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Based on an empirical review of post-RDS caselaw, I argue that there is a demonstrable colour blindness within the existing jurisprudence on judicial impartiality. I illustrate this colour blind approach through two arguments. The first argument is based on the evidence needed to pierce the veil of judicial impartiality. A large number of the cases surveyed illustrate the propensity of decision makers to deny recusal arguments based on the cogency of the evidence. In these cases of colour blind decision making, the presented evidence was deemed insufficient to warrant piercing the veil of judicial impartiality. The second argument focuses on judges that adopt an antiracist perspective. When judges have relied on social science evidence to engage in contextual and antiracist judging, they have been policed and their decisions overturned by supervisory and appellate courts.

Our purpose in creating the TWAIL Review is to provide a space for critical scholars, mainly from the global South and their allies oriented to the South, to participate in the project of international law, to produce knowledge creatively through interdisciplinarity, and to push our discipline towards becoming more just, more radical, and more responsive to the collective challenges we face.

This Special Issue emerges from the Third World Approaches to International Law (TWAIL) Cairo Conference in 2015 and addresses the conference theme, ‘On Praxis and the Intellectual’, by focusing on different aspects of the intellectual as a political actor. In introducing this Issue, we provide some background to the TWAIL network, movement, event, and publications; and delineate our own understandings of scholarly praxis as editors and conference organisers. Broadly, we understand praxis as the relationship between what we say as scholars and what we do – as the inextricability of theory from lived experience. Understood in this way, praxis is central to TWAIL, as TWAIL scholars strive to reconcile international law’s promise of justice with the proliferation of injustice in the world it purports to govern. Reconciliation occurs in the realm of praxis and TWAIL scholars engage in a variety of struggles, including those for greater self-awareness, disciplinary upheaval, and institutional resistance and transformation.

Despite international criminal law’s historically contingent doctrines and embedded biases,Third World self-determination movements continue to be enticed by international criminal justice as a potentially emancipatory project. This article seeks to peer inside the structural anatomy of the international criminal law enterprise from a vantage point oriented to the global South. It reflects broadly on discourses of international criminal law and its exponents as they relate to the global South, and explores one particularly contentious issue in the politics of international criminal law - that of operational selectivity. Redressing such selectivities as they arise from geopolitical biases is an important first step for any reconstruction of the field of international criminal justice. The article emphasizes, however, the need to also look beyond the problems of unequal enforcement, to reconceptualize the forms of violence criminalized at the design level.We ask whether, given certain colonial features, the premise and promise of international criminal justice can - for self-determination struggles or anti-imperial movements in the global South - be anything more than illusory. Drawing on the perspectives of Third World Approaches to International Law (TWAIL), the article concludes with some thoughts on what ‘TWAILing’ the field of international criminal justice might entail.

This paper explores the various means by which we can overcome the universalism imbedded in international law and international institutions. It asks: How can international lawyers and international law scholars learn from the Global South? This ‘how’ question prompts another, but related question: should we learn from the Global South? There is a rich interdisciplinary body of literature that identifies the Global South, or Europe’s other, as a site of knowledge production. The eurocentrism of the social sciences can be identified by examining the various founding fathers of their respective theories (especially sociology). This paper builds on southern theory in order to learn from these diverse perspectives in theorising global governance. This paper is organised in three sections. First, it sets out the rationale for a reorientation towards the Global South by examining the current state of global governance theory. In the second section, this paper focuses on the broad theoretical foundations of the Third World Approaches to International Law [TWAIL] movement. TWAIL scholarship is a reaction against the colonial and imperial projects of international law. Its main claims are set out and then there is an examination of its proposals as a means to arrive at an answer to the second question: should we learn from the Global South? In the final section, this paper explores the question of how we can learn from the Global South. In answering this question, the author offers two insights. The first is based on the premise of international law as a field of practice. The second attempts to problematise the ethics of international legal scholarship.

Editors' introduction to Third World Approaches to International Law (TWAIL) special issue of the Windsor Yearbook of Access to Justice (Vol. 33:3, 2016) - Conspiring in Cairo & Canada: Placing TWAIL Scholarship and Praxis.

I use the United Nations Panel of Experts on Accountability in Sri Lanka’s recommendation to create an international mechanism and recent demands for justice as a springboard to argue that the creation of a new ad hoc international or hybrid criminal tribunal for Sri Lanka may not produce the expected results of prosecuting those responsible for mass human rights violations. I argue that such an initiative will not heal the ruptures and cleavages among the different ethnic communities in Sri Lanka. By teasing out the political nature of international criminal law and the embedded nature of the history of international law, this chapter suggests that the creation of an international institution may not bring to justice the divergent perpetrators of war crimes. Rather, the politics of international institutions and the history of international law may allow for ‘regulatory capture’ and the continuing rise of international experts as seen through the illustrative history of the International Criminal Tribunal for Rwanda.

Global Legal Pluralism: A Jurisprudence of Law Beyond Borders (GLP) by Paul Schiff Berman is a legal pluralist’s contribution to the study of local and global regulation. In a tour de force, Berman articulates clear and concise arguments in support of adopting a pluralist lens (coined as a cosmopolitan pluralist perspective). He magnificently traverses the multiple and complex bodies of literature that seek to understand the various inchoate regulatory regimes, actors, norms, and processes, to simply state that we must harness the benefits of the overlapping legal authorities. The overlapping legal authorities for Berman produce legal hybridity, which is a product of globalization(s).

Professor Ladeur argues that administrative law’s postmodernism (and by extension Global Administrative Law) necessitates that we move beyond relying on ideas of delegation, account- ability and legitimacy. Global Governance, particularly Global Administrative Law and Global Constitutionalism, should try to adapt and experiment with the changing nature of the postmod- ern legality and support the creation of norms that will adapt to the complexities of globalisation. Ladeur’s contestation, similar to GAL’s propositions, can be challenged. By taking the International Criminal Tribunal for Rwanda, a significant contributor to the field of international criminal law, as an example, it is suggested that the creation of networks that Ladeur makes visible may not account for ‘regulatory capture’. This paper will argue that from the outside, the proliferation of networks may suggest that spontaneous accountability is possible. A closer look, however, drawing on anthropological insights from the ICTR, reveals that international institutions are suscepti- ble to capture by special interests. Furthermore, there are two central themes that animate the response to Professor Ladeur: the political nature of international institutions and the history of international law, and the role of institutions in this history.

Victor Kattan’s “From Coexistence to Conquest: International Law and the Origins of the Arab-Israeli Conflict, 1891-1949” is an archival excavation of the Israeli-Palestinian (Arab-Israeli) conflict and its origins. This review will examine the contours of Kattan’s book followed by a brief examination of objectivity in academic scholarship often enunciated through the concept of ‘balance’ as it relates to those scholars (like Kattan) working on the conflict. Finally, this review will explore some of the weakness of the arguments that Kattan advances.

With this brief introduction to a special issue of the Osgoode Hall Law School Comparative Law and Political Economy Research Paper Series, we hope to evoke some of the discussions and background preparation that invigorated the 2010 Osgoode Graduate Law Students' Association conference.

In this paper, the aim is to assess the procedure of the recent Sri Lankan Presidential Commission of Inquiry and to provide a substantive legal critique of the conflict of interest that troubled the Commission. Divided in four sections, the article provides a general introduction on the recent Commission of Inquiry and its observing body, the act in which it is grounded, the Presidential Warrant that created it, the visible conflict of interests regarding the Attorney General’s Office in serious violations of human rights and the alleged bias in the proceedings of the Commission, especially in the case about the killing of 17 aid workers of an international non-governmental organization and the killing of five students. In conclusion, a case for the existence of the apparent bias will be made, not because of the ‘actual and legal’ role of the Sri Lankan Attorney General, but because of the practical realities of Sri Lanka.

The 2005 Supreme Court decision of Chaoulli v. Quebec (A.G.) is the most significant Canadian case vis-a-vis health care rights in the last decade. The two litigants were Dr. Chaoulli, a physician originally from France who was frustrated with governmental limits on his ability to practice privately, and George Zeliotis, a sixty-seven-year-old patient with hip and heart conditions who had to wait nine months for a hip operation. Mr. Zeliotis thought that if he were able to purchase private insurance then he could have financed his hip operation in the private sector. Chaoulli and Zeliotis were unsuccessful at both the trial and appeal levels but struck controversial success before the Supreme Court of Canada.