국제법학방법으로서의 ‘국제법에 대한 제3세계의 접근'

TWAIL as a Method of International Law

As a keynote speech an Academic Conference held under the subject of "Three World and International Law", this essay tries to make an expository description of the TWAIL(Third World Approaches to International Law) postulating it as a method of international law. The first matter to be made clear for such a description is "what the third world is". The words "third world" are used in different meaning in different contexts. However, for the TWAIL as a method of international law, what is important is not the "existence of unproblematic monolithic category" but the "existence of a group of states and populations" which deem themselves as third world, as professor Okafor emphasizes. According to the time when it appeared, TWAIL is classified as TWAIL I and TWAIL II. TWAIL I appeared in the circumstances of decolonization. In that sense, the Bandung Conference in 1955 is called as the birth place of the TWAIL I. TWAIL II is said to have originated from meeting of graduate students at the Harvard Law School in 1996. Therefore, TWAIL II is 40 years later than TWAIL I. At that time, European colonialism seem to have disappeared from international society. Nonetheless, as a matter of fact, it maintained its life as neo-colonialism. The TWAIL II wanted to expose and criticize this (neo-)colonialism deeply rooted in international law. In the next part of the expository description, main assertions of the TWAIL I and TWAIL II are introduced. TWAIL's relation with other methods of international law and methods of law is reviewed also. It is explained that among many methods of international law TWAIL especially criticizes and objects to the 19th century legal positivism and its successors. The fact that the TWAIL borrows much from methods of law such as history of law, Marxist theory of law, and economic analysis of law is mentioned. The influence of structuralism and post modernism on the TWAIL and the commonality among the TWAIL and Critical Legal Studies, New Approaches to International Law, Critical Race Theory and LatCrit(Latina and Latino Critical Legal Theory) are also pointed out.