Theoretical insights at the margins of international law: TWAIL and CRT.

Position:Third World approaches to international law, critical race theory - International Law in a Time of Change - Proceedings of the 104th Annual Meeting of the American Society of International Law - Discussion

This panel was convened at 12:45 p.m., Friday, March 26, by its moderator, Jeanne M. Woods of Loyola University College of Law, who introduced the panelists: Henry Richardson III of Temple University Beasley School of Law and Siba Grovogui of Johns Hopkins University. Balakrishnan (Raj) Rajagopal of the Massachusetts Institute of Technology, International Development Group, and Celina Romany of the Puerto Rico Bar Association, were unable to participate. *

* Siba Grovogui did not submit remarks for the Proceedings.


Welcome to the Roundtable on "Theoretical Insights at the Margins of International Law." The genesis of this panel can be traced to a letter penned by one of our presenters, Professor Henry J. Richardson HI, on the occasion of an April 1999 American Journal of International Law Symposium on Method in International Law. (1) Professor Richardson's letter protested the fact that proponents of the critical theoretical movements of people of color, Critical Race Theory ("CRT") and Third World Approaches to International Law ("TWAIL") had not been invited to participate in the Symposium. Now, eleven years later, a leader in the TWAIL movement, Professor Antony ("Tony") Anghie was invited to deliver the prestigious Grotius Lecture. So perhaps the very fact that this panel has been convened at ASIL signals that international law is indeed--as our Annual Meeting theme suggests--in a time of change. Maybe the theme is more than just a slogan; maybe it reflects the kind of cosmic "opening" in international relations that Tony described in his lecture.

In fact, for the scholars on this panel, change is the avowed agenda. For these scholars, international law is not merely an academic discipline, but contested terrain--a theater in the struggle for social justice and transformation; an instrument to reverse global patterns of domination and subordination that are woven into the fabric of the international order. So, in the spirit of Tony's speech, I would suggest that a change in the title of this panel may be in order. Rather than framing our interventions as a peek in from the margins, a more apt description might be "theoretical insights from the cutting edge" of international law.

Change is a staggering, ever-present dynamic in our world today, mandating incisive interrogation of prevailing paradigms. Post-Cold War triumphalism (2) has ceded to a financial market meltdown that has totally discredited market fundamentalism. Is a "Beijing Consensus" (3) supplanting the Washington Consensus? Has this been signaled by a philosophical shift regarding the role of government intervention in the economy? Will it be accompanied by a de-linking of trade and human rights? (4) Would such developments--again borrowing from Tony's analysis--indicate linear progress or cyclical repetition?

Speaking of cycles, our changing climate portends an era of devastating natural disasters: Think tsunami, (5) Katrina, (6) Haiti, (7) Chile (8)--from a hole in the ozone to a tilt of the axis--exacerbated by the man-made disaster of globalization. How will international law grapple with the implications of these changes? Will such disasters engage doctrinal standards like sovereignty in the context of weak states like Haiti? In the context of a mammoth disaster, what utility will be served by international legal concepts of justice and human rights?

At the heart of the Third World critique is the recognition of the need to reframe the questions---of the fact that because of the structural domination of powerful actors, the framing of questions in traditional ways reproduces prevailing paradigms like racism, patriarchy, the civilizing mission. (9) Therefore, critical race and Third World theorists must question, challenge, and reject fundamental tenets of the canon, such as legal scholarship's claim to ideological neutrality, aspirations of abstract universality, (10) and the fiction of state consent that informs legal positivism. (11) They dispute supposedly neutral social values that may reflect only dominant Northern views. (12) Together with feminists, they interrogate the moral assumptions that underlie international structures and question the pre-ordained model of humanity that shapes prevailing concepts of human dignity. (13) They share an emphasis on social and historical context.

Critical scholars examine the lacunae in international law as closely as they critique its doctrinal corpus. Where are women; religious, ethnic and political minorities; and Third Word and indigenous peoples situated in the discourse? Are they infantilized, present only as victims in need of protection, (14) or is their full international legal personality realized?

CRT exposes the racial dimensions of old and "new legal colonialism." TWAIL highlights racist assumptions in the application of legal rules, such as the fact that international law did not hold colonial powers to account for the many atrocities committed against Third World peoples. For example, Germany's genocide of the Herero people in Namibia (15)--foreshadowing the Holocaust--was dismissed as necessary native pacification. Italy's use of mustard gas in Ethiopia (a sovereign state and member of the League of Nations) during World War II was never prosecuted as a war crime. (16)

In light of this pattern of brutality and impunity, critical scholars consistently foreground the violent origins of international law; condemn the legitimization of violence by international law; and redefine violence to include the violence of poverty, the violence of development, and the violence of conditionality. As Anghie points out, "[a]pproaches to international law that fail to take into account its violent origins might preclude an understanding of the continuing complicity between international law and violence, and in this way, simply perpetuate a 'violence that thinks of itself as kindness.'" (17) Think Kosovo, Iraq, Afghanistan, Somalia. Charlesworth emphasizes that legitimization takes place by accepting violence as an inevitable aspect of international relations, (18) a belief reaffirmed in President Obama's Nobel Prize acceptance speech. (19)

Critical Race Theory emerged to address the shortcomings of traditional civil rights/ integrationist approaches to racial oppression and poverty in the United States. Scholars in this intellectual movement view race as central to the legal and social subordination of people of color. While CRT was born out of the specific struggles of racial minorities in the United States, its theoretical innovations--such as concepts of "interdimensionality" and "intersectionality"--have been employed to expose multiple layers of oppression in the global context as well. (20) Professor Henry Richardson's significant work, The Origins of African-American Interests in International Law, (21) documents the integral relationship between international law and the fate of peoples of African descent world-wide. It opens with the Senate testimony of W.E.B. DuBois in support of ratification of the United Nations Charter, (22) thus contextualizing the constitutive assertion of international legal personality by the progeny of an earlier phase of globalization--the transatlantic slave trade.

As CRT has evolved, Anghie and Chimni also have identified two stages in the evolution of Third World critiques of international law. (23) Third World intellectuals in the immediate postcolonial period saw a convergence of the interests of their people and the initiatives of the newly independent states.

Third World states united in the Non-Aligned Movement and the "Group of 77," asserting political leadership in the new postwar international institutions. Using the United Nations General Assembly, they sought to develop democratic alternatives to positivist "sources" doctrine through General Assembly resolutions. Through the Human Rights Committee, they succeeded in adopting an International Convention on the Elimination of All Forms of Racial Discrimination (ICERD). (24) They promoted the ascendancy of new norms of economic equity through the New International Economic Order (NIEO) (25) and the Charter...

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