scholarly journals CONSTITUTIONAL CHALLENGES OF THE SOUTH: INDIGENOUS WATER RIGHTS IN CHILE - ANOTHER STEP IN THE “CIVILIZING MISSION?

2017 ◽  
Vol 33 (3) ◽  
pp. 87-110 ◽  
Author(s):  
Amaya Álvez Marín
Keyword(s):  
International Law ◽  
Latin American ◽  
Third World ◽  
Water Rights ◽  
Indigenous Rights ◽  
International Treaties ◽  
Critical Approach ◽  
Human Right ◽  
Civilizing Mission ◽  
Legal Scholarship

This article explores the struggles of indigenous rights based on the adoption of the 1980 Chilean Constitution, under an authoritarian frame, that resulted in water being considered as a commodity and, therefore, subject to radical market rules that serves as a relevant local example in conflict with ratified international treaties. The argument proposes a critical approach to establish a continuum of the recurring rejection of the ancestral beliefs of Indigenous People since colonial times. In light of the actual constituent process for drafting a new constitution in Chile (2015), the article evaluates the emancipatory potential of Chile’s early sovereignty proposal on natural resources and later articulations of water as a human right. The argument assesses the possibility of including alternative views in the constituent debate over water, under the light of Third World Approaches to International Law [TWAIL] and Latin American International Law [LAIL] legal scholarship, aiming to find space in the Chilean constitutional realm for non-extractive perspectives.

Contours of an Indigenous Peoples’ Right to Water in Latin America under International Law

2012 ◽  
Vol 1 (2) ◽  
pp. 211-236 ◽  
Author(s):  
Marco Parriciatu ◽  
Francesco Sindico
Keyword(s):  
Human Rights ◽  
Latin America ◽  
International Law ◽  
Indigenous People ◽  
Indigenous Peoples ◽  
Latin American ◽  
Human Right ◽  
Customary Laws ◽  
The One ◽  
Definition Of

This article critically assesses the nature and the content of a possible human right to water for Indigenous People in the Latin American context. On the one hand, after introducing the deliberately unclear definition of Indigenous People, the article considers that a human right to water is embedded in Indigenous Peoples’ customary laws, which, according to legal pluralism, are to be considered as a legitimate source of law. The article then moves to the content of a possible human right to water for Indigenous People in the Latin American context. The importance of the jurisprudence of the Inter American Court of Human Rights is highlighted, and the obligation for States to consult with Indigenous People when dealing with their water resources is hailed as one of the key elements of a human right to water.

scholarly journals TWAIL: a Paradox within a Paradox

2020 ◽  
Vol 22 (2) ◽  
pp. 163-196
Author(s):  
Mohsen al Attar
Keyword(s):  
International Law ◽  
Third World ◽  
Legal Theory ◽  
Theory Method ◽  
Legal Scholarship ◽  
Scholarly Community ◽  
Do So ◽  
Critical Perspectives

Abstract What insight do critical perspectives bring to international legal theory? In the following article, I answer this question through an examination of Third World Approaches to International Law (TWAIL). Troubled by geopolitical imbalance in the enterprise of international law, a group of critically minded scholars sought to expand the scope of legal scholarship. They would do so by growing a scholarly community sensitive to Third World concerns in their engagement with international law. Movements are known to collapse just as quickly as they sprout and it is testament to TWAIL’s force that, twenty years on, it is still gaining momentum. Self-described as a theory, method, sensibility, movement, and, as per the moniker, approach, TWAIL’s place in legal theory remains ambiguous. Drawing on a range of TWAIL scholars as well as journeymen commentators, I investigate, first, how its scholars represent TWAIL’s theoretical credentials and, second, where its contribution fits in the field.

scholarly journals Indigenous Water Ontologies, Hydro-Development and the Human/More-Than-Human Right to Water: A Call for Critical Engagement with Plurilegal Water Realities

Water ◽  
2021 ◽  
Vol 13 (12) ◽  
pp. 1660
Author(s):  
Lieselotte Viaene
Keyword(s):  
Public Policy ◽  
Human Rights ◽  
International Law ◽  
Water Rights ◽  
Hydro Development ◽  
Water Conflicts ◽  
Human Right ◽  
Bottom Up ◽  
Critical Engagement ◽  
The World

Water conflicts across the world are bringing to the fore fundamental challenges to the anthropocentric boundaries of the human rights paradigm. Engaging with the multi-layered legal ethnographic setting of the Xalalá dam project in Maya Q’eqchi’ territory in Guatemala, I will critically and empirically unpack not only the anthropocentric boundaries of the hegemonic human rights paradigm, but also the ontological differences between indigenous and Euro-Western legal conceptualizations of human-water-life. I argue that it is necessary to pave the way for urgent rethinking of the human right to water and, more broadly, human rights beyond the modern divide of nature-culture. International law and human rights scholars should therefore not be afraid of plurilegal water realities and should start engaging with these ontologically different concepts and practices. Embarking on a bottom-up co-theorizing about human and beyond-the-human water rights will be imperative to avoid recolonization of indigenous knowledges-ontologies by non-indigenous scholarships and public policy.

Disciplinary Privilege and the Promise of Decampment: A Response to James Thuo Gathii's “The Promise of International Law: A Third World View”

2020 ◽  
Vol 114 ◽  
pp. 187-191
Author(s):  
Fleur Johns
Keyword(s):  
International Law ◽  
Third World ◽  
World View ◽  
Legal Scholarship

It is an immense privilege to respond, as discussant, to James Gathii's 2020 Grotius Lecture.1 I have known and admired Professor Gathii and his work for decades. He is one of those people who manages to combine great accomplishment in international legal scholarship and practice with an unswerving commitment to teaching, collegiality, and mentoring. In these, and in other ways, James Gathii walks his talk. And his talk, as you have heard, is challenging.

scholarly journals SPLITTING TWAIL?

2017 ◽  
Vol 33 (3) ◽  
pp. 37-56 ◽  
Author(s):  
George R.B. Galindo
Keyword(s):  
International Law ◽  
Third World ◽  
Legal Scholarship ◽  
Common Features ◽  
Two Generations ◽  
Successive Generations ◽  
Intellectual Movement

Periodizations are political acts. They produce temporalities that do not necessarily coincide with chronology. TWAIL (Third World Approaches to International Law) scholars have generally endorsed the division of TWAIL into two generations. Whereas TWAIL I was composed by scholars that thought and wrote about international law during the decolonization process, TWAIL II began at the end of the 1990s. Although there are common features between the generations, a number of differences are also identified and emphasized by TWAIL II scholars. In this article, I advance the argument that such periodization is problematic for four reasons: anachronism, progressivism, a difficult self-identification of past third world legal scholars with TWAIL and the image made of TWAIL by non-TWAILers. Instead of periodizing TWAIL in two successive generations, I argue that identifying it as part of a larger tradition of third world international legal scholarship is more productive for the inner coherence of the intellectual movement and, consequently, for its success in the international legal academia.

Francisco de Vitoria’s Unexpected Transformations and Reinterpretations for International Law

2013 ◽  
Vol 15 (3) ◽  
pp. 287-318 ◽  
Author(s):  
Ignacio de la Rasilla del Moral
Keyword(s):  
Twentieth Century ◽  
International Law ◽  
Third World ◽  
Building Blocks ◽  
Legal Order ◽  
Legal Scholarship ◽  
American Tradition ◽  
International Legal Order ◽  
American Society ◽  
The University

Abstract A review of some of the legacies of Vitoria for international legal scholarship accompanies, in the first part, a retrospective gaze at the first third of the Twentieth century, in order to examine how the founder of the American Society of International Law, James Brown Scott, contributed to (re)establish Vitoria as the father of international law in the inter-war years. The second part provides a genealogy of the critical front of the Vitorian revival in international law today. Special attention is, then, paid to some of the intellectual building-blocks and programmatic tenets which have inspired a Third World Approaches to International Law (TWAIL) anti-imperial narrative of the international legal order along with a TWAIL’s re-interpretation and re-contextualisation of the works of the sixteenth century’s Prima professor of Sacred Theology at the University of Salamanca. The conclusion reflects on the lasting legacy of the Spanish Classics in the American tradition of international law.

scholarly journals Evolution of Indigenous Rights Under International Law: Analysis from TWAIL Perspective

2019 ◽  
Vol 19 (1) ◽  
pp. 7-24
Author(s):  
Rashwet Shrinkhal
Keyword(s):  
International Law ◽  
Indigenous People ◽  
Third World ◽  
Indigenous Rights ◽  
Modern Culture ◽  
Marginalized Groups ◽  
Economically Marginalized ◽  
The World

Indigenous people are the most socially, politically, and economically marginalized groups in the world. They are the most oppressed on account of the fact that the values sustaining the moral roots of their culture are considered incompatible with the values of modern culture. This article traces the evolution of rights of indigenous people in international law. It argues that discrimination against indigenous people was maintained under international law based on differences on scale of civilization. It will demonstrate how ‘universal standards’ may be applied not as an agent of liberation but dominance. In doing so, Third World Approaches to International Law (TWAIL) perspective is adopted to deconstruct international law.

International Law and Policy Governing Water

2018 ◽  
Keyword(s):  
International Law ◽  
National Level ◽  
International Treaties ◽  
Human Right ◽  
Law And Policy ◽  
Un General Assembly ◽  
International Water Law ◽  
International Water ◽  
Water Treaty ◽  
Special Relevance

This chapter brings together key international legal instruments of the water sector, which provide the context and inform developments at the national level. The chapter starts with a section on the human right to water, as embodied in international treaties, UN General Assembly Resolutions and General Comment 15. The second section looks at protection and regulation of water and includes key soft law instruments, including the Stockholm Declaration, 1972 and the Dublin Statement, 1992. The last section focuses on what is more traditionally understood as international water law and reproduces the main framework treaty in the field, the UN Watercourses Convention, 1997, the proposed global framework for transboundary aquifers and a bilateral treaty (the Indus Water Treaty), which are of special relevance to India.

scholarly journals The Land of Nations: Indigenous Struggles for Property and Territory in International Law

AJIL Unbound ◽  
2021 ◽  
Vol 115 ◽  
pp. 129-134
Author(s):  
Roger Merino
Keyword(s):  
International Law ◽  
First Nations ◽  
Third World ◽  
Civilizing Mission ◽  
Settler Societies ◽  
Western Law

Key studies have highlighted how Western law was central to the civilizing mission of colonialism, legitimizing conquest while presenting itself as a colonizer's gift for overcoming barbarism. But law was not just an imposition to dispossess resources and accumulate labor; it was also transformed by the contestations of First Nations and the new practices deployed in settler societies. In this context, the first international legal theories were aimed at subordinating third world societies and, at the same time, provided the foundations of Western legal apparatus, shaping racially the modern concepts of sovereignty, territory, and property.

The Rise of Common Principles for Investment in Latin America: Proposing a Methodological Shift for Investor-State Dispute Settlement

2016 ◽  
Vol 17 (4) ◽  
pp. 614-633 ◽  
Author(s):  
José Gustavo Prieto Muñoz
Keyword(s):  
Latin America ◽  
International Law ◽  
Latin American ◽  
Dispute Settlement ◽  
International Investment ◽  
Critical Approach ◽  
International Investment Law ◽  
Investment Arbitration ◽  
Investment Law ◽  
The 19Th Century

The present article argues for the need of an alternative way of thinking about international investment law and investor-State disputes in Latin America. The article explains how the current critical approach to foreign investment comes from a conceptual trajectory that originated in the 19th century with the work of Carlos Calvo, inspired in turn by Emer De Vattel’s conceptual model for international law, and how a principles discourse would be a viable alternative for enhancing the legitimacy of investment arbitration. The article further structures such a principles discourse in three clusters: general principles recognised by Latin American nations; principles compatible with concepts developed by investment arbitrators, and regional principles not yet recognised by international investment arbitrators. The last cluster contains in particular principles such as transparency and inclusion that ought to be the core of a Latin American discourse as the limit of the authority granted to investment arbitrators.

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