Subverting Racism in / through International Law Scholarship

International legal scholarship is undergoing a metamorphosis. Scholars may quibble over the catalyst and trajectory, but they concur that a shift is underway. At least this was the premise of a symposium organised by the Chicago Journal of International Law this past week, entitled The Transformation of International Law Scholarship.

The event showcased three American legal academics: Daniel Adebe, Adam Chilton, and Tom Ginsburg. Authors of an article that inspired the event, they argue that the spread of the social science method is, possibly, the most notable development in this upheaval. Scholarship on international law now evidences many of the methods common to the social sciences including empiricism, scepticism, and normative restraint. They contrast this novel approach to the theoretical and normative ones which once dominated the field. “This [new] generation of scholars has spent less time arguing about topics like whether theoretical approaches like realism or constructivism are better justified” they proclaim, “and more time arguing about topics like what the best way to empirically assess whether human rights treaties are improving human rights.” I share only minor comments about their argument before segueing into the core of my essay about racism. 

The claim is valid as international legal scholars—and legal scholars at large for that matter—adapt to the characteristics of the university environment. Despite prolonged resistance, today’s law schools mostly accept that the notion of law as an autonomous universe was always fantastical. Formalism is useful when studying judgments, until it proves impotent when seeking to explain the indeterminacy of legal interpretation (not to mention of lawmaking). Something social scientific always undergirded the analysis, even if many legal academics pretended otherwise. As the authors intimate, this viewpoint is increasingly anachronistic and a widening share of international legal scholarship is denoted by inter-disciplinarity and methodological diversity.

Their argument is also limited and flawed. For example, I take issue with the suggestion that social scientists practise normative restraint. Few social scientists hold on to this unicorn with most accepting that our formulation of hypotheses, choice of methods, analysis of data, and articulation of findings are all steeped in partiality. Social scientists are normatively predisposed; the art lies in accounting for bias when building an academic investigation. Other participants also raised reservations so we can only hope the reference was more rhetorical than reasoned. 

Next, the implication that theory is becoming obsolete is overstated, not to say plain wrong. While it is true that early international legal theories such as positivism, naturalism, and realism have fallen to the wayside, it is equally true that they were always dubious frames anyway. It is not that scholars have fallen out of favour with theory but that they have fallen out of favour with misguided theories. In the past generation alone, we chart the rise of Third World Approaches to International Law, Feminist Legal Theory, Postcolonial Theory, Marxism and the Law, Queer Theory, and Anti-Authoritarian Anarchism in international legal scholarship. To aficionados of these theories, ‘justification’ is far removed from their thinking. Rather, they use theory to centre communities hitherto sidelined in legal analysis and to showcase the particularities of their relationships to legal phenomena.

To use a hackneyed example, the testing of sovereignty through a positivist lens might make sense for a European state, but it is wholly incongruent to the experiences of the Third World, hence the purchase of TWAIL. To use another, it is only through a feminist lens that we come to appreciate why we should treat sexual violence in a time of war as a crime against humanity. It is also through this same lens that we understand that the Rome Statute did not go far enough in protecting women against the gendered consequences of war. Debates about theory in international legal scholarship are lively, dynamic, and stimulating. Also, as mentioned to me by an astute reader, much theory is embedded, and the suggestion that we are now in a post-theory era is equivalent to the claim that Obama ushered a post-racial society. More on this below.

My last observation is about the absence of epistemology in their presentation (an oversight in their co-panelist’s comments on Chinese developments in legal scholarship as well). As I argue in a forthcoming article—coincidentally in the Asian Journal of International Law—the epistemological hold of Eurocentrism over international law and over scholarship is fraying. Both decolonisation and decoloniality theories have raised our awareness of the epistemic violence that undergirds the entire European international legal edifice. Even orthodox publicists acknowledge that much international law is based on a flawed premise, though I’ll say it once more to dispel any doubt: European subjectivity never equated with human objectivity. 

Scholars now explore historical and contemporary approaches to international law from within the pluriverse: how do Chinese, Islamic, Caribbean, Indigenous, and other civilisational traditions regard international law? New epistemologies herald new theories, methods, perspectives, and conceptions of international law. They also generate new scholarship! In fact, were the era of Eurocentric international law not on the wane, my colleagues at Opinio Juris would not have invited me into the fold. The absence of engagement with epistemology perpetuates the universalist canard, doing early career scholars in international law a disservice as they seek to conform rather than to question, the latter of which better coheres with the social science method. To paraphrase Cedric Robinson, we no longer need limit ourselves to the meaning of knowledge from a European vantage point.

As I said, my comments are minor and I encourage readers to explore their argument further. For me, what stood out in the Symposium was not the presentation by the keynote authors but by the final panelist: James Thuo Gathii. He stole the show.

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Gathii is a jurist like no other. His ability to produce muscular scholarship on all matters international and legal is rivalled only by his commitment to confronting the inequities of the legal academy (his SSRN page is jaw-dropping in both respects). International Law and Eurocentrism (1998) and Studying Race in International Law Scholarship Using a Social Science Approach (2021) bookend his near generation-long span of iconoclastic scholarship, propelling him into repeated confrontations with interlocutors of the status quo. At the Symposium, Gathii was on form. 

He used the social science method to examine the relationship between race and scholarship in the American Journal of International Law (AJIL) and in AJIL Unbound (Unbound). The data is damning. Of the 8000+ documents published in both journals over more than a century, 153 included the word race. Once we remove documents that make only benign references to the concept, the number drops to 24. Of these, 3 reflect race in the title. When we account for international law’s racialised history, involving extensive practices of white supremacy such as enslavement, colonisation, genocide, extraction, and exploitation, Gathii notes that the exclusion is both peculiar and indefensible. 

He probes four potential hypotheses: a) conscious exclusion of scholarship on race, b) prejudicial scrutiny of scholarship on race, c) favouring debates on topics other than race, and d) colour-blindness as a default-mode when selecting articles. It was a provocative presentation and the underlying data is dispiriting and infuriating in equal measure. Admittedly, I felt the same about the event. The organisers invited sixteen panelists and two separate individuals opened the proceedings. Of the 18 speakers, three were black, two were Chinese, and thirteen were white. The lack of representation is comparable to the ethnic homogeneity that bleaches legal academia across the USA. I also note that 13 are based at US law schools, 2 in China, and 1 in Canada, England, and Singapore respectively.  

Throughout, I wondered which of Gathii’s hypotheses could explain the uniform composition of this event on international law. Neither his first nor second are relevant. And while there is some purchase to the third and fourth, both feel askew. So I devised my own: first, the American academy of international law is both insular and ethnocentric and, second, the American academy of international law is complicit in collective acts of epistemic injustice. 

To the first, without malice, the structure of the event was characteristic of  the insularity of American scholarly discourse on international law. To the extent that the world beyond its borders is even seen, it is mostly superfluous, much like the American baseball league’s hyperbolic World Series. The feeling was especially acute when a white American scholar based at Oxford spoke of the evolution of Chinese scholarship on international law. It would have been more appropriate to name the event the Transformation of American Scholarship on International Law. I even question whether the invitations to Gathii as well as to Akinkugbe, Chen, Jia, and Rao were akin to Anghie’s ornamentalism. In its own way, Gathii’s presentation provided a macro-critique of this condition with the event as a real-time case study.

To the second, despite the incendiary nature of Gathii’s thesis and evidence, other than Olabisi Akinkugbe, neither panelist nor participant posed a question. Please put the absence of curiosity into perspective: Gathii had just revealed that, of the 7500 documents published by the AJIL across a century of scholarship, only 24 engage with the topic of race. Of the 500 documents published by Unbound in seven years, not a single one does. Yet, when he finished, crickets filled the room. Sara Ahmed explains that the privilege of whiteness is the absence of race. Others are racialised; whites are. Without reading too much into the event, I do question how long international law scholars will deny the racist history upon which international law rests and the opportunities this produces for white scholars, such as the privilege of staying silent before persistent racial injustices.

Since I cannot investigate either hypothesis in this essay, I conclude with two additional reflections that scholars of international law might interrogate. 

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To the extent that I found any aspect of Gathii’s intervention lacking, it was his failure to mention epistemic and hermeneutical injustice. While I allude to both earlier, I believe additional remarks are warranted.

In the Routledge Handbook of Epistemic Injustice, Kidd, Medina, and Polhaus define epistemic injustice as “forms of unfair treatment that relate to issues of knowledge, understanding, and participation in communicative practices.” The forms are plentiful and instances of injustice include “exclusion and silencing”, “invisibility and inaudibility”, “having diminished status or standing in communicative practices”, or “receiving no or minimal uptake.” Hermeneutical injustice is germane, albeit with important distinctive features. Scholars deploy it to describe a gap in collective interpretive resources that put “someone at an unfair disadvantage when it comes to making sense of their social experiences.” 

The history of international law is one of injustice. Few publicists deny this even if most are loathe to engage it in their scholarship. Modern international law is best qualified as European International Law or, as I do, conceptualised as European outer-state law. I use the latter term to capture the double-standards Europe practises vis-a-vis international law. Their system proffered not rules to mediate relations between sovereign states but guidelines about how European states would treat non-Europeans. “Among ourselves, we operate on the basis of laws and open cooperative security” proclaimed Robert Cooper, Tony Blair’s consigliere. “But when dealing with more old-fashioned kinds of states outside the postmodern continent of Europe, we need to revert to the rougher methods of an earlier era – force, pre-emptive attack, deception, whatever is necessary to deal with those who still live in the nineteenth century world of every state for itself.” I note that Cooper boasted of his ethnocentricity in 2002. He was, of course, in good company with inflections of racialisation and racism evident in the scholarship of Vitoria, Grotius, Vattel, Westlake, and Lauterpacht, to name a few, publicists intensely relaxed about exploiting ethnocentrism to advance their agendas.

While most are baffled by the diminutive thinking of nativists, publicists demonstrate a remarkable ability to overlook the ethno-chauvinism of our discipline. That is the essence of epistemic and hermeneutical injustice. AJIL excludes debates on race and international law. Unbound makes race invisible altogether. Non-Eurocentric perspectives enjoy lesser status, unless they are measured against a European benchmark and preferably by a white scholar. Despite international law’s brutal history and generations of critical race theory, race receives minimal uptake among international lawyers. Last, many non-racialised scholars fail to appreciate how their approach toward racialised academics places us at an unfair disadvantage. Even in the face of crickets, we are compelled to justify the relevance of our social experience. I thank Gathii for confronting the ubiquitous polar bear in the room on our behalf.  

My second concluding reflection is a call to action. Challenges to epistemic and hermeneutical injustices must be regular and rigorous. Moving the centre demands a concerted effort by motivated academics: first, to engage with those scholarly areas hitherto ignored and, second, as an expression of solidarity with the social experiences of those disadvantaged by the injustices. AfronomicsLaw is one such initiative where scholars probe the development of international economic law in the context of the African continent. The Teaching and Researching International Law in Asia is another, examining international legal developments across the Asian one. And, two forthcoming Oxford handbooks—one on international law and the Arab world and the other on its relationship with the Americas and the Caribbean—verify that the transformation of international legal scholarship is well underway.

Yet, however valuable, none of these initiatives addresses the injustices Gathii details, at least not directly. To this end, the forthcoming issue of the Caribbean Law Review is thematically candid: Racialisation and Racism – Pillars or Perversions of the Law? To ensure transparency, know that I am the Executive Editor of the CLR. As per the call for papers:

“[We] will explore the role of law in the constitution, thwarting, and transformation of racism. Where do we locate the law in these practices? Does it sit above, below, or between systems of racialisation and racism? Is racialisation an anthropological, legal, economic, or epistemological process? Is it all of them? How do legal scholars theorise racism, and how do we connect it to other isms? Pragmatically, how may engagement with race transform questions of policy, law-making, and legislative design or, more generally, how we do law?”

The Caribbean Law Review: Volume 20, Issue 1 (Call for Papers)

Gathii is not alone in his confusion at the tenacious aversion of publicists to deliberating race. He should not be alone in subverting racism either. To help redress racial injustices in the academy, I invite colleagues to contribute to the CLR and to right an on-going wrong. I promise that, once we publish the issue, we will hold a Symposium on the Future of Legal Scholarship that includes representatives from around the actual world.

Photo by Edwin Gonzalez on Unsplash