law, specifically for states who may not have equitable resources or power in comparison to the most powerful states that can be seen through the abject poverty faced by these states. The core of the issue being the concentration of power with the powerful states in the international legal, political, and economic order.
Both TWAIL and Crawford have repeatedly highlighted the legacy like negative consequences of colonization and de-colonization on states and the individuals residing within these states as their responsibility gets shifted to the government and the legal system of the new state. As a result, their ability to effectively practice “sovereignty and equality” gets affected as it is contingent upon the acceptance by other states or the international community.
However, Crawford puts away this intersectionality during his work at the International Law Commission (ILC), when “sovereign equality of states” does not make it to the ILC’s list of peremptory norms. Similarly, TWAIL, call for the need for dialogue to establish content of the universally accepted norms like sovereign equality to fully represent the voices of the non-state; non-governmental, rural, and urban poor residing in the third world countries. In this context, the authors attempt to identify whether this similarity is real or circumstantial?
1 Crawford and Sovereign Equality of States
James Crawford’s legal education, research, and early writings on issues in international law happened between 1960 and 1980.1 This is a time when most colonised countries gained independence,2 emerged as new states and therefore the concept of statehood and equality of states was a very topical and timely area of the global discussion. This is also the age when imperialism persisted, though fading.3 This period was crucial in the life of Crawford who emerged as an Australian judge, international lawyer,4 and scholar for the world.5
He was never interested in the local domestic practice of law after he finished his legal education.6 With his aspirations, he approached Dan O’Connell from Oxford University, who then suggested he write a doctorate with him on 18th-century legal history concerning the transfer of territory and ‘early manifestations of ideas of self-determination’.7 However, he said he was not interested in purely history or theory, and settled for another theme for his doctorate.8 Later, he approached Ian Brownlie to write a ‘book on creation of states, the acquisition of statehood’.9 Even today, this theme would be widely regarded as a research intensive and big theme for a doctoral student to write about. Crawford ended up submitting a detailed 1200-page doctoral thesis to the university.10 Through his early interaction, research, and writing on the concept of statehood, Crawford has contributed immensely to the conceptualisation and progressive understanding of the principle of ‘sovereign equality of states’.11
2 The Concept of Sovereign Equality of States in the 21st Century
The principle of sovereign equality of states was fundamental to international law long before it became part of the Charter of the United Nations (‘UN Charter’).12 Even the International Court of Justice (ICJ) recognised the principle of sovereign equality as the basis of securing the rights of states like territorial integrity and political independence; ensuring state immunity, for interpretation of treaties and customary international law.13 This recognition of the principle extends for each state to choose and develop its own social, economic and cultural systems and is accompanied by its duty to comply in good faith with its obligations under international law.14 In this light, the existence of sovereign equality holds great significance because in the past the standard of civilisation was used as a doctrine that facilitated the legitimation of imperial rule, resulted in the exclusion of non-European and non-Christian states from the international society and acted as an obstacle in developing a mature and inclusive international legal order.15
However, post-World War II and the creation of the UN, the principle of sovereign equality was recognised through various resolutions of the General Assembly like the 1960 Declaration on the Granting of Independence to Colonial Countries and Peoples.16 In a similar vein, the 1970 Declaration on Principles of International Law Concerning Friendly Relations and Co-Operation among States in accordance with the Charter of the United Nations17 emphasises equality of all states before the law in its membership status as well as their respective rights and duties notwithstanding their economic, social, and political differences.18
Despite its significance, the status of the principle of sovereign equality of states as a jus cogens norm also has been a matter of debate.19 During the discussions at the International Law Commission (ILC) it was argued that the principle of sovereign equality fulfils the conditions set by the ILC, and can be recognised as a peremptory norm.20 Such conditions include being a norm of general international law that is accepted and recognised by the international community of states and a norm that can only be modified by a subsequent norm of general international law having the same character.21 The reason for this can be traced to the fact that the universalisation of sovereignty entails within itself the right to be different and equal at the same time making distinctions between states and sanctioning the states that do not adhere to rules and duties under modern international law.22 The sentiment remains that States establish themselves as equal members of the international community as soon as they achieve an independent and sovereign existence.23 Aalberts, quoting the International Law Commission, states that ‘[i]f it is the prerogative of sovereignty to be able to assert its rights, the counterpart of that prerogative is the duty to discharge its obligations’.24 Notwithstanding the importance of the principle, the principle remains undervalued and has a long way to be recognized as peremptory.
Today, the concept of sovereign equality of states includes four principles: (i) the states are juridically equal which means it is not subservient to any nation’s law ie its legal independence from other states; (ii) that each state enjoys the right inherent in full sovereignty; (iii) that the personality of the state is respect, as well as its territorial integrity; (iv) that the state should, under international order, comply faithfully with its international duties and obligations.25 Every sovereign state must respect the independence of every other sovereign state, and the court of one country should generally not adjudicate the acts of the government of another sovereign country, done within its territory.26
3 Crawford on Sovereign Equality of States
He believed that the aspects of sovereign equality formulated the ‘core legal characteristics of a state’,27 hinting at the peremptory nature of the principle.28 Firstly, he believed in juridical equality of states where all states had equal international competence ‘to perform acts, make treaties and so on’.29 He reinstated the understanding that ‘States are formally equal’ under ‘a formal idea if ever there was one, is an obvious target’.30 He believed in some form of equality between the states and believed that this equality was deduced from sovereignty.31 Crawford reinstated the idea that the UN and its Charter was ‘based on the principle of sovereign equality of all its members’,32 at the same time, he stated that the Security Council has ‘extensive powers’.33
Crawford studied the juridical personality of states and the consequence for the rights, duties, and equalities of states,34 allowing authors to decipher what Crawford understood about the sovereign equality and juridical personality of states. Crawford commented that the development of modern international law was realised ‘in the course of the substantial (and historically rather recent) suppression of the non-Western world’.35 He also acknowledged that concepts like ‘civilization’ in international law were used as ‘a form of the exclusion of non-Western values, of non-Western identity and even of legal personality’.36 During the 19th century when Western scholars developed the concept of ‘failed states’ for ‘post-colonial third world states’,37 Crawford discarded it,38 for its negative meaning exclusively attached to the third world developing countries.39 Crawford stated that ‘a State is not necessarily extinguished by substantial changes in territory, population, or government, or even, in some cases, by a combination of all three’.40 Crawford noticed the assertions that most developing countries or ex-colonies,41 were considered a failure due to underlining assumptions that a state fails if its weak economically, socially and politically.42 Soon he negated this assumption by underscoring that 20th century failures were caused by strong regimes with colonial tendencies like ‘the Third Reich’ and ‘Stalin’s Russia’.43 He also questioned the modern doctrine of sovereignty as a problem and challenge to international law,44 while supporting more equitable measures to support third world countries.45
Crawford cited UN Charter Article 2(1)46 to reinstate that ‘States are regarded in international law as “equal”’ and is a legal principle under international law too.47 He further discussed that this equality is formal and ‘not a moral or political principle’.48 For example, it does not give an equal vote to all states in an international organisation.49 While discussing the issues and challenges concerning formal equality, he also acknowledged that certain states were formally more equal because they had a veto in the UN Security Council.50 To acknowledge this he rationalised the concept of formal equality by questioning, ‘why the five states have a veto in the Security Council because it was withdrawn from the others’.51 Crawford believed that there was a gap between formal equality of states due to:
[T]heir substantive poverty and inequality; corresponding difficulties in coming to grips with the international environment, and in participating fully in the work of international organisations; potential security problems, especially when the islands are small and have a small population; and extensive maritime zones, often of disproportionate size to their land area, and often unaccompanied by a sufficient capacity to harvest or protect the resources of those zones.52
Crawford’s conceptualisation of sovereign equality also means that ‘states have exclusive competence in their internal affairs’,53 that ‘States are not subject to compulsory international processes, jurisdiction or settlement without their consent’,54 and that ‘derogations from these principles will not be presumed’.55 He, however, was not very successful in integrating the voices and requests by the third world or developing countries during the drafting of ARSIWA.56 For example, Draft Article 42(3) on reparations was removed on the second reading of the articles,57 due to apprehensions, majorly by global north nations, about the susceptibility of the provision to abuse.58 Additionally, Crawford quoted Ago,59 when developing countries demanded to include categories of ‘insurrectional movements’ for state responsibility on the basis of any international “legitimacy”,60 and criticised the Sixth Committee 1975 Report.61 Crawford seems to have supported Ago’s response to criticisms which included phrases like ‘not the Commission’s business’62 and were also supported by Crawford when working or commenting on ARSIWA.63 These decisions by Crawford to choose not to codify provisions that, according to the developing countries, could have been favourable to them, creates complexity to his larger legacy where he worked to ensure the implementation and practice of formal sovereign equality of states.
Within the ILC, Crawford propounded the principle of ‘sovereign equality of states’ as a ‘core’ legal principle of international law.64 Regardless, the principle is still not recognized as a jus cogens norm or peremptory norm of general international law by the ILC due to its ‘inconsistent position on the jus cogens nature of the sovereign equality of States’.65 In the 1960s, ILC members like Tunkin, Bartos and Special Rapporteur Waldock66 and in 2019, Special Rapporteur Tladi along with other ILC commissioners67 were in favour to include the principle within the list of the peremptory norms.68 In the end, however, the ILC decided to include only those norms in the list of peremptory norms that were without any doubt acknowledged as peremptory norms.69 Although, not a direct decision by Crawford, within the ILC, Crawford could not effectively argue for provisions and inclusions of principles in a way that could have likely put developing countries at a more advantageous position in international systems.
It is clear that Crawford’s initial exposure to international law caused him to study statehood and the emergence of new states, while analysing the sovereign equality of states, and has raised his concerns about the system of statehood and equality of states developed in the 19th century in international law.70 For example, he raised concerns about the sovereign equality of island states because he believed that ‘so far as island states are concerned, at the “smallest” end of the spectrum, there is doubt even about their capacity to maintain the minimum degree of independence and viability which one might think is necessary to be a state at all’.71 These may raise practical and theoretical questions regarding juridical equality of states that is part of sovereign equality and consequential imbalances in international relations.72 However, Crawford considered ‘strategic litigation’ by smaller states against powerful states as a powerful tool to remove imbalances in international relations73 and make use of the equality of states, formally guaranteed under international law.
Crawford supported ‘strategic litigation’ by weaker states,74 as a means to allow developing states to exercise sovereign equality of states by seeking reparation against the internationally wrongful acts of states and invoking state responsibility under ARSIWA.75 In relation to state responsibility under the international law, Crawford firmly believed that the rule governing state responsibility was strongly rooted in the equality of states and said, ‘by definition no state can be immune from the principle of international responsibility’.76 Crawford believed that rules concerning state responsibility governed all states equally and that any proposition to the contrary would be ‘a denial of international law and rejection of the principle of state equality’.77
Anghie, a leading scholar of the Third World Approaches in International Law (TWAIL), in his book78 writes about his initial exposure to international law in Nauru’s case.79 He says that the core issue of the case was about the possibility of the formerly dependent countries to bring a claim against colonial exploitation.80 He acknowledged the role of Crawford in helping Nauru build a strong case and strategic litigation which was then submitted to the International Court of Justice (‘ICJ’).81
Crawford considered such ‘strategic litigation’ to be at the core of the principle of sovereign equality of states.82 The right to approach an international court or forum, the right to bring claims, the right to be heard, etc. gave the states under international law ‘equal juridical standing’.83 Therefore, litigation under international law exemplifies and solidifies the concept of sovereign equality of states when even smaller less powerful states like Mauritius can initiate action against more powerful states like the United Kingdom.84 Or more recently, the decision of the small island states to approach International forums on questions concerning the legal responsibility of developed states for carbon emissions, marine pollution, and sea-level rise.85
Crawford believed the ICJ’s jurisdiction under Article 36 of the ICJ Statute was a corollary of the sovereign equality of states, in the absence of any contrary provision.86 The ICJ Statute represents the corollary of pacta sunt servanda which can be combined with the foundational principle of sovereign equality of states. Such agreements between states will not be repudiated by international law, except in ‘most extreme circumstances’,87 thereby also protecting the principle of sovereign equality of states.
Crawford’s work on colonisation, decolonised states, and the right to self-determination did not end during the 1960s or 70s while he was engaged in his PhD research work, but continued in the 21st century with his engagement in the Chagos Marine Protected Area Arbitration (Mauritius v United Kingdom) (‘Chagos Archipelagos Case’)88 and his work as the Judge of the ICJ.89 While representing Mauritius in the Chagos Archipelagos Case, he stated his position on the justification of colonialism as a legal argument and stated, ‘it is no more justified now than it was then’.90 His analysis of the principle of self-determination is broad and could be seen rooted in the principle of sovereign equality of states and support of the smaller, less powerful states like Mauritius.91
Prior to his representation of Mauritius, his work on the principle of self-determination was in support of equality of states regardless of their political, economic, or colonial power.92 He believed that despite democracy’s benefits, States’ sovereign equality extends to freely choosing their own form of government.93
He reinstated this during his speech in the Chagos Archipelagos Case, more so in an approach to benefit smaller post-colonial states against colonial powers. He took a position against the position of the United Kingdom that ‘reclassifie[d]’ colonial powers as ‘specially affected states’ and claimed that the right to self-determination was granted to by the United Kingdom to its colonies and that this principle applied ex post facto.94 Crawford also supported the right to the territorial integrity of colonial territories as a part of self-determination.95 He stated that ‘territorial integrity is a logical consequence of the right to self-determination—if the law were to authorise colonial powers to dispose of colonial territory in the lead-up to independence as they please, the right to self-determination would be frustrated or denied to that extent’.96 He also stated that ‘States are very different from each other in reality, and we all know that powerful States such as the UK are in a position to put great pressure on newly independent States, especially small ones such as Mauritius, and even on not so newly independent states’.97
Another additional aspect of the right of a state inherent to its sovereignty is ‘state immunity’,98 which protects a State and its property from the jurisdiction of other states, reflecting sovereign equality of states.99 State immunity is based on the principle of sovereign equality of states.100 It also means that ‘equals do not have jurisdiction over each other’.101 After the doctrine of sovereign equality was formally embedded, the class-based differentiation between heads of mission save as concerns precedence and etiquettes were removed from the system.102 Functional immunity is premised on the principle of sovereign equality and applies only to the official acts of a large range of state officials, even after they have left office.103 Whether functional immunity still applies in cases where state officials have been accused of violations of international criminal law is controversial. Conclusively, it can be stated that Crawford was a proponent of the sovereign equality of states and worked towards ensuring this standard by empowering weaker states against the colonial powerful states. In his words, ‘international law applies in principle to all States, and purports to do so on a basis of equality; in a number of respects a sophisticated notion of what it is to be equal under the law has been applied’.104
4 TWAIL on Sovereign Equality of States
TWAIL, or the Third World Approaches to International Law,105 emerged as a response to ‘decolonization and the end of direct European colonial rule over non-Europeans’.106 The TWAIL’s perspective on sovereign equality traces its origin from the geopolitical imbalance in the sphere of international law and is sensitive to the gaps between the developed and the developing world.107 TWAIL developed as an approach to ‘dismantle the prevailing norms that benefit the powerful few’.108 Chimni holds the view that TWAIL offers ‘a life of dignity for the poor, deprived, oppressed and subjugated in the Third World’.109 According to Mutua, TWAIL views international law as ‘illegitimate, predatory, and imperial’ that results in insubordination and de-legitimation of the Third World.110 He bases his views upon an idea that unites the TWAIL movement, i.e. European International Law, was developed to validate the subjugation of non-European people and their lands by portraying Europe as sovereign and non-European countries as non-sovereign.111 In this context, the TWAIL movement works towards the reconstruction of international law by developing an alternative legal framework that would form the basis of an equal and fair world.112 Chimni has been critical of TWAIL due to its lack of providing an alternative vision of international law.113 However, he also envisions globalisation of the sources of critical knowledge.114
It is discerned that there are two broad objectives of TWAIL scholarship. First, is the impact of colonialism and its contemporary forms that continue to facilitate an unjust global world and at the same time the need to undo the harm suffered by the Third World as a result of the imbalance in the international legal, political and economic order.115 To further understand TWAIL, it is important to refer to the work of Chimni and Anghie, who define TWAIL as a school of thought that in their views highlights the thought process of TWAIL scholars about the existing state of international law and what it should aim to achieve by putting forth the concerns of the Third World.116
Further, both Anghie and Chimni highlight the difference between scholarship within the TWAIL movement by categorising them into two categories: earlier colonial (also called TWAIL I) and late postcolonial-scholarship (also called TWAIL II).117 TWAIL I, ‘documents the contribution of the third world’ to international law, debunks the euro-centric narrative of international law, underscores the importance of the principle of sovereignty and non-intervention, while advocating for a change in the UN system.118 The TWAIL I scholars were based in ‘nationalist, modernist and anti-colonial’ sentiments, focusing on the discrimination and seclusion of the third world from the processes of the development of international law making.119
On the other hand, TWAIL II adds to a more in-depth understanding of imperialism by critically reflecting upon the state-centric and undemocratic character of international law, as well as on the search for state sovereignty under international law.120 TWAIL II scholars believe that the doctrines of universality, jus cogens and sovereignty were used as tools by Europeans to legitimise their thinking as the basis of an international legal order.121
The TWAIL scholars question the concept of juridical equality in international law, more fundamentally they question if the principles of sovereign equality of states contribute to establishing a just world under international law or as they call it ‘global law of welfare’.122 Kapur argued that ‘the narrative of sovereignty has been constructed against a denial of sovereignty to people who remained under colonial rule and, in turn, sustained and facilitated the continued economic and political power of the colonial rulers’.123 Many powerful Western states, with colonial tendencies have used force to expand their powers globally and have never been held responsible for violating principles concerning the territorial integrity of the sovereign states.124 What needs to be understood are the reasons behind the resistance as well as the revolutionary mindset of TWAIL scholars towards the concept of sovereign equality within the framework of international law.125
This can be ascertained from the validity of treaties under Article 52 of the Vienna Convention on the Law of Treaties which deals with the invalidity of a treaty that has been concluded by the threat or use of force.126 At the time of its drafting, the countries from the Global South that largely form part of the TWAIL movement had argued for the inclusion of ‘economic and political coercion as grounds of the invalidity of treaties’.127 The Global North believed that the inclusion of these additional grounds to invalidate treaties may be practiced with ambiguity and vagueness and therefore the grounds were not included in the final version of the treaty.128
This argument of ambiguous interpretation has been used by the Global North to exclude provisions that would have otherwise benefited the developing third world. The Global North nations believe that ambiguous interpretations may disturb the equilibrium of international law.129 Guilherme has argued that the exclusion of the demands and needs of the global south nations during the process of drafting Article 52 of the VCLT, undermines the concept of all nations which should be free and fair.130 Concerning Article 52 of the VCLT, it is stated that ‘the West won by pushing the Third World view into soft law’ and not into a binding international law within VCLT.131
The answer to this lies in the fact that TWAIL II, as described above, was not satisfied with acquiring sovereignty as there existed contemporary forms of colonial structures through informal mechanisms whose impact was not negated through the codification of certain norms like sovereign equality, as the economic and political sanctions continue to violate the rights inherent in sovereignty.132 The core of the issue that remains unanswered by restricting the meaning of coercion to threat or use of force under the VCLT are the prevalence of systematic inequalities and vitiated consent.133
Moreover, TWAIL scholarship points out the negative role of the doctrine of sovereign equality when it comes to the law of treaties.134 Both TWAIL I and TWAIL II differentiate the impact at the implementation level and the conclusion stage of the treaty. While deliberating upon the implementation of the treaty, the assumption is, that what states will agree to in their independent judgments will be adhered to, but while concluding the treaties, the hidden abusive pressures and unwanted concessions that Third World States have to make are not taken into consideration.135 This has been very discreetly explained by Martti Koskenniemi, who is of the view that ‘tacit or presumed consent is an international legal argument supposedly based on consent, but that supports non-consensual justice’.136 In a situation where consent is foundational to the criticism by TWAIL scholars, sovereign equality of states is seen in adverse light because the demands of the Global South are never met. Some of these demands are discussed in this paper and include but are not limited to the inclusion of political and economic coercion within provisions concerning reparations, inclusion of categories of insurgencies in ARSIWA and making the permanent membership of the UN Security Council more inclusive. These exclusions highlight that Third World states have less bargaining power and are left on dissimilar platforms as sovereigns without a capacity to effectively and equally contribute to international law making. The non-inclusion of specific demands by several nations from the Global South highlights the procedural gaps in international law making, that perhaps, is non-consensual.
Such a kind of non-consensual justice can be understood from the advisory opinion on the Legal Consequences of the Separation of Chagos Archipelago from Mauritius in 1965.137 It was under the 1814 Treaty of Paris, that the ‘island of Mauritius and the Dependencies of Mauritius’ that included the Chagos Archipelago, were administered without interruption by the United Kingdom.138 As a result, Mauritius, including its dependencies, became part of the list of non-self-governing territories under which the United Kingdom regularly provided the General Assembly with information relating to the existing conditions in that territory, under Article 73 of the Charter.139 However, the element of forced consent comes through the Lancaster House agreement of September 23rd 1965.140 The agreement was signed while Mauritius was still a colony of the UK. This means that the UK agreed to the detachment of the Chagos Archipelago from the territory of Mauritius, on behalf of Mauritius. The condition on which this agreement was concluded was that the archipelago could not be ceded to any third party and would be returned to Mauritius at a later date, a condition which was accepted by the United Kingdom.141 However, the ICJ in its advisory opinion held that Mauritius, which is a party to the Lancaster House agreement, was under the authority of the UK, and that there cannot be the existence of free and genuine will of the people in accepting to cede its territory to form a new colony.142
Recent work by Adom Getachew, recently approached the issue of sovereignty by ‘returning to the age of decolonization’ and asked re-oriented questions about sovereignty.143 In her view, ‘anti-colonial demand for popular sovereignty was explicitly directed by the paternalistic justifications an arbitrary power of imperial rule’.144 According to her, although anti-colonial sentiments promised self-determination and post-colonial sovereign, independent and free citizenship, the era of post-colonialism has not been free of challenges.145 She points to majoritarian regimes, that ‘eroded the promise of post-colonial citizenship’.146 Anti-colonial sentiments presented an alternative view to paternalistic colonialism and imperialism, however, not without challenges.147
5 Crawford and TWAIL on Sovereign Equality: Similarity and Differences
It is clear from the work and life of Crawford that he believed in the concept of ‘formal’ sovereign equality of states.148 This is a conceptual platform to allow weaker and smaller states to equalise themselves in the international law arena.149 There can be differences between functional, political, and economic equality of states, and therefore sovereign equality should not be confused with equality arising due to economic, political, military or territorial power.150 Crawford holds a similar position about equality and inequality between states, particularly between states which are unequal.151 He, however, highlights that equality arising due to economic, political, military, or territorial powers can have challenges to the sovereign equality of states under international law.152 The concept of the equal juridical personality of the state is therefore recognized by both TWAIL scholars, at least in principle, if not in practice.
For example, in his book, Anghie states that the system of international law and society allows actors to distinguish between various types of states, thereby excluding ‘non-European states from the family of nations and hence from the realm of sovereignty itself’.153 Both Crawford and Anghie differ on the practice of sovereign equality of states after a state became independent and was recognized by other states and international organisations like the UN. Crawford has noted that the system of the United Nations and membership of the UN Security Council amongst others has been possible because each state consented to the system.154 Anghie, however differs and cites Crawford’s summary of the situation in the 19th century, in which Crawford holds that recognition of the state itself solely created membership of states in the Society of Nations and bound them to obey international law.155 Anghie believed that post-colonial independent Third World states, were not given a free and fair choice to be a part of the UN system which is essentially an outcome of the colonial world.156 The fact that once an entity was recognised as a state became a member of the UN system by default, in practice, differs from the opinion of Crawford on ‘formal equality’.157 This analysis by Anghie highlights the difference in theory and practice of sovereign equality of states, wherein the practice of Third World Non-European states are put in an un-equal and excluded status, creating sovereign inequality of states. This exclusionary characteristic of international law is also recognized by Crawford in the ‘forward’ of the same book, where he states, ‘[i]t may be doubted whether’ ‘it is possible to create an international law that is not imperial’.158
Anghie’s analysis is a larger TWAIL debate about the system of consent under international law. Crawford’s argument of consent can be disrupted by his analysis of ‘recognition of states’ in international law.159 When Crawford stated that recognition of states implies their automatic membership in the international system and bounds the states by international law obligations, he is contradicting his argument of consent.160 Crawford may believe that all states have consented to systems like the current UN Security Council membership, but at the same time he also subliminally accepts that in most cases, the mere recognition of states bound the states with obligations under international law, without their consent. While recognition and induction of new states in the international system is a customary practice, it is not recognition alone that creates membership in international organisations and the international system, the state also has a choice to become a UN member by signing the UN Charter or to leave the UN Membership and exercise their power of consent.161
Overall, Crawford’s work in the Nauru Case and Chagos Archipelago Case against colonial exploitation aligns with the objective of TWAIL. Through his arguments in the Chagos Archipelagos Case, Crawford reinstated the TWAIL belief that ‘sovereignty doctrine, as applied to colonies, was not simply a European idea extended to peripheral areas’.162 Rather, as stated by Anghie, ‘it developed out of the colonial encounter, and adopted a form different from accepted notions of Western sovereignty’.163 Crawford and Anghie both support the argument that colonial powers should never have been allowed to use colonial supremacy as an argument to justify oppression and exploitation under their position of dominance.
Today the concept of sovereign equality of states is facing challenges from rising neo-colonial powers like China. Keun Gwan Lee criticised the concept of sovereign equality of states by discussing the positional superiority of China and the verticality of its relationship with other actors, in his essay honouring Crawford.164 Today, China has emerged as a neo-colonial power,165 which is using the customary practises of the colonial west to its aspirations, needs, and colonial expansion.166 Azeem highlights that China is exploiting other Third world economies to support its colonial ambitions and TWAIL scholars need to ‘articulate a coherent counter-hegemony’.167 The need is to collectively position against neo-colonial powers, to prevent potential exploitation of the world’s poorest and most unresourceful due to exercise of colonial powers.168
Getachow’s work on sovereign equality is not the only work to challenge the promise of a utopian post-colonial era. The criticism against oppression in post-colonial states can be found in the literature of Anghie & Chimni, and Shahabuddin, who have criticised post-colonial states for not becoming oppressive and neo-colonial.169 Due to the oppressive features of colonial states, Chimni,170 and Furedi both, criticise Western or Northern representation of the Third World.171 According to them the Northern actors seek ‘to occupy moral high ground through representing the third world peoples’.172 Due to this reason, Crawford’s legacy that revolves around working to empower the weaker states, becomes complex and can be criticised on allowing a representative from the Third World to represent their case before international forums. Through this allowance, the Third World nations are also likely to be empowered and are likely to attain bargaining power at international forums, which they have visibly lacked historically.173 As a general point, TWAIL scholars like Sornarajah, consider the area of international foreign investment law as ‘an area of tension’ between the developed and developing countries.174 Crawford has largely worked towards filling the gap in the economic inequalities between states, however, his work as an investment arbitrator can raise complex questions about his legacy and work on the sovereign equality of states.
The rules governing state responsibility are also important to understand viewpoints on the sovereign equality of states by both Crawford and TWAIL. Generally, TWAIL criticises imbalances in the enforcement of state responsibility against states who engage in historical continuities of unjust use of force and further legitimisation of the use of force under the oppressive international law against the Third World.175 The use of force is justified as being favourable to the interests and concerns of the states in the Global South. Such an argument is without any merit and ignores the fact that the doctrine of the ‘unwilling or unable’ which prohibits the use of force with exceptions came into existence and has on many occasions resulted in excessive use of force.176 This fact is manifested through the various instances of military force used against the Third World peoples that have now been redefined in the context of ‘war on terror’ and are subsumed under the concept of ‘responsibility to protect’.177 What this points to is TWAIL’s stand to broaden the definition of self-defence and to reject the centralisation of the use of force within the UN.178 This TWAIL perspective is based on the fundamental indeterminacy of the legal debate on the use of force and the dark sides of institutional multilateralism and the UN.
Although Crawford believes that all nations’ states are equal to enter into treaties and agreements and approach judicial forums claim under the rules of international law, like rules of state responsibility, such equality fades away in practice.179 For example, the legitimation of the use of force by some powerful states against weaker states by the United Nations signifies the practice of such inequalities.180 On the laws concerning state responsibility, Crawford viewed that ‘state’s inability, unwillingness or failure does not preclude states from responsibility under the international law’.181 In cases like Somalia and Kosovo, where institutions failed to take action on behalf of the states, the international community intervened.182 Additionally, Crawford failed to take actions to favour the Third World nations, during his work at the ILC, which included, choosing to include factors of coercion in the provisions concerning reparations in ARSIWA. Crawford was aware that these provisions were important for developing countries of the Global South, however, he still chose to align with the assertions of countries from the Global North.
Alternatively, the need is to justify the basis of state responsibility on the textual position of Article 51 of the UN Charter or invocation of chapter VII ‘Powers of the UN Security Council’ rather than relying on the conceptually flawed ‘unwilling or unable’ doctrine.183 To illustrate, the apprehensions of the Third World regarding the absence of any opposition under Guiding principles on State responsibility towards the Articles on the responsibility of states for internationally wrongful acts (ARSIWA) prejudices the interests of the weaker nations by violating the special and differential treatment (SDT) principle, failing to address the shared responsibility of state and non-state actors and affects the credibility of the erga omnes principle. Chimni brings these aspects to light by taking a position in contrast to Crawford who advocated for the ARSIWA at the ILC.184
He believes that the views of only some key figures of international law on the law of state responsibility from the 17th century to the present were considered and within that period the modern law of state responsibility emerged in the mid-19th century which is well known as an era of imperialism.185 Further Article 8 of ARSIWA, states ‘the conduct of a person or group of persons shall be considered an act of a State under international law if the person or group of persons is in fact acting on the instructions of, or under the direction or control of, that State in carrying out the conduct’.186 Chimni seeks to highlight the omission of responsibility of non-state actors like corporations, an aspect that defines the influence of the West in his views.187 In general, the TWAIL critique is not limited to the corporations, but seeks to emphasise the need for re-orientation of concepts, principles, rules, measures and remedies of rules of state responsibility to promote the value of justice by reflecting upon the treatment meted out to the weaker nations by the powerful nations and peoples especially in the name of pre-emptive self-defense under Article 51 of the UN Charter that points towards the inefficacy of the prohibition of the use of force.188
In this context, the influence exercised by the UN Security Council (‘UNSC’) on the functioning of the ICC from a TWAIL perspective has further strengthened their belief regarding the influence of political factors and foundational inequalities within the UN when it comes to referring or deferring the cases to the ICC by the UNSC. One such example is vetoing the reference of the violations in Syria to the ICC by China and Russia.189 What this shows is that there is a greater emphasis on state—interrelationship with each other and international institutions to maintain a particular legal order that affects the interests of the Third World.190 This balancing act between politics and legal order between the Security Council and the ICC forms the basis of the critique of the Third World where the ICC represents the legal order to achieve equality and on the other hand through the UNSC, certain concerns of the permanent members need to be balanced which was the reason that the developed states had emphasised the ICC acting on the approval of the UNSC.191
TWAIL scholars have re-asserted repeatedly that UNSC membership and decisions have caused widespread imbalances and inequalities in the legal order.192 Crawford, while agreeing to the imbalances caused, also underscored that nation states have consented to this system of international law and legal order, therefore intentionally or unintentionally agreeing to this existing system. This consented system, however, is a product of the existing political, economic, and historical differences between states and the way states were created, thereby depriving some states of the ability to engage in free informed consent.
Another difference between TWAIL scholarship and the scholarship of Crawford relates to the ability of sovereign states to approach international forums to resolve international disputes equally. Crawford is of the opinion that the principle of sovereign equality allows states, without any discrimination, to approach international courts and tribunals to claim against injuries and exploitation, especially one founded in colonisation. TWAIL scholarship does not agree with it, because they believe that certain ad-hoc tribunals that were created by the UNSC reflected the viewpoints of select powerful states and did not reflect the social, cultural and political context of the issues under consideration.193 These scholars have called for ways to understand the founding origins of violence that have been part of the colonial and imperial tenets of international law.194 In contrast, by having in place the veto powers in various international organs, such as the UNSC, a mechanism has been created that maintains a particular order in the name of peace and security which represents ongoing forms of social inequality that the law was assumed to abrogate.
When Crawford wrote the forward for Anghie’s work on imperialism, agreed with Anghie’s underlying foundation for the work, stating, ‘that we still live in a common era of continued empire’.195 Following this assertion, Crawford questioned if ‘it’s possible to create an international law that is not imperial’.196 In the 21st century, where we see a rise in both western and non-western neo-coloniser states and imperial states, this question becomes more pertinent and lies at the intersection of the work of both Crawford and the TWAIL scholars. The ongoing pandemic crisis faced by the global order brought together a wide range of scholars and international lawyers, including Chimni and Crawford, who stand in solidarity on the ongoing and potential crisis.197 These scholars believe that ‘international law agreement reflects on how to avoid known crises from repeating’ and allowing its development ‘through reacting to previous experiences of crisis’.198 Crawford, stated that ‘each of those crises is a crisis because of a conflict of power and a conflict of pretensions by leading states or the leaders of leading states’.199 Chimni, while agreeing with the role of power and systemic inequalities that cause crises, argues for a world with equal opportunities and agrees with Crawford that a crisis could lead to a ‘reversal of rules’.200
Crawford, through his work acknowledged and supported the criticism of TWAIL Scholars like Pahuja about the universalism of international law and the need to ‘decolonize’ it.201 Regardless of this acknowledgement his work was directed to support states that were earlier either dependent or colonised and has helped these states stand against the colonial oppression and imperial inequalities. His work before the international courts and other dispute settlement forums can be construed to have empowered many former colonies, formerly dependent and weak states (politically and economically). He has been an advocate for both formal and informal inequality of states in international law and an international lawyer who worked to see equal juridical personalities of all states in international law, like the TWAIL scholars.
Conclusively, both TWAIL scholars and Crawford have in principle and practice, supported ‘sovereign equality of states’. They have acknowledged that some states have the resources to dominate the international law system and there are states who do not have the means to claim their sovereign equal rights. Both also acknowledge the ‘extensive’ powers of the UNSC; however, both differ on the consequences of these extensive powers. According to TWAIL scholars, these extensive powers are imperial, exploitative, and not fairly consented by the third world countries or the newly independent countries post World War II.
Additional differences, both express and subliminal, between the approaches of Crawford and TWAIL are on the surface as well. Crawford has been very optimistic about the practical equality of states that allows ‘all states’ to approach an international forum for dispute settlement and stand against colonial exploitation. However, the various forms of exploitation continue and not all states are able or willing to approach international forums for redressal. Crawford’s views are distinctly different from Anghie’s imperialism and Chimni’s manifestation of imperial and colonial values. These TWAIL scholars demand equality on all levels, including in the membership of the United Nations Security Council, to which Crawford has held a different and unique view.
Conclusively, regardless of ideological differences, theoretical approaches, and practical consequences, both TWAIL scholars and Crawford expressed solidarity to move forward equally or within a system of equality of opportunities, specifically during a global crisis, like covid-19, climate change or world war.
No academic work, whatever its scope or worth, can be completed without the able guidance of mentors. We were fortunate enough to be benefited by the scholarly guidance of our esteemed editors, Professors Donald Rothwell, Australian National University and Douglas Guilfoyle, University of New South Wales, Australia. We wish to express our deepest and profound gratitude to them. We take this opportunity to thank Prof Romel Regalado Bagares, Philippine Society of International Law and Sahiba Maqbool, Lecturer, OP Jindal Global University India for their kind comments on an earlier draft of this paper. Finally, we wish to thank the staff at the Global Library, OP Jindal Global University who were very supportive throughout the process.
Interview with Judge James Crawford (Lesley Dingle and Daniel Bates, Eminent Scholars Archive, University of Cambridge, 3 May 2018) <https://www.squire.law.cam.ac.uk/eminent-scholars-archivejudge-james-crawford/conversations-judge-james-crawford>.
David Strang, ‘Global Patterns of Decolonization, 1500–1987’ (1991) 35(4) International Studies Quarterly 429.
Ronaldo Munck, ‘Dependency and Imperialism in the New Times: A Latin American Perspective’ (1999) 11(1) European Journal of Development Research 56.
Alain Pellet, ‘Adieu, James Crawford’ (2021) 20(3) Law and Practice of International Courts and Tribunals 465.
Lesley Dingle, ‘Perspectives of International Law: Some Examples from Conversations with Judge James Richard Crawford’ (2019) 19(1) Legal Information Management 14.
Interview with Judge James Crawford (n 1).
James R Crawford, The Creation of States in International Law (Oxford University Press, 2nd ed, 2006).
Charter of the United Nations art 2(1) (‘UN Chater’); Alex Ansong, ‘The Concept of Sovereign Equality in International Law’ (2016) 2(1) GIMPA Law Review 14.
Christine J Vachon, ‘Sovereignty Versus Globalization: The International Court of Justice’s Advisory Opinion on the Threat or Use of Nuclear Weapons’ (1998) 26(4) Denver Journal of International Law and Policy 691.
Hans Kelsen, ‘The Principle of Sovereign Equality of States as a Basis for International Organization’ (1994) 53(2) Yale Law Journal 207.
Gerry Simpson, ‘The Great Powers, Sovereign Equality and the Making of the United States Nations Charter’ (2000) 21 Australian Year Book of International Law 133.
Declaration on the Granting of Independence to Colonial Countries and Peoples, GA Res 1514(XV), UN GAOR, 15th sess, 947th plen mtg, Agenda Item 11, UN Doc A/RES/1514(XV) (14 December 1960); Ved P Nanda, ‘Self-Determination under International Law: Validity of Claims to Secede’ (1981) 13(2) Case Western Reserve Journal of International Law 257.
Declaration on Principles of International Law Concerning Friendly Relations and Cooperation Among States in Accordance with the Charter of the United Nations, GA Res 2625 (XXV), 25th sess, 1883rd plen mtg, Agenda Item 85, UN Doc A/RES/2625(XXV) (24 October 1970) annex.
Robert Rosenstok, ‘The Declaration of Principles of International Law Concerning Friendly Relations: A Survey’ (1971) 65(5) American Journal of International Law 713.
Dire Tladi, ‘Disquisitions and Disputations’ in Dire Tladi (ed), Peremptory Norms of General International Law (Jus Cogens) (Brill Nijhoff, 2021) 1.
Dire Tladi, ‘Codification, Progressive Development, New Law, Doctrine, and the Work of the International Law Commission on Peremptory Norms of General International Law (Jus Cogens): Personal Reflections of the Special Rapporteur’ (2019) 13(6) FIU Law Review 1137.
Tanja E Aalberts, ‘Rethinking the Principle of (Sovereign) Equality as a Standard of Civilisation’ (2014) 42(3) Millennium: Journal of International Studies 767, 784 , quoting ‘Report of the Commission to the General Assembly’  II Yearbook of the International Law Commission 161, 177 .
TE Aalberts and WG Werner, ‘Mobilising Uncertainty and the Making of Responsible Sovereigns’ (2011) 37(5) Review of International Studies 2183.
Underhill v Hernandez, 168 US 252 (1897).
James Crawford, Chance, Order, Change: The Course of International Law, General Course on Public International Law (2014)  (‘Chance, Order, Change’).
Hannah Woolaver, ‘Sovereign Equality as a Peremptory Norm of General International Law’ in Dire Tladi (ed), Peremptory Norms of General International Law (Jus Cogens) (Brill Nijhoff, 2021) 713, 720.
Crawford, Chance, Order, Change (n 27) .
James Crawford, Brownlie’s Principles of Public International Law (Oxford, 8th ed, 2012) 12  (‘Brownie’s Principles of Public International Law’)
Crawford, The Creation of States in International Law (n 11) 51.
James Crawford, ‘Foreword’ in Antony Anghie, Imperialism, Sovereignty and the Making of International Law (Cambridge University Press, 2007) xi, xi–xii.
Ibid xii (emphasis in original).
Robert H Jackson, Quasi-States: Sovereignty, International Relations and the Third World (Cambridge University Press, 1993) vol 12; Crawford, The Creation of States in International Law (n 11) 719.
Crawford, ibid; Chiara Giorgetti, ‘Why Should International Law Be Concerned About State Failure?’ (2010) 16(2) ILSA Journal of International and Comparative Law 469.
Jackson (n 37).
James Crawford, The Creation of States in International Law (n 11) 720–22.
Charter of the United Nations art 2(1).
James Crawford, ‘The Criteria for Statehood in International Law’ (1976) 48(1) British Yearbook of International Law 93, 108 .
Interview with Judge James Crawford (n 1).
James Crawford, ‘Islands as Sovereign Nations’ (1989) 38 International and Comparative Law Quarterly 277, 277 .
Crawford, Chance, Order, Change (n 27) .
James Crawford, State Responsibility: The General Part (Cambridge University Press, 2013) 482–483.
International Law Commission, Report of the International Law Commission on the Work of its Fifty-Second Session, UN GAOR 55th sess, Supp No 10, UN Doc A/55/10 (2000).
Crawford, State Responsibility: The General Part (n 56) 173.
Tladi (n 19) 721–724.
UN General Assembly, United Nations Conference on the Law of Treaties, 1st sess, UN Doc A/CONF.39/11 (26 March 1968–24 May 1968), 328; ‘Second Report on the Law of Treaties, by Sir Humphrey Waldock, Special Rapporteur’  II Yearbook of the International Law Commission 1, 53.
International Law Commission, Provisional Summary Record of the 3465th Meeting, 71st sess, 1st pt, UN Doc A/CN.4/SR.3465 (16 May 2019), 4.
International Law Commission, Provisional Summary Record of the 3472nd Meeting, 71st sess, 1st pt, UN Doc A/CN.4/SR.3472 (31 May 2019), 13.
Douglas Guilfoyle, ‘The Chagos Archipelago Before International Tribunals: Strategic Litigation and the Production of Historical Knowledge’ (2021) 21(3) Melbourne Journal of International Law 749.
Guilfoyle (n 72).
Crawford (n 56) 62.
Anghie (n 35) 2.
See, eg, Certain Phosphate Lands in Nauru (Nauru v Australia) (Preliminary Objections)  ICJ Rep 240.
Anghie (n 35) 2.
Crawford, Chance, Order, Change (n 27) 359–60 .
Chagos Marine Protected Area Arbitration (Mauritius v United Kingdom) (Notice of Arbitration) (Permanent Court of Arbitration, Case No 2011-03, 20 December 2010) (‘Chagos Archipelagos Case’).
See, eg, United Nations General Assembly, ‘Ahead of Climate Conference, Small Island Developing States Call Out Rich Countries in General Assembly for Lacking Political Will to Stop Global Warming’ (Meetings Coverage and Press Release, 76th sess, GA/12369, 25 September 2021) <https://www.un.org/press/en/2021/ga12369.doc.htm>.
Chagos Archipalegos Case (n 84) .
James Crawford, ‘The Current Political Discourse Concerning International Law’ (2018) 81(1) The Modern Law Review 1.
See, eg, Chagos Marine Protected Area Arbitration (Mauritius v United Kingdom) (Jurisdiction and Merits) (Permanent Court of Arbitration, Case No 2011-03, 5 May 2014) 954 (‘Chagos (Jurisdiction and Merits)’).
Guilfoyle (n 72).
Crawford, The Creation of States in International Law (n 11).
James Crawford, Democracy in International Law: Inaugural Lecture (Cambridge University Press, 1994).
Chagos (Jurisdiction and Merits) (n 90) 954 (James Crawford).
See, eg, Immunities and Criminal Proceedings (Equatorial Guinea v France) (Preliminary Objections)  ICJ Rep 292.
See, eg, Oxford University Press, Max Planck Encyclopaedias of International Law (online at 2 June 2022) State Immunity <https://opil.ouplaw.com/view/10.1093/law:epil/9780199231690/law>.
See, eg, Jurisdictional Immunities of the State (Germany v Italy; Greece intervening) (Judgment)  ICJ Rep 99, 123–4 .
Woolaver (n 28) 724 states the maxim par in parem non habet imperium makes clear the link between formal State equality and immunity.
Crawford, Brownlie’s Principles of International Law (n 30).
Dapo Akande, ‘International law immunities and the International Criminal Court’ (2004) 98(3) The American Journal of International Law 407.
James Crawford, ‘International Law and the Rule of Law’ (2003) 24(1) Adelaide Law Review 3.
Obiora Chinedu Okafor, ‘Critical Third World Approaches to International Law (TWAIL): Theory, Methodology, or Both?’ (2008) 10(4) International Community Law Review 371.
Makau Mutua, ‘What is TWAIL?’ (2000) 94(1) Proceedings of the Annual Meeting (American Society of International Law) 31, 31–8.
James Thuo Gathii, ‘TWAIL: A Brief History of Its Origins, Its Decentralized Network, and a Tentative Bibliography’ (2011) 3(1) 3 Trade Law and Development 26.
Thamil Venthan Ananthavinayagan, ‘Breaking Bad Customs: Involving the Idea of Opinio Juris Communis in Asian State Practice’ (2018) 24(1) Asian Yearbook of International Law 24.
BS Chimni, ‘The Past, Present and Future of International Law: A Critical Third World Approach’ (2007) 8(2) Melbourne Journal of International Law 499, 499–500.
Mutua (n 106).
Ibiora Chinedu Okafor, ‘Newness, Imperialism, and International Legal Reform in Our Time: A Twail Perspective’ (2005) 43(1) Osgoode Hall Law Journal 171; Antony Anghie and BS Chimni, ‘Third World Approaches to International Law and Individual Responsibility in Internal Conflicts’ (2003) 2(1) Chinese Journal of International Law 77; Luis Eslava and Sundhya Pahuja, ‘Beyond the (Post)Colonial: TWAIL and the Everyday Life of International Law’ (2012) 45(2) Verfassung und Recht in Übersee/Law and Politics in Africa, Asia and Latin America 195; Andrew Sunter, ‘Twail As Naturalized Epistemological Inquiry’ (2007) 20(2) Canadian Journal of Law and Jurisprudence 475.
Antony Anghie et al, The Third World, and International Order: Law, Politics, and Globalization (Martinus Nijhoff, 2003).
Karin Mickelson, ‘Taking Stock of TWAIL Histories’ (2008) 10(4) International Community Law Review 355.
Atony Anghie, ‘TWAIL: Past and Future’ (2008) 10(4) International Community Law Review (2008) 479.
George Galindo, ‘Splitting TWAIL’ (2016) 33(3) Windsor Yearbook of Access to Justice 37.
BS Chimni, ‘The World of TWAIL: Introduction to the Special Issue’ (2011) 3(1) Trade, Law and Development 14.
Sandhya Pahuja, Decolonising international Law: development, economic growth and the politics of universality (Cambridge University Press, 2011) 113.
Galindo (n 117).
Hélène Ruiz Fabri and Edoardo Stoppioni, ‘Jus Cogens Before International Courts: The Mega-Political Side of the Story’ (2022) 84(1) Law and Contemporary Problems 153; Antonio Cassese (ed), Realizing Utopia: The Future of International Law (Oxford University Press, 2012).
Galindo (n 117).
Ratna Kapur, ‘Gender, Sovereignty and the Rise of Sexual Security Regime in International Law and Postcolonial India’ (2013) 14(2) Melbourne Journal of International Law 317.
BS Chimni, ‘Third World Approaches to International Law: A Manifesto’ in BS Chimni (ed), The Third World and International Order: Law, Politics and Globalization (BRILL, 2003) 47.
Larissa Ramina, ‘Framing the Concept of TWAIL: Third World Approaches to International Law’ (2018) 32(1) Justiça do Diereito 5.
Guilherme Del Negro, ‘The Validity of Treaties Concluded under Coercion of the State: Sketching a TWAIL Critique’ (2017) 10(1) European Journal of Legal Studies 39, 39.
United Nations, Yearbook of the International Law Commission 1963, Vol I, 705th mtg, UN Doc A/CN.4/SER.A (21 June 1963) 209–212 –; Del Negro (n 126) 39.
Del Negro (n 126).
Anna Krueger, ‘Conference Report: The Battle for International Law in the Decolonization Era’ (2016) 49(1) Verfassung und Recht in Übersee/Law and Politics in Africa, Asia and Latin America 80.
Madhav Khosla, ‘The TWAIL Discourse: The Emergence of a New Phase’ (2007) 9(3) International Community Law Review 291.
David P. Fidler, ‘Revolt against or from within the West—TWAIL, the Developing World, and the Future Direction of International Law’ (2003) 2(1) Chinese Journal of International Law 29.
Matthew Craven, ‘What Happened to Unequal Treaties? The Continuities of Informal Empire’ (2005) 74(3) Nordic Journal of International Law 335, 342.
Martti Koskenniemi, ‘The Politics of International Law’  (1) European Journal of International Law 4.
See Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965 (Order on 14 July 2017)  ICJ Rep 282 (‘Chagos Archipelago Case’).
Stephen Allen, ‘Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965’ (ICJ) (2019) 58(3) International Legal Materials 445.
Géraldine Giraudeau, ‘A Slight Revenge and a Growing Hope for Mauritius and the Chagossians: The UNCLOS Arbitral Tribunal’s Award of 18 March 2015 on Chagos Marine Protected Area (Mauritius v. United Kingdom)’ (2015) 12(2) Revista de Direito Internacional 1, 705.
Chagos Archipelago Case (n 137).
Adom Getachew, ‘The Limits of Sovereignty as Responsibility’ (2018) 26(2) Constel- lations 233.
Crawford, Brownlie’s Principles of Public International Law (n 30).
Lora Anne Viola, Duncan Snidal, and Michael Zürn, ‘Sovereign (In)Equality in the Evolution of the International System’ in Stephen Leibfried, Evelyne Huber, Matthew Lange, Jonah D Levy, Frank Nullmeier and John D Stephens (eds), The Oxford Handbook of Transformations of the (Oxford University Press, 2015) 237.
Antony Anghie, ‘Legal aspects of the New International Economic Order’ (2015) 6(1) Humanity: An International Journal of Human Rights, Humanitarianism, and Develop- ment 145.
Crawford, ‘Islands as Sovereign Nations’ (n 52) 277 .
Ibid 277 .
Anghie (n 35) 99.
Anghie and Chimni (n 112) 77.
See, eg, Crawford, ‘Islands as Sovereign Nations’ (n 52) 277–298.
Anghie (n 35) xiii.
Crawford, The Creation of States in International Law (n 11).
See generally LC Green, ‘The Dissolution of States and Membership of the United Nations’  (32) Saskatchewan Law Review 93.
Antony Anghie, ‘The Heart of My Home: Colonialism, Environmental Damage, and the Nauru Case’ (1993) 34(2) Harvard International Law Journal 445, 448.
Keun Gwan Lee, ‘The Palimpsestic Nature of Territorial Sovereignty’ in Christine Chinkin and Freya Baetens (eds), Sovereignty, Statehood and State Responsibility: Essays in Honour of James Crawford (Cambridge University Press, 2015) 126, 135; Antony Anghie, Bhupinder Chimni, Karin Mickelson and Obiora C Okafor, The Third World and International Order: Law, Politics and Globalization (BRILL, 2021).
Mary Madeleine Edel Wan Yan Chan, ‘China in Africa: A Form of Neo-Colonialism?’ Yerepouni News (online, 7 December 2018) <https://www.yerepouni-news.com/china-in-africa-a-form-of-neo-colonialism/>.
Mark J Valencia, ‘US “Picking and Choosing” From the Law of the Sea’, East Asia Forum (online, 17 August 2018) <https://www.eastasiaforum.org/2018/08/17/us-picking-and-choosing-from-the-law-of-the-sea>.
Muhammad Azeem, ‘Theoretical Challenges to TWAIL with the Rise of China: Labor Conditions Under Chinese Investment in Pakistan’ (2019) 20(2) Oregon Review of International Law 395.
Sheikh Mehedi Hasan, ‘Poetics of Resistance and Revolution: Reading Nazrul in the Era of Neo-colonialism’ (2020) 1 (January) Nazrul Journal 287.
Anghie and Chimni (n 112) 77; Chimni (n 118); Mohammad Shahabuddin, ‘Strand one: human rights as an emancipatory move’ in Ali Riaz and Mohammad Sajjadur Rahman (eds), Routledge Handbook of Contemporary Bangladesh (Routledge Handbooks Online, 2016).
Anghie and Chimni (n 112) 61.
Frank Furedi, ‘The Moral Condemnation of the South’ in C Thomas and P Wilkins (eds), Globalization and the South: International Political Economy Series (Palgrave Macmillan, 1997) 76, 79.
Anghie, Chimni, Mickelson and Okafor (n 164).
See, eg, Guilfoyle (n 72).
Anghie, Chimni, Mickelson and Okafor (n 164).
Anne-Charlotte Martineau, ‘Concerning Violence: A Post-Colonial Reading of the Debate on the Use of Force’ (2016) 29(1) Leiden Journal of International Law 95.
Waseem Ahmad Qureshi, ‘Examining the Legitimacy and Reasonableness of the Use of Force: From Just War Doctrine to the Unwilling-or-Unable Test’ (2017) 42(3) Oklahoma City University Law Review 221.
Gunjan Chawla, ‘Exploring International Legal Norms in Global and Domestic Counterinsurgency Operations: A Twail Critique of Combatant’s Privilege’ (2018) 18 ISIL Year Book of International Human and Refugee Law 22, 22.
Dawood I Ahmed, ‘Defending Weak States against the “Unwilling or Unable” Doctrine of Self-Defense’ (2013) 9 (March) Journal of International Law and International Relations 1.
Crawford, ‘The Current Political Discourse Concerning International Law’ (n 89) 20.
Antonio Cassese, ‘Ex Iniuria Ius Oritur: Are We Moving Towards International Legitimation of Forcible Humanitarian Countermeasures in the World Community?’ (1999) 10(1) European Journal of International Law 23.
James, Crawford and Simon Olleson, ‘The Exception of Non-Performance: Links between the Law of Treaties and the Law of State Responsibility’ (2000) 21 Australian Year Book of International Law 55.
James Crawford, The International Law Commission’s Articles on State Responsibility: Introduction, Text and Commentaries (Cambridge University Press, 2002) 77.
BS Chimni, ‘A Just World Under Law: A View from the South’ (2007) 22(2) American University International Law Review 199.
BS Chimni, ‘The Articles on State Responsibility and the Guiding Principles of Shared Responsibility: A TWAIL Perspective’ (2020) 31(4) European Journal of International Law 1211.
International Law Commission, Draft Articles on Responsibility of States for Internationally Wrongful Acts, 53rd sess, Supp No 10, ILC Doc A/56/10 (November 2001).
Chimni, The Articles on State Responsibility (n 184) 1211.
Srinivas Burra, ‘Use of Force as Self Defence against Non-State Actors and TWAIL Considerations: A Critical Analysis of India’s State Practice’ (2018) 24 (November) Asian Yearbook on International Law 106.
Yasmine, Nahlawi, ‘Overcoming Russian and Chinese Vetoes on Syria through Uniting for Peace’ (2019) 24(1) Journal of Conflict and Security Law, 111, 111.
Kamari Maxine Clarke, ‘The Legal Politics of the Article 16 Decision: The International Criminal Court, the UN Security Council and Ontologies of a Contemporary Compro- mise’  (September) African Journal of Legal Studies 297.
Makau W Mutua, ‘The International Criminal Court in Africa: Challenges and Opportunities’ (Noref Working Paper, Norwegian Peacebuilding Centre, September 2010).
Chidi Anselm Odinkalu, ‘Re-examining Third World Approaches to Decolonizing International Law (TWAIL)’ (2022) 46 The Fletcher Forum Of World Affairs 157; Shayama Bashawieh, ‘Military Intervention from a Global South Perspective: A Twail Analysis’ (2014) 1 Revue Your Review (York Online Undergraduate Research) 100; Kamari Maxine Clarke, ‘The Legal Politics of the Article 16 Decision: The International Criminal Court, the UN Security Council and Ontologies of a Contemporary Compromise’  (September) African Journal of Legal Studies 297.
Asad Kiyani, ‘Group-Based Differentiation and Local Repression: The Custom and Curse of Selectivity’ (2016) 14(5) Journal of International Criminal Justice 939.
Okafor (n 112).
Anghie (n 35) xiii.
BS Chimni, ‘Chapter 4 Crisis and International Law’ in Makane Moïse Mbengue and Jean d’Aspremont (eds), Crisis Narratives in International Law (Brill, 2021) 40; James Crawford, ‘Reflections on Crises and International Law’ in George Ulrich and Ineta Ziemele (eds), How International Law Works in Times of Crisis (Oxford University Press, 2019) 10, 17.
Crawford, ‘Reflections on Crises’ (n 197) 17.
Chimni, (n 197).
Crawford, Chance, Order, Change (n 27) 324.