Examining the Society in Which We Are Educated: Applying Critical Approaches to International Law Research

1 James Baldwin, A Talk to Teachers, Oct. 16, 1963, www.zinnedproject.org/materials/baldwin-talk-to-teachers (“The paradox of education is precisely this—that as one begins to become conscious one begins to examine the society in which he is being educated.”)

Abstract

International law suffers from a lack of diversity. The scholars who are cited by the International Court of Justice (ICJ) write the most widely used textbooks, and those who are recruited by elite organizations are predominantly Western-educated White males. International law discourse sidelines Third World perspectives. In response, Third World approaches to international law (TWAIL) scholarship centers colonialism and the Global North’s entrenchment of economic and political dominance as the raisons d’être for modern rules of international law. Legal research instructors can address the lack of diversity in international law by incorporating TWAIL scholarship and applying critical approaches to international legal research.

Keywords:

• international law
• critical theory
• Third World approaches
• diversity
• foreign law
• legal research

Acknowledgments

I would like to thank all the participants at the DEI and the Law Librarian Symposium and the pre-symposium workshop, including Scott Dewey, for their thoughtful comments and suggestions on this article. A special thanks to Judith Lihosit for organizing this symposium. I could not have written this article without the support of the librarians at Brooklyn Law School, including Kathleen Darvil and Brittany Persson, who encouraged me to attend this symposium. Finally, I would like to dedicate this article to my mom, Tuula Silverman, who taught me that everyone, no matter their background or circumstances, deserves to be treated with kindness, respect, and with an open heart and mind.

Disclosure statement

No potential conflict of interest was reported by the author(s).

Notes

2 See Usha Natarajan et al., Third World Approaches to International Law Review: A Journal for a Community, 1 Third World Approaches to Int’l L. Rev. 7 (2020).

3 James Thuo Gathii, Writing Race and Identity in a Global Context: What CRT and TWAIL Can Learn from Each Other, 67 UCLA L. Rev. 1610, 1623 (2021).

4 E. Tendayi Achiume & Devon W. Carbado, Critical Race Theory Meets Third World Approaches to International Law, 67 UCLA L. Rev. 1462 (2021); Gathii, supra note 3, at 1610. Makau Matua, Keynote Address: Critical Race Theory and International Law: The View of an Insider-Outsider, 45 Vill. L. Rev. 844, 850 (2000).

5 Moshen al Attar, Subverting Racism in/through International Law Scholarship, Opion Juris (Mar. 3, 2021), https://opiniojuris.org/2021/03/03/subverting-racism-in-international-law-scholarship [hereinafter al Attar, Subverting Racism]. Conversely, al Attar notes in another article in which he examined two of the most widely used textbooks for international law, that in one textbook, International Law by Jan Klabbers, Eurocentrism is not mentioned at all, and in another, International Law by Malcolm Shaw, the author writes, “International law became Eurocentric, the preserve of the civilized Christian states, into which overseas and foreign nations could enter only with the consent of and on the conditions laid down by the Western powers.” Al Attar notes that Shaw suggests other models of international legality exists, but are treated more as “whimsical” than judicious. For example, in discussing Chinese law, Shaw writes that “‘Law’ never attained the important place…that it did in European civilization” and Chinese civilization never developed a “sophisticated bureaucracy” nor a “system of legal rights to protect the individual in the Western sense.” Further, imperialism is only mentioned once in Klabbers’s text and not at all in Shaw’s. See Moshen al Attar, Must International Legal Pedagogy Remain Eurocentric?, 11 Asian J. of Int’l L. 176, 185-86 (2021) [hereinafter al Attar, International Legal Pedagogy]; Jan Klabbers, International Law (2d ed. 2017); Malcolm Shaw, International law (8th ed. 2018).

6 Christopher Gevers, “Unwhitening the World”: Rethinking Race and International Law, 67 UCLA L. Rev. 1652, 1654 (2021).

7 Al Attar, International Legal Pedagogy, supra note 5, at 186; Klabbers, supra note 5; Shaw, supra note 5.

8 Ruth Gordon, Critical Race Theory and International Law: Convergence and Divergence, 45 Vill. L. Rev. 827, 830 (2000).

9 Id.

10 Julia Emtseva, Practicing Reflexivity in International Law: Running a Never-Ending Race to Catch Up with the Western International Lawyers, 23 German L. J. 756 (2022).

11 See al Attar, International Legal Pedagogy, supra note 5, at 184 (noting that “[t]he platitude of the European hold over textbooks on international law protects the ideological influence of Eurocentrism.”); Antony Anghie, Critical Pedagogy Symposium: Critical Thinking and Teaching as Common Sense—Random Reflections, Opinio Juris (Aug. 31, 2020), http://opiniojuris.org/2020/08/31/critical-pedagogy-symposium-critical-thinking-and-teaching-as-common-sense-random-reflections/(noting how the classic Western textbooks used in Asian countries’ international law programs present a Eurocentric vision of the discipline and its history, discouraging many students in those regions from taking international law at all since, as one professor put it, “I have difficulty interesting my students in the subject when the only reference made to my country in a major textbook is that it was “uncivilized.”).

12 Emtseva, supra note 10, at 757.

13 Id. at 758. At a panel discussion on decolonizing human rights law at the ASIL 2023 Annual Meeting, Angela Mudukuti, an international criminal and human rights lawyer, described the challenges faced by people of color from the Global South in advancing their careers in international human rights, noting that most internships are unpaid and it is often difficult to obtain a visa, especially when many organizations do not sponsor visas. Further, regional offices for international NGOs employ staff from the Global North who make significantly more than local staff members. These same organizations are often condescending toward local organizations and express skepticism about the local population’s ability to help themselves. Angela Mudukuti, Presentation at the American Society of International Law Annual Meeting: Decolonizing Human Rights Practice to Promote Racial Justice: Is it Possible? (Mar. 30, 2023).

14 Anghie, supra note 11.

15 Emtseva, supra note 10, at 758.

16 B. S. Chimni, An Outline of a Marxist Course on Public International Law, 17 Leiden J. of Int’l L. 1, 4 (2004).

17 https://tinyurl.com/45mtduub This spreadsheet is from my own research of the top 40 cited “highly qualified publicists” listed in Sondre Torp Helmersen, Finding ‘the Most Highly Qualified Publicists’: Lessons from the International Court of Justice, 30 Eur. J. of Int’l L., 509 (2019).

18 For example, in a recent blog post, Antony Anghie notes that “In developing states that I have taught in, I am especially conscious of a paradox: while international law shapes virtually every aspect of the lives of the peoples there, they produce few international lawyers, and even fewer lawyers who have the expertise to deal with complex international agreements and regimes involving, for instance, foreign investment and trade, human rights and environmental law.” Anghie, supra note 11.

19 Natarajan, supra note 2, at 12.

20 For a summary of the extensive scholarship on critical approaches to legal research, see Nicholas Mignanelli, Legal Research and its Discontents: A Bibliographic Essay on Critical Approaches to Legal Research, 113 Law Libr. J. 101 (2021).

21 Natarajan, supra note 2, at 8.

22 Balakrishnan Rajagopal, International Law and Its Discontents: The Normative Implications, and Strategic Opportunities of Complexity, 106 Proc. Annu. Meet.-Am. Soc. Int’l L. 176-81 (2012); Moshen al Attar & Vernon Tava, TWAIL Pedagogy – Legal Education for Emancipation, 15 Palestinian YB Int’l L. 7, 18 (2015).

23 Al Attar & Tava, supra note 22, at 18.

24 James Gathii, TWAIL: A Brief History of its Origins, its Decentralized Network, and a Tentative Bibliography, 3 Trade L. and Dev. 26, 27 (2011).

25 Gathii, supra note 3, at 1640; Luis Eslava & Sundhya Pahuja, Beyond the (Post)Colonial: TWAIL and the Everyday Life of International Law, 45 Law & Pols. in Afr., Asia and Lat. Am. 195 (2012) (“Although there is arguably no single theoretical approach that unites TWAIL scholars, they share both a sensibility and political orientation.”).

26 Aal Attar & Tava, supra note 22, at 16.

27 Antony Anghie, The Evolution of International Law: Colonial and Postcolonial Realities, 27 Third World Quarterly 739, 741 (2006).

28 Id. at 739.

29 Al Attar & Tava, supra note 22, at 16. Makau Matua summarizes Mohamed Bedjaoui’s, a Third World jurist, indictment of international law as “premised on Europe as the center, Christianity as the basis for civilization, capitalism as innate in humans, and imperialism as a necessity.” Makau Matua, What is TWAIL? 94 Proc. Annu. Meet.-Am. Soc. Int’l L. Apr. 5–8, 2000 31, 33 (2000).

30 Matua, supra note 4, at 850.

31 It is important to draw a distinction between the role non-European nations played in modern international law development, including the rules of trade, war, and diplomacy, and the existence of rules of international law in Third World societies. Individual principles of international law—ideas about diplomacy, rules of war, trade, and peace—are not in of themselves “European.” For example, ancient India had its own “Law of Nations” recorded in manuscripts such as the Smritis, Arthashastras, and the Dharma Sutras. These texts date as far back as 600 B.C. Balraj K. Sidhu, TRILA and India: A Plea for its Restoration, Afronomics L. (Sept. 16, 2020), www.afronomicslaw.org/2020/09/16/trila-and-india-a-plea-for-its-restoration; Anghie, supra note 27, at 741–44; See also Bhupinder S. Chimi, Asian Civilizations and Int’l L: Some Reflections, 1 Asian J. of Int’l L. 39 (2011) (pointing out that many Asian nations’ absence from the UN Convention Relating to the Status of Refugees does not indicate a disinterest in safeguarding the dignity of refugees, but rather a reliance on societal values and traditional practices to ensure protection).

32 Matua, supra note 4, at 849.

33 Antony Anghie, Imperialism, Sovereignty, and the Making of International Law (2005).

34 Chimni, supra note 16, at 15.

35 Simon Chesterman, Asia’s Ambivalence about International Law and Institutions: Past, Present, and Futures, 27 Eur. J. of Int’l L. 945 (2016).

36 Gathii, supra note 24.

37 Ntina Tzouvala, TWAIL and the “Unwilling or Unable” Doctrine: Continuities and Ruptures, 109 AJIL Unbound 266, 267 (2015).

38 Anghie, supra note 27, at 750.

39 Achiume & Carbado, supra note 4, at 1475 (discussing Aslı Bâli & Aziz Rana, Pax Arabica? Provisional Sovereignty and Intervention in the Arab Uprisings, 42 Cal. W. Int’l L.J. 321, 324 (2012)).

40 Eslava & Pahuja, supra note 25, at 196 (citing Martti Koskenniemi, Histories of International Law: Dealing with Eurocentrism, 19 J. of the Max-Planck Inst. for Eur. Legal Hist.152, 155 (2011).

41 Matua, supra note 4, at 850.

42 Id. Yet another example: a TWAIL lens exposes the United States’ possessions over Puerto Rico and the Philippines as an exercise in imperialism, not as a type of “democratic tutelage.” Gathii, supra note 3, at 1613.

43 Gathii, supra note 3, at 1632 (citing Ratna Kapur, Gender, Alterity and Human Rights: Freedom in a Fishbowl 63, 65–66 (2020)).

44 Gordon, supra note 8, at 830.

45 Id.; See also Michael A. Peters, Why Is My Curriculum White? 47 Educ. Philosophy and Theory 641, 643 (2015) (noting that race is “an ideologically constructed social phenomenon … that empowers people racialized as White.”).

46 Gordon, supra note 8, at 830.

47 Id.

48 Id.

49 Achiume & Carbado, supra note 4, at 1489.

50 Matua, supra note 4, at 846.

51 Achiume & Carbado, supra note 4, at 1468 (citing Antony Anghie, Imperialism, Sovereignty, and the Making of International Law at 32–100 (2005)).

52 Gevers, supra note 6, at 1,656.

53 Id. at 1,666 (emphasis added).

54 Id. at 1672.

55 Al Attar, International Legal Pedagogy, supra note 5, at 203. In case there is any doubt about racism within these institutions, Larry Summer, former chief economist at the World Bank, claimed several African countries were underpopulated and under polluted and “the economic logic behind dumpling a load of toxic waste in the lowest-wage country is impeccable and we should face up to that.” Id.

56 Matua, supra note 29, at 34; UN Structure—Security Council, United Nations, www.un.org/en/model-united-nations/security-council; UN Structure—General Assembly, United Nations, www.un.org/en/model-united-nations/general-assembly; see also Chesterman, supra note 35, at 945 (noting that most Asian and African states did not participate in the negotiation of agreements that define the modern international order).

57 Sujith Xavier et al., Placing TWAIL Scholarship and Praxis: Introduction to the Special Issue of the Windsor Yearbook of Access to Justice, 33 Windsor Y.B. Access Just. v, vii (2016).

58 Id.

59 See e.g., Ntina Tzouvala, Capitalism as Civilisation: A History of International Law 83 (2020).

60 Natsu Taylor Saito, Settler Colonialism, Race, and the Law: Why Structural Racism Persists 2 (2020).

61 Id. at 44 (quoting Antony Anghie, Imperialism, Sovereignty and the Making of International Law 4 (2007)). Saito draws a distinction between external colonialism and settler colonialism. In the former, the colonizers’ goals are to extract wealth, labor, and resources from the colony while also securing a captive market, but the colonizers themselves intend to return home. In the latter, settler colonists intend to remain in the colony, making it their own. Saito argues that “we live in a society whose most fundamental relationships have been, and largely continue to be, defined by the settlers’ goals of occupying the land, controlling its natural resources, rendering it profitable, and maintaining a social order of their own priorities” and “people of color have been racialized in ways that facilitate strategies intended to eliminate them, physically and conceptually, to exploit their labor, to contain and control them, and to force them into an assimilationist paradigm.” Id. at 51–54.

62 Natarajan, supra note 2, at 8; Xavier supra note 57, at vi.

63 Matua, supra note 29, at 31.

64 Heidi Frostestad Kuehl & Megan A. O’Brien, International Legal Research in a Global Community 10 (2018).

65 Statute of the International Court of Justice, Jun. 26, 1945, art. 38(1), 59 Stat. 1031.

66 Al Attar, supra note 11; Anghie supra note 11.

67 Helmersen, supra note 17.

68 Emtseva, supra note 10, at 757–58.

69 Paulo Freire, The Pedagogy of the Oppressed, 71 (1972).

70 Id. at 57–58.

71 al Attar & Tava, supra note 22, at 9.

72 Jonathan Cope, Information Literacy as Social Power, in Critical Library Instruction: Theories & Methods 13 (Maria T. Accardi et al. eds., 2010).

73 Maura Seale, The Neoliberal Library, in Information Literacy and Social Justice 39, 41 (Lua Gregory & Shana Higgins eds., 2013).

74 Id.

75 Id. at 42.

76 Cope, supra note 72, at 25.

77 Kathleen D. Fletcher, Casebooks, Bias, and Information Literacy—Do Law Librarians Have a Duty?, 40 Legal Ref. Servs. Q. 184 (2021).

78 See Yasmin Sokkar Harker, Critical Legal Information Literacy: Legal Information as a Social Construct, in Information Literacy and Social Justice 205, 207 (Lua Gregory & Shana Higgins eds., 2013).

79 Id. at 209.

80 Barbara Bintliff examined the importance of context and paradigms in her article, Context and Legal Research, explaining that a word is spoken with an intended context which may or may not match the context within which the word is heard or read, depending on the listener’s own experiences and circumstances. “Without context, the parties do not have a ground for common understanding. In a shared context, both speaker and listener can relate to the circumstances and give common meaning to the word. If they are not within the same context, if they are not speaking about the same thing, they are not communicating.” Barbara Bintliff, Context and Legal Research, 99 Law Libr. J. 249, 253 (2007).

81 Richard Delgado & Jean Stefancic, Why Do We Ask the Same Questions? The Triple Helix Dilemma Revisited, 99 Law Libr. J. 307, 318 (2007).

82 Sidhu, supra note 31; Anghie, supra note 31; Chimni supra note 31.

83 Anghie, supra note 11.

84 Al Attar & Tava, supra note 22, at 21; Chimni, supra note 16, at 2. Chimni also notes that international law “writes the history of international law as a narrative of progress,” a narrative that largely dismisses the suffering of colonized peoples and the toll colonization took on their societies. Id.

85 This is not to say that a typical course on FCIL research dismisses or neglects examination of national interests. But a more critical approach would examine what informs those national interests—which groups within the nation-state (including corporate interests) influence decision making, and how politics, economics, culture, and society shape national interests?

86 As al Attar and Taya write, “Purported apoliticism produces an international legal corpus alienated from its origins and assimilative aims.” Al Attar & Tava, supra note 22, at 22.

87 Chimni, supra note 16, at 11.

88 Yasmin Sokkar Harker, “Information Is Cheap, but Meaning Is Expensive”: Building Analytical Skills into Legal Research Instruction, 105 Law. Libr. J. 79, 89 (2013) (discussing the importance of metacognition in developing analytical skills).

89 Paul Callister, Time to Blossom: An Inquiry into Bloom’s Taxonomy as a Hierarchy and Means for Teaching Legal Research Skills, 102 Law Libr. J. 191 (2010).

90 Callister’s taxonomy is an adaptation of Bloom’s 1956 Taxonomy of Educational Objectives which provided a pedagogical structure for progressively ordering types of learning. Id. at 197.

91 Id. at 199–212.

92 Id. at 199.

93 Id. at 200.

94 Even concepts such as time and space can be characterized as social constructs. The Māori word for time and space is the same, and other indigenous languages “have no related word for either space or time, but instead a series of precise terms for parts of these ideas, or for relationships between the ideas and something else in the environment.” Linda Tuhiwai Smith, Decolonizing Methodologies: Research and Indigenous Peoples 52 (2d ed. 2012).

95 Indigenous Law Portal, LLMC Digital, https://llmc.com/Indigenous/Home.aspx.

96 See generally Tuhiwai Smith, supra note 94.

97 Callister, supra note 89, at 205 (quoting 1 Oxford English Dictionary 433 (2d ed. 1989).

98 Id. at 208.

99 Id.

100 Sokkar Harker, supra note 88, at 92.

101 Steve N. Barkan, Deconstructing Legal Research: A Law Librarian’s Commentary on Critical Legal Studies, 79 Law. Libr. J. 617, 625 (1987) (quoting Kairys, Legal Reasoning in The Politics of Law; A Progressive Critique 17 (D. Kairys ed., 1982)).

102 Penelope E. Andrews, Making Toom for Critical Race Theory in International Law: Some Practical Pointers, 45 Vill. L. Rev. 855, 879 (2000).

103 Vienna Convention on the Law of Treaties art.2(1)(a), May 23, 1969, 1155 U.N.T.S. 331.

104 See generally Frostestad Kuehl & O’Brien, supra note 64, at 15–59.

105 Vienna Convention on the Law of Treaties, supra note 103 art. 32.

106 Chimni, supra note 16, at 12.

107 Id. at 12–13.

108 Georg Forji Amin, All That Glitters Is Not Always Gold or Silver: Typical Bilateral Investment Treaties (BITs) Clauses as Peril to Third World Economic Sovereignty, 6 Athens J. of L. 229, 301 (2020) (“consenting to [BITs] is tantamount to developing countries undermining the independence, sovereignty, and control that they have historically fought so hard to protect.”)

109 For example, bilateral investment treaties are derided for their negative environmental impacts by constraining states’ abilities to switch and divest from fossil fuels. See, e.g. How Some International Treaties Threaten the Environment, The Economist, Oct. 2020.

110 As al Attar writes, interdisciplinary approaches to international law expose its shortcomings. For example, al Attar notes that “only through a feminist lens [can we] appreciate why we should treat sexual violence in a time of war as a crime against humanity” and it is “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.” Al Attar, Subverting Racism, supra note 5.

111 Sokkar Harker, supra note 88, at 89 (quoting John H. Flavell et al., Cognitive Development 164 (4th ed. 2002).

112 Callister, supra note 89, at 210.

113 Id. at 208.

114 Freire, supra note 69, at 70–71.

115 Sokkar Harker, supra note 88, at 92–93.

116 As Moshen al Attar points out, much of TWAIL scholarship remains on the periphery of international legal scholarship and is often published in journals that are inaccessible to researchers. Al Attar, International Legal Pedagogy, supra note 5, at 183.

117 About, Afronomicslaw, www.afronomicslaw.org/index.php/about.

118 Founding Statement, Third World Approaches to International Law Review (TWAILR), https://twailr.com/about/founding-statement/.

119 James Baldwin, A Talk to Teachers, Oct. 16, 1963, available at www.zinnedproject.org/materials/baldwin-talk-to-teachers.

120 Chimi, supra note 31, at 40–41.