QUESTION 1

1
TWAIL is a response to decolonization and the end of direct European colonial rule
over non-Europeans. It basically describes a response to a condition, and is both
reactive and proactive. It is reactive in the sense that it responds to international law
as an imperial project. But it is proactive because it seeks the internal transformation
of conditions in the Third World.

TWAIL is driven by three basic, interrelated and purposeful objectives. The first is to
understand, deconstruct, and unpack the uses of international law as a medium for
the creation and perpetuation of a racialized hierarchy of international norms and
institutions that sub ordinate non-Europeans to Europeans. Second, it seeks to
construct and present an alternative normative legal edifice for international
governance. uct and present an alternative normative legal edifice for international
governance. Finally, TWAIL seeks through scholar ship, policy, and politics to
eradicate the conditions of underdevelopment in the Third World

The Third World has also been littered with collaborationist intellectuals and political
leaders. The Third World consists of the victims and the powerless in the
international [Link] we constitute a majority of the world's population,
and possess the largest part of certain important raw materials, but we have no
control and hardly any influence over the manner in which the nations of the world
arrange their economic affairs. In international rule-making, we are recipients not
participants.

third World does not suggest a premodern-modern, child-adult, barbarian-civilized

and inferior-superior civilizational ladder, a linear, unidirectional progression of
history led by the West.

TWAIL is both a political and an intellectual movement. It does not, however, have a
specific creed or dogma. To be sure, TWAIL scholarship and political practices are
replete with internal contradictions, incoherencies and disagreements of content,
strategy, and tactics.

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Makau W. Mutua p 31-38
TWAIL Is Antihierarchical: Much, if not all, of international law has been driven by
complexes of superiority. Classical international law was based on the supremacy of
white European peoples over non-Europeans, and the "duty" of the former to civilize
2
and control the latter. the Bible-carrying missionary come to save the heathens, the
commercial profiteer, the exporter of political democracy, and now the human rights
crusader. 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
believes that international law is necessary and important. But 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. TWAIL believes that
such discourses will fail because they denigrate? Not affirm? The full richness of a
diverse world.

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. he 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. Here, TWAIL opposes the complicity of Third World states in the international
legal and economic order with a view to silencing the voices of the powerless.
TWAIL calls for the full democratization of the structures of both national and
international governance so that all voices can be heard. TWAIL embraces the
project of subalternity, in which those who do not fit the frames of Eurocentrism and
modernity can be heard and become full participants in their governance.40 In this
regard, TWAIL has a basic interest in the internal reconstruction and genuine
democratization of Third World states.

2
Makau W. Mutua p 31-38
3
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 Right. TWAIL does not believe that free-market,
private property, or trade values are superior to, or automatically trump, other human
value a distillation of universal values may be possible in certain cases, but how that
process is conducted makes all the difference. Otherwise, powerful economic and
military interests are able to force their views on the rest of the world and freeze
them as eternal, inflexible truths, much in the same way Christianity was forced on
non-European peoples.

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. TWAIL seeks deliberate complicity and alliances with a
number of scholarly communities, particularly those advocating critical race theory
and new approaches to international law. Its understanding of the use of law and the
exercise of power as tools of domination and exclusion mirrors. Critical race theory
is driven by two basic interests: The first is to understand how a regime of white
supremacy and its subordination of people of colour have been created and
maintained in America, and, in particular, to examine the relationship between that
social structure and the professed ideals such as the rule of law and equal
protection. The second is a desire to not merely understand the vexed bond between
law and racial power but to change it.

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

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Makau W. Mutua p 31-38
fundamentally a reconstructive movement that seeks a new compact of international
law. In this pursuit, TWAIL refuses to treat as sacred any norm, process, or
institution of either domestic or international law. All factors that create, foster,
legitimize, and maintain harmful hierarchies and oppressions must be revisited and
changed. That is the commitment of TWAIL4.

Question 2

it is commonly acknowledged that foreign crimes, regardless of whether they are

punished by domestic or international tribunals, are not covered by functional
immunity. Acts that are "condemned as criminal by international law" are not covered
by this immunity. Any accused person's official position whether as the Head of State
or Government or as a responsible government official neither absolves them of
criminal liability nor lessens their sentence. In a similar vein, several national courts
have ruled that functional immunity does not apply to the prosecution of foreign
offenses.

The most famous decision is the Pinochet case 5where, albeit for different reasons,
the UK House of Lords found that General Pinochet could not rely on functional
immunity in order to avoid being extradited to Spain to face allegations of torture.
The court found that a serving head of state was entitled to absolute immunity, but
that a former head of state was entitled to immunity only for acts performed in the
"exercise of his functions as head of state"

In the Gaddafi case, it was claimed that the Libyan government was involved in the
bombing of a aircraft which caused the death of the passengers and crew members.
A complaint was filed against Gaddaffi, the Libyan leader. The court however,
accepted the plea of immunity and declined jurisdiction.

The demand that heads of state answer for their deeds is gaining traction
internationally. Private law that safeguards creditors and other individuals continues
to apply to heads of state. Regarding the theft of resources from his own state, a
head of state is thus not immune.

4
Makau W. Mutua p 31-38
5
R v Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet Ugarte (No 3) 119 ILR 136 (1999)
Personal Immunity and international crimes the relevance of personal immunity in
the prosecution of international crimes is more complex. There is a gap between
proceedings before international tribunals and those before domestic courts. In
international courts, the generally accepted view is that such immunities do not apply
before international tribunals, although the question is somewhat complicated in the
case of the International Criminal Court.

Minister for Foreign Affairs of the Democratic Republic of Congo enjoyed under
international law when it issued an arrest warrant for him for crimes against humanity
and war crimes.

South Africa has the Foreign States Immunities Act6 , which defines a foreign state
to include a foreign Head Of State, and head of government. Section 2 of the
Foreign immunities act provides that a foreign state shall be immune from the
jurisdiction of the courts of the Republic. Under the Act, a number of exceptions to
immunity exist, and these relate to civil claims, amongst others, and also provide for
the waiver of immunity by the state concerned. Section 6(a) provides for immunity of
the foreign head of state from the jurisdiction of South African courts, except in the
case of a death or injury of any person. Immunity ratione materiae does not apply to
international crimes, whether prosecuted by international or domestic courts.
Although the Arrest Warrant case seems to suggest that at the domestic level, a
domestic court would still be bound by the foreign head of state immunity, regardless
of the crime committed, the situation in South Africa differs from that notion.

Question 3

A state has a right to protect its nationals abroad who have been injured by the
actions of the foreign state. The right of diplomatic protection vests in the state. The
state is not under any duty to exercise its right. While the domestic laws of a state
may impose such obligation, international law does not. 7The state that is entitled to
exercise diplomatic protection is the state of nationality;8a state may not pursue an
international claim on behalf of a national before that person has exhausted all local
remedies. The interesting question is whether South African law imposes such an

6
Strydom 254
7
Article 3(1) of Draft Articles on Diplomatic Protection
8
Article 14(1) of Draft Articles on Diplomatic Protection
obligation on the South African government the state may take up the case of its
subject by resorting to diplomatic action, or international judicial proceedings. The
cornerstone of this right is that an injury to a national is considered to be an injury to
the state. International law says that the right of diplomatic protection vests in the
state. The state is not under any duty to exercise its right. While the domestic laws of
a state may impose such obligation, international law does not.

In Kaunda9 a number of South Africans had been arrested in Zimbabwe and

Equatorial Guinea in connection with charges relating to mercenary activities and
plotting a coup against the President of the Equatorial Guinea. Those arrested in
Zimbabwe feared that they would be extradited to Equatorial Guinea. All the
Applicants claimed that they would not receive a fair trial in Equatorial Guinea.
Furthermore, they contended that, if they were convicted in Equatorial Guinea, they
would be sentenced to death. They claimed, therefore, that the South African
government was under an obligation to offer them diplomatic protection.

The court dismissed the application. The majority decision, written by Chaskalson
CJ recognised that international law did not oblige a state to provide diplomatic
protection, but in terms of the South African Constitution, there was at least some
obligation on the part of the government to provide protection to its nationals abroad.
The court began by asserting that a request to the South African government for
diplomatic protection was unlikely to be refused if there had been a gross violation of
international human rights norms, and the evidence to that effect was clear. Should a
request for diplomatic protection ever be refused the decision would be justiciable,
and a court could order the government to take appropriate action.

The court also noted that the assertion of diplomatic protection was essentially a
function of the executive with which the courts are ill equipped to deal. However, if
the executive were to refuse to consider a legitimate request, or if it were to deal with
it in bad faith or irrationally, the court could intervene. In other words, while the
executive has a broad discretion when conducting foreign affairs, the courts can
review such decisions on the grounds of, for example, irrationality and bad faith.

9
Kaunda v President of the Republic of South Africa 2005 (4) SA (CC).
In a concurring opinion, Ngcobo J, examined, inter alia, section 3 (the right to a
common South African citizenship) and section 7 which provides that The Bill of
Rights is a cornerstone of democracy in South Africa, It enshrines the rights of all
people in our country and affirms the democratic values of human dignity, equality
and freedom. The state must respect, protect, promote and fulfill the rights in the Bill
of Rights. Ngcobo J concluded that diplomatic protection is a benefit within the
section 3(2)(a). sections 3(2)(a) and 7(2) must be read as imposing a constitutional
duty on the Government to ensure that all South African nationals abroad enjoy the
benefits of public protection. The proposition that the Government has no
constitutional duty in this regard must be rejected. Such a proposition is inconsistent
with the Government own declared policy and acknowledged constitutional duty.

The dissenting opinion of O‟Regan J acknowledged that the conduct of foreign

affairs is typically an executive power under the Constitution and submitted that, in
the conduct of foreign relations, the executive must be afforded considerable
latitude. She suggested that the court should declare that the executive was under a
constitutional obligation to take appropriate steps to provide diplomatic protection,
but that the executive itself was best placed to determine what steps it should take.

In Van Zyl10 the applicants requested the South African government to extend
diplomatic protection to them in their dispute with the government of the Kingdom of
Lesotho. The dispute related to expropriation of the applicants‟ mining leases,
mining rights and attributing agreements without compensation being paid to them.
The contracts referred to were not internationalised. The expropriation had taken
place in execution of the Lesotho Highlands Water Project. The latter was provided
for in a treaty between the SA government and that of Lesotho. It was claimed that
the applicants were entitled to diplomatic protection, because the government of
Lesotho had committed an international delict. The SA government had refused the
application on the grounds that no right to diplomatic protection accruing to an
individual existed in international law since, in deciding to exercise diplomatic
protection, the SA state would have been inserting its own right. The applicants also
contended that inaction by the SA government would lead to a violation of a number
of provisions of the SA Constitution. Ultimately, the application was dismissed.

10
Van Zyl v Government of the RSA 2008 (3) SA 294 (SCA)
Amongst others, the applicants could not prove that Lesotho had committed an
international delict, nor did they satisfy the two prerequisites for the admissibility of a
claim for purposes of diplomatic protection (nationality and exhaustion of local
remedies.) The court pointed out that neither international law, nor the Constitution
recognised the right to diplomatic protection. The court distinguished the case from
Kaunda in that the latter concerned gross human right violations, while in the Van Zyl
case the applicants had been expropriated and international law did not recognise
the protection of property as an international human right.

In Von Abo11 the applicant was a South African farmer in Zimbabwe. Zimbabwe had
violated his rights by destroying his property interests in many Zimbabwean farms as
part of a governmental scheme of expropriation. Von Abo was not compensated and
he had exhausted all local remedies. Von Abo requested the South African
government to afford him diplomatic protection. The applicant claimed that he had a
right to such protection in terms of the South African Constitution. Based on the
judgment in Kaunda, the court in Von Abo found that the need not be an actual
refusal on the part of government to grant diplomatic protection before a court would
intervene. The court stated that, in an appropriate case, a court could also come to
the assistance of the aggrieved national where government fails to respond
appropriately or deals with the matter in bad faith or irrationally. The court relied on
the judgment in Kaunda to conclude that the state had a duty to provide assistance
to the applicant.

Question 4

4.1

All members shall refrain in their international relations from the threat or use of force
against the territorial integrity or political independence of any state, or in any other
manner inconsistent with the Purposes of the United Nations12.

If the envisaged use of force is itself unlawful, the stated readiness to use it would be
a threat prohibited under Article 2, paragraph 4. Thus it would be illegal for a State to
threaten force to secure territory from another State, or to cause it to follow or not

11
Von Abo v Government of the RSA 2009 (2) SA 526 (T).
12
Strydom 138
follow certain political or economic paths. The notions of threat and use of force
under Article 2, paragraph 4, of the Charter stand together in the sense that if the
use of force itself in a given case is illegal, the threat to use such force will likewise
be illegal13.

“The territory of a State shall not be the object of military occupation resulting from
the use of force in contravention of the provisions of the Charter. The territory of a
State shall not be the object of acquisition by another State resulting from a threat or
use of force. No territorial acquisition resulting from the threat or use of force shall be
recognised as legal14”

No State may use or encourage the use of economic, political or any other type of
measures to coerce another State in order to obtain from it the subordination of the
exercise of its sovereign rights and to secure from its advantages of any kind15

No State or group of States has the right to intervene, directly or indirectly, for any
reason whatever, in the internal or external affairs of any other State. The foregoing
principle prohibits not only armed force but also any other form of interference or
attempted threat against the personality of the State or against its political,
economic, and cultural elements16.

Articles 2(3) and (4) of the Charter provide that states must settle their disputes
peacefully, it further provide for a general prohibition on the use of force. Article 51
allows for individual or collective self-defence. This action is allowed only against an
armed attack and must be reported to the Security Council and shall not in any way
affect the authority and responsibility of the Security Council to take at any time such
action as it deems necessary in order to maintain or restore international peace and
security.

The purpose of the attack must be to defend yourself, and must not contain some
hidden agenda. The measures used must be in proportion to the threat posed. The
United States was unaware that the attack was going to take place. The question is
13
Strydom 141
14
Strydom 141
15
Strydom 141
16
Strydom 142
must you wait until you are actually attacked before you act, if notice that the attack
is imminent, can you defend yourself before you are actually harmed. This action is
known as anticipatory self defence.

4.2

In terms of article 2(3) of the UN Charter, member states must settle their
international disputes by peaceful means in such a manner that international peace
and security, and justice, are not endangered17

Article 33(1) Chapter VI of the UN Charter, provides that the parties to a dispute that
has possibility to endanger international peace and security, must seek a solution by
negotiation, enquiry, mediation, conciliation, arbitration and judicial settlement.

according article 35 (1) of un charter any Member of the United Nations may bring
any dispute, or any situation of the nature referred to in article 34, to the attention of
the Security Council or of the General Assembly which refers to a situation, which
might lead to international friction and according to article 37 the parties to a dispute
of the nature referred to in Article 33 fail to settle it by the means indicated in that
Article, they shall refer it to the Security Council. If the Security Council deems that
the continuance of the dispute is in fact likely to endanger the maintenance of
international peace and security, it shall decide whether to take action under Article
36 or to recommend such terms of settlement as it may consider appropriate18.

17
Strydom 138
18
Lcp4801 guide p 48-49
Bibliography
books

polina, f., 2018. international law. pretoria: unisa.

strydom, h., 2020. international law. 2nd ed. s.l.:oxford university press.

Journal articles

mutua, m. w., 2018. what is twail. cambridge university press, Volume 94, pp. 31-40.

Cases

Von Abo v Government of the RSA 2009 (2) SA 526 (T).

Van Zyl v Government of the RSA 2008 (3) SA 294 (SCA)

R v Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet Ugarte (No 3)

119 ILR 136 (1999)

Articles

Article of Draft Articles on Diplomatic Protection