Sailing with TWAIL: A Historical Inquiry into Third World Perspectives on the Law of the Sea

Abstract

The contemporary law of the sea is not only a making of its own time but also a result of evolutions from the past. Indeed, the LOSC reflects a particular historical trajectory from Grotius’s Mare Liberum to UNCLOS III and the historical circumstances under which it developed. Using TWAIL as a theoretical and methodological lens, this article critically analyzes the historical development of the law of the sea from Third World States’ standpoint. The article demonstrates that the rules and principles of the traditional law of the sea were conceptualized by and designed to promote the colonial and other interests of the powerful and technologically advanced Western States. Nonetheless, Third World States consistently challenged the old legal order of the sea and played significant roles in the evolution of existing doctrines and the development of new spatial architecture of the oceans and the associated principles. The article concludes that, despite such efforts of Third World States to reorient the law of the sea in a manner to address their interests, the protections that current international law offers to Third World States remain fragile in many areas, which areas continue to be subjects of the ongoing Third World struggle.