Abstract
The purpose of this research is to bring to the forefront of Aotearoa New Zealand legal
discourse the understudied, yet highly impactful scholarship of Third World Approaches to
International Law (TWAIL) and Critical Race Theory (CRT). This thesis examines how CRT
and TWAIL legal scholarship relates to Aotearoa New Zealand Raced-Based Anti- Discrimination Law. TWAIL authors critique the Westernised hegemony of legality which has
been enabled through colonisation, eurocentrism, and cultural imperialism. CRT scholars look
at the treatment of African, Asian and Latinx Americans and how racial laws have enabled
systemic racism to manifest in legal institutions which in turn determine the vitality of race-based human rights. Both TWAIL and CRT scholarship analyse the neutrality of law through
concepts such as “colour-blindness”, “race consciousness”, “universalism” and “cultural
relativism". In turn, these modes of analysis offer a counter-hegemonic framing of law which
places race at a focal point of law. CRT and TWAIL scholars relate formal and substantive
equality to race-based legislation and offer insight as to how formal equality perpetuates racial
inequality and how substantive equality addresses racial inequalities. They nevertheless
caution against the formalisation of substantive human rights. Using a CRT and TWAIL lens,
this thesis looks at Aotearoa New Zealand’s approach to human rights, particularly race-based
discrimination, with a focus on legislation and case law. My research uses a joint CRT-TWAIL
analysis and their conceptual tools to analyse Aotearoa New Zealand’s relationship between
law and race and how it relates to international human rights legislation and approaches to
racial discrimination. In the relationship between race and law, formal equality’s consistent
treatment through neutral, universal and colourblind policies enable race-based discrimination
to persist. On the contrary, substantive equality aims to address racial discrimination through
positive discrimination by enacting race-conscious, culturally relative affirmative action laws
and policies.