Studying Race in International Law Scholarship Using a Social Science Approach
This Essay takes up Abebe, Chilton, and Ginsburg’s invitation to use a social science approach to establish or ascertain some facts about international law scholarship in the United States. The specific research question that this Essay seeks to answer is to what extent scholarship has addressed international law’s historical and continuing complicity in producing racial inequality and hierarchy, including slavery, as well as the subjugation and domination of the peoples of the First Nations. To answer this question, this Essay uses the content published in the American Journal of International Law (AJIL) from when it was first published in 1907 to May 2021. It also uses the content published in its sister publication AJIL Unbound from when it was first published in 2014 to May 2021. The most significant finding of this Essay is that only 64, or 1.25%, of 5,109 AJIL documents substantially engaged with race in the body of their texts. In AJIL Unbound, only 11, or 1.94%, of the 568 documents substantially engaged with race in the bodies of their text.
To account for the extremely low number of documents substantially engaging with race in the pages of the leading international law journal, I advance four hypotheses. First, that this absence is a reflection of the conscious exclusion of African Americans in the American Society of International Law in the first six decades of its existence, as the 2020 Richardson Report found. Second, it is the result of the stringent scrutiny race scholarship in international law has faced in AJIL and AJIL Unbound. Third, that the big or defining debates about international law in the United States have focused on issues other than race, and fourth that color-blindness has been the default view of American international law scholarship as represented in the journal.
Ultimately, the point of this Essay is threefold. First, to show that the social science approach that Abebe, Chilton, and Ginsburg advance can be useful to answer questions that critical scholars like myself are interested in. Second, that when this social science approach is applied to answer questions like the one pursued in this Essay the distinction between the neutrality of the scientific methodology of this social scientific approach, on the one hand, and the normativity of critical approaches that Abebe, Chilton, and Ginsburg argue characterizes other approaches, on the other, falls apart. Third, this Essay shows that there is still ample scope for more international law scholarship on race that needs to be taken up not only by scholars of color but by all scholars of international law.
- I. Introduction
- II. AJIL Content-Analysis Methodology and Results
- III. Explaining the Results
- A. Hypothesis One: Conscious Exclusion of African Americans Until Recently
- B. Hypothesis Two: Exclusion of Critical Scholarship Including that Relating to Race
- C. Hypothesis Three: The Big or Defining Debates About International Law in the United States Have Focused on Issues Other than Race
- D. Hypothesis Four: Color-Blindness Has Been the Default Mode of International Legal Scholarship
- IV. Conclusion
This Essay sets out to determine to what extent scholarship has addressed international law’s historical and continuing complicity in producing racial inequality and hierarchy, including slavery, as well as the subjugation and domination of the peoples of the First Nations. To answer this question, this Essay uses the content published in the American Journal of International Law (AJIL) from its inception in 1907 through 2021, as well as in AJIL Unbound, its online companion, from its first publication in 2014 through 2021.1
AJIL was first published in 1907, whereas AJIL Unbound was first published in 2014.
See, e.g., Christiane Wilke, Reconsecrating the Temple of Justice: Invocations of Civilization and Humanity in the Nuremberg Justice Case, 24 Can. J.L. & Soc’y 181 (2009).
Benjamin Allen Coates, Legalist Empire: International Law and American Foreign Relations in the Early Twentieth Century 83 (2016).
Id. at 43.
Id. at 1.
Carl Landauer, The Ambivalence of Power: Launching the American Journal of International Law in an Era of Empire and Globalization, 20 Leiden J. Int’l L. 325, 328 (2007).
Coates, supra note 3, at 3. Coates concludes that lawyers were therefore “ideological actors as much as technical advisers.” Id. at 180. See D.J. Bederman, Appraising a Century of Scholarship in the American Journal of International Law, 100 Am. J. Int’l L. 20, 62 (2006) (“American international lawyers, speaking through AJIL, have advanced U.S. policy initiatives, doctrines and positions even while vehemently disagreeing with some. Aside from these specific situations, these writers have tended (although by no means uniformly…) to believe that the project of international law is a worthwhile one that holds promise for world order.”).
To emphasize, I am interested in whether AJIL and AJIL Unbound have published scholarship that critically engages with the racist and imperial structures of international law that justified slavery, colonialism, and empire. I am also interested in examining AJIL’s role in constructing and perpetuating racially exclusionary discourses.8
See, e.g., Wilke, supra note 2, at 181. In this article, Wilke shows that “the 1918–1947 volumes of the American Journal of International Law (AJIL), published by the American Society of International Law, reveal that the concept of civilization was frequently used in the period following the end of World War I, declined in popularity at the end of the 1920s, and experienced a remarkable renaissance in the decade between 1938 and 1947.” Id. at 187. The premise in the article is that the “standard of civilization” that was “dominant in late-nineteenth- and early-twentieth century international law . . . [was] an expression of the idea that international law is a body of norms for civilized states only.” Id. at 186. For another analysis of how imperialism was redefined as civilization, see Mohammad Shahabuddin, The ‘Standard of Civilization’ in International Kaw: Intellectual Perspectives from Pre-War Japan, 32 Leiden J. Int’l L. 13 (2019); Antony Anghie, Imperialism, Sovereignty and the Making of International Law 67, 84–86 (2004) (noting that independent non-European states like Japan could be brought into the realm of international law if they met the “requirements of the standard of civilization of, and being officially recognized by, European states, as proper members of the family of nations” and discussing how these non-European societies were required to meet the standard of civilization). This standard of civilization shifted in the nineteenth century. In the first half of the nineteenth century, the criteria included Christianity. In the second half, it was predicated on “European culture and institutions—in particular, the ability to furnish Europeans with legal, economic, and later, political institutions to which they had become accustomed.” Rose Parfitt, Empire des Nègres Blancs: The Hybridity of International Personality and the Abyssinia Crisis of 1935-36, 24 Leiden J. Int’l L. 849, 858 (2011).
Mohsen al Attar, Subverting Racism in / Through International Law Scholarship, Opinio Juris (Mar. 3, 2021), https://perma.cc/M9KT-N3Q9;see also Mohsen al Attar, “I Can’t Breathe”: Confronting the Racism of International Law, Afronomicslaw (Oct. 2, 2020), https://perma.cc/6HAK-GLQB.
Further, al Attar argues that “[n]on-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.” al Attar, Subverting Racism in / Through International Law Scholarship, supra note 9.
The results of my empirical analysis showed that only 64, or 1.25%, of 5,109 AJIL documents substantially engaged with race in the body of their texts. In AJIL Unbound, only 11, or 1.94%, of the 568 documents substantially engaged with race in the bodies of their text.
To explain the extremely little content published in AJIL and AJIL Unbound over 100 years addressing international law’s historical and continuing complicity in producing racial inequality and hierarchy, including slavery, as well as the subjugation and domination of the peoples of the First Nations, this Essay advances four hypotheses. First, this absence is a reflection of the conscious exclusion of African Americans in the American Society of International Law in the first six decades of its existence, as the 2020 Richardson Report found.11
Am. Soc’y Int’l L., The Richardson Report, Final Report from the ASIL Ad Hoc Committee Investigating Possible Exclusion or Discouragement of Minority Membership or Participation by the Society During Its First Six Decades (2020) [hereinafter The Richardson Report]. This report was drafted by an ad hoc committee appointed pursuant to American Society of International Law Executive Council Resolution of 4th April 2018. Its mandate was to investigate possible exclusion or discouragement of minority membership or participation in the Society during its first six decades. The report was unanimously adopted by the ASIL Executive Council in its meeting on April 2, 2020.
This Essay proceeds as follows. In Section II, I outline the methodology I followed in gathering the data. The third section of the Essay is my ongoing effort to account for the paucity of scholarship centering race in AJIL and AJIL Unbound.
In order to determine an answer to my question—whether scholarship that probes the racist and imperial underpinnings of international law, as well as the racial hierarchies upon which international law was constructed, has been published in AJIL and AJIL Unbound—my methodology was as follows. I began by establishing whether there was such content in AJIL and AJIL Unbound. To do so, I searched the content of AJIL and AJIL Unbound using HeinOnline’s Law Journal Library.12
HeinOnline’s Law Journal Library is available to subscribers through the HeinOnline platform. A description of the content is available at https://perma.cc/Y2GH-LP8S.
See American Journal of International Law, Cambridge Core, https://perma.cc/5ANB-SDPU;AJIL Unbound, Cambridge Core, https://perma.cc/92S4-Z553.
To determine whether the content published in AJIL and AJIL Unbound has probed the racist and imperial underpinnings of international law, I undertook the following steps. First, I conducted an Advanced Search in the HeinOnline Law Journal Library using the search string “rac* OR anti-racis* OR antiracis*” and limiting my results to documents in AJIL and AJIL Unbound. This search was designed to retrieve all documents in AJIL and AJIL Unbound that contained any forms of the word “race,” or any of the words “antiracist,” “antiracism,” “anti-racist,” or “anti-racism.”14
I restrict my analysis to race, rather than to terms such as imperialism and colonialism because my central inquiry relates to establishing if there has been blindness to race and its central role in shaping international law and justifying other regimes of subordinating non-white peoples including slavery and colonialism in the scholarship published in AJIL and AJIL Unbound.
“Articles” includes “Lead Articles,” “Notes” includes “Contemporary Practice of the United States Relating to International Law,” “Comments” includes “Editorial Comments,” and “Reviews” includes “Book Reviews.”
The AJIL and AJIL Unbound content omitted in my analysis, such as Miscellaneous items, Tables of Contents, and Legislation, does not usually include commentary and is included in AJIL primarily for informational purposes. The content was excluded here since it did not provide analysis that would contribute to establishing the answer to my primary query in this Article—namely, whether the content published in AJIL and AJIL Unbound has probed the racist underpinnings of international law, as well as the racial hierarchies upon which international law was constructed.
Next, I examined each of these 1,656 documents individually to determine which ones substantially probed the racist and imperial underpinnings of international law, as well as the racial hierarchies upon which international law was constructed.17
Because there is a two-year embargo on the full text of the AJIL in HeinOnline, the full texts of the most recent documents included in the set were examined in Westlaw.
To comprehensively assess which of the documents engaged in a substantial analysis of the racist and imperial underpinnings of international law, I also identified documents that (a) mentioned “race” as understood to refer to ethnicity, identity, color or national or ethnic origin; (b) referred to “race” in a boilerplate/statutory/general language form or merely in a list, i.e., these documents used “race” without referring to race, color, or national or ethnic origin; (c) used “race” in a quotation, citation, or footnote; (d) used “race” sporadically or in a one-off manner, i.e., “race” was mentioned only very occasionally, and it was not the primary focus of analysis; and (e) included “race” in the titles or subtitles of the documents.
To continue the analysis, I determined the total number of AJIL and AJIL Unbound documents in HeinOnline by conducting an Advanced Search in the Law Journal Library using “*” as the search term and restricting the search to AJIL and AJIL Unbound. I then limited the search results to the same section types included in the relevant sample set as described above, which yielded a total of 5,677 documents. For AJIL, the search produced a total of 5,109 documents. For AJIL Unbound, there was a total of 568 documents.18
When “*” is used as a search term without limiting the results to certain section types, then 7,535 results appear for AJIL, and 571 for AJIL Unbound. However, to ensure a proper comparison with the documents individually reviewed, these baseline totals were limited to Articles, Comments, Notes, Reviews, and Editorials. Thus, for the purposes of this analysis, there were 5,109 total documents in AJIL, and 568 documents in AJIL Unbound.
The data unequivocally shows that AJIL and AJIL Unbound have not frequently engaged with race. This is clearly illustrated by the finding that only 64, or 1.25%, of 5,109 AJIL documents substantially engaged with race in the body of their texts. Furthermore, of the 5,109 total documents in AJIL, 1,004, or 19.65%, incorporated the word “race.” Of those 1,004 documents, 489 of them, or 9.57% of all 5,109 documents, used “race” in a boilerplate, statutory, general, or list-embedded context. Moreover, 515, or 10.08%, of the 5,109 documents did not use “race” in a boilerplate, statutory, general, or list-embedded context. Finally, only 5, or 0.10%, of the 5,109 documents had “race” in their title.
Similarly, in AJIL Unbound, only 11, or 1.94%, of the 568 documents substantially engaged with race in the bodies of their text. Moreover, of the 568 documents published in AJIL Unbound, 60, or 10.56%, incorporated the word “race.” Of those 60 documents, 30 of them, or 5.28% of all 568 documents, used “race” in a boilerplate, statutory, general, or list-embedded context. Finally, only 2, or 0.35%, of the 568 documents had “race” in their title.
These results are presented in more detail in the following data tables (Tables 1, 2, and 3) and related charts (Charts 1 and 2). Appendix 1 lists all the AJIL documents that mentioned “race” in the bodies of their text, and Appendix 2 contains a full list of AJIL Unbound documents that mentioned “race” in their texts. In Appendix 3, Table 5 and Chart 3 analyze the documents listed in Appendices 1 and 2. Appendices are published separately on Chicago Unbound.




Table 3: List of AJIL documents substantially engaging with “race” (1907–May 2021)
TOP
1 | |
Title |
Protection of Minorities by the League of Nations |
Citation |
17 Am. J. Int’l L. 641 (1923) |
Author(s) |
Rosting, Helmer |
2 | |
Title |
Some Legal Aspects of the Japanese Question |
Citation |
17 Am. J. Int’l L. 31 (1923) |
Author(s) |
Buell, Raymond Leslie |
3 | |
Title |
The End of Dominion Status |
Citation |
38 Am. J. Int’l L. 34 (1944) |
Author(s) |
Scott, F.R. |
4 | |
Title |
Current Views of the Soviet Union of the International Organization of Security, Economic Cooperation and International Law: A Summary |
Citation |
39 Am. J. Int’l L. 450 (1945) |
Author(s) |
Prince, Charles |
5 | |
Title |
Book Review (reviewing Carey McWilliams, Prejudice: Japanese-Americans, Symbol of Racial Intolerance (1994)) |
Citation |
39 Am. J. Int’l L. 634 (1945) |
Author(s) |
Das, Taraknath |
6 | |
Title |
Denazification Law and Procedure |
Citation |
41 Am. J. Int’l L. 807 (1947) |
Author(s) |
Plischke, Elmer |
7 | |
Title |
The United Nations Conference on Freedom of Information and the Movement against International Propaganda |
Citation |
43 Am. J. Int’l L. 73 (1949) |
Author(s) |
Whitton, John B. |
8 | |
Title |
An “Act for the Protection of Peace” in Bulgaria (current notes) |
Citation |
a) 45 Am. J. Int’l L. 353 (1951); b) id. at 357 |
Author(s) |
Nicoloff, Antoni M |
9 | |
Title |
National Courts and Human Rights—The Fujii Case |
Citation |
45 Am. J. Int’l L. 62 (1951) |
Author(s) |
Wright, Quincy |
10 | |
Title |
The Trieste Settlement and Human Rights (notes and comments) |
Citation |
49 Am. J. Int’l L. 240 (1955) |
Author(s) |
Schwelb, Egon |
11 | |
Title |
International Law and Some Recent Developments in the Commonwealth (editorial comments) |
Citation |
55 Am. J. Int’l L. 440 (1961) |
Author(s) |
Wilson, Robert R. |
12 | |
Title |
The United Nations’ Double Standard on Human Rights Complaints (notes and comments) |
Citation |
60 Am. J. Int’l L. 792 (1966) |
Author(s) |
Carey, John |
13 | |
Title |
Civil and Political Rights: The International Measures of Implementation |
Citation |
62 Am. J. Int’l L. 827 (1968) |
Author(s) |
Schwelb, Egon |
14 | |
Title |
Contemporary Practice of the United States Relating to International Law: South West Africa (Namibia) |
Citation |
63 Am. J. Int’l L. 320 (1969) |
Author(s) |
Denny, Brewster C. |
15 | |
Title |
Contemporary Practice of the United States Relating to International Law: Summary of Developments During 23d Session of the U.N. General Assembly |
Citation |
63 Am. J. Int’l L. 569 (1969) |
Author(s) |
Gibson, Stephen L. ed. |
16 | |
Title |
64th Annual Meeting of the American Society of International Law (notes and comments) |
Citation |
64 Am. J. Int’l L. 623 (1970) |
Author(s) |
Finch, Eleanor H. |
17 | |
Title |
The International Court of Justice and the Human Rights Clauses of the Charter |
Citation |
66 Am. J. Int’l L. 337 (1972) |
Author(s) |
Schwelb, Egon |
I18 | |
Title |
The 1974 Diplomatic Conference on Humanitarian Law: Some Observations |
Citation |
69 Am. J. Int’l L. 77 (1975) |
Author(s) |
Forsythe, David P. |
19 | |
Title |
Book Review, (reviewing Edward Weisband, Resignation in Protest: Political and Ethical Choices Between Loyalty to Team and Loyalty to Conscience in American Public Life (1975)) |
Citation |
71 Am. J. Int’l L. 160 (1977) |
Author(s) |
Rusk, Dean |
20 | |
Title |
Constitutive Questions in the Negotiations for Namibian Independence |
Citation |
78 Am. J. Int’l L. 76 (1984) |
Author(s) |
Richardson III, Henry J. |
21 | |
Title |
The Meaning and Reach of the International Convention on the Elimination of All Forms of Racial Discrimination |
Citation |
79 Am. J. Int’l L. 283 (1985) |
Author(s) |
Meron, Theodor |
22 | |
Title |
Federalism and the International Legal Order: Recent Developments in Australia |
Citation |
79 Am. J. Int’l L. 622 (1985) |
Author(s) |
Byrnes, Andrew & Charlesworth, Hilary |
23 | |
Title |
Current Developments: First Session of the UN Committee on Economic, Social and Cultural Rights |
Citation |
81 Am. J. Int’l L. 747 (1987) |
Author(s) |
Alson, Philip & Simma, Bruno |
24 | |
Title |
The Meaning of People in the African Charter on Human and Peoples’ Rights (notes and comments) |
Citation |
82 Am. J. Int’l L. 80 (1988) |
Author(s) |
Kiwanuka, Richard N. |
25 | |
Title |
Threats of Force |
Citation |
82 Am. J. Int’l L. 239 (1988) |
Author(s) |
Sadurska, Romana |
26 | |
Title |
Agora: Is the ASIL Policy on Divestment in Violation of International Law? Further Observations |
Citation |
82 Am. J. Int’l L. 311 (1988) |
Author(s) |
Barrie, George N. & Szasz, Paul C. |
27 | |
Title |
International Law in the Third Reich |
Citation |
84 Am. J. Int’l L. 661 (1990 ) |
Author(s) |
Vagts, Detlev F. |
28 | |
Title |
Feminist Approaches to International Law |
Citation |
85 Am. J. Int’l L. 613 (1991) |
Author(s) |
Charlesworth, Hilary, Chinkin, Christine & Wright, Shelley |
29 | |
Title |
The Emerging Right to Democratic Governance |
Citation |
86 Am. J. Int’l L. 46 (1992) |
Author(s) |
Franck, Thomas M. |
30 | |
Title |
Book Review (reviewing Patrick Thornberry, International Law and the Rights of Minorities (1993)) |
Citation |
87 Am. J. Int’l L. 680 (1993) |
Author(s) |
Hannum, Hurst |
31 | |
Title |
The Gulf Crisis and African-American Interests under International Law |
Citation |
87 Am. J. Int’l L. 42 (1993) |
Author(s) |
Richardson III, Henry J. |
32 | |
Title |
Clan and Superclan: Loyalty, Identity and Community in Law and Practice |
Citation |
90 Am. J. Int’l L. 359 (1996) |
Author(s) |
Franck, Thomas M. |
33 | |
Title |
Indigenous Peoples in International Law: A Constructivist Approach to the Asian Controversy |
Citation |
92 Am. J. Int’l L. 414 (1998) |
Author(s) |
Kingsbury, Benedict |
34 | |
Title |
Contemporary Practice of the United States Relating to International Law (General International and U.S. Foreign Relations Law): Interpretation of U.S. Constitution by Reference to International Law |
Citation |
97 Am. J. Int’l L. 683 (2003) |
Author(s) |
Murphy, Sean D. ed. |
35 | |
Title |
Book Review (reviewing Karen Knop, Diversity and Self-Determination in International Law (2002)) |
Citation |
98 Am. J. Int’l L. 229 (2004) |
Author(s) |
Fox, Gregory H. |
36 | |
Title |
Normative Hierarchy in International Law |
Citation |
100 Am. J. Int’l L. 291 (2006) |
Author(s) |
Shelton, Dinah |
37 | |
Title |
Book Review (reviewing Ian Clark, International Legitimacy and World Society (2007)) |
Citation |
102 Am. J. Int’l L. 926 (2008) |
Author(s) |
Davis, Benjamin G. |
38 | |
Title |
Book Review (reviewing Peter J. Spiro, Beyond Citizenship: American Citizenship After Globalization (2008)) |
Citation |
103 Am. J. Int’l L. 180 (2009) |
Author(s) |
Rodríguez, Christina M. |
39 | |
Title |
Contemporary Practice of the United States Relating to International Law (International Human Rights and Humanitarian Law): United States Boycotts Durban Review Conference, Will Seek Election to Human Rights Council |
Citation |
103 Am. J. Int’l L. 355 (2009) |
Author(s) |
Crook, John R. |
40 | |
Title |
The Pillar of Glass: Human Rights in the Development Operations of the United Nations |
Citation |
103 Am. J. Int’l L. 446 (2009) |
Author(s) |
Darrow, Mac & Arbour, Louise |
41 | |
Title |
Current Developments: The 2008 Judicial Activity of the International Court of Justice |
Citation |
103 Am. J. Int’l L. 527 (2009) |
Author(s) |
Mathias, D. Stephen |
42 | |
Title |
Contemporary Practice of the United States Relating to International Law (International Human Rights and Humanitarian Law): UN Human Rights Officials Berate U.S. Human Rights Policies and Practices |
Citation |
103 Am. J. Int’l L. 594 (2009) |
Author(s) |
Crook, John R. |
43 | |
Title |
Book Review (reviewing Daniel Moeckli, Human Rights and Non-discrimination in the ‘War on Terror’ (2008)) |
Citation |
103 Am. J. Int’l L. 635 (2009) |
Author(s) |
Shah, Sikander A. |
44 | |
Title |
Book Review (reviewing Thomas Buergenthal, A Lucky Child: A Memoir of Surviving Auschwitz as a Young Boy (2010)) |
Citation |
104 Am. J. Int’l L. 307 (2010) |
Author(s) |
Damrosch, Lori Fisler |
45 | |
Title |
Book Review (reviewing Henry J. Richardson III, The Origins of African-American Interests in International Law (2008)) |
Citation |
104 Am. J. Int’l L. 313 (2010) |
Author(s) |
Gordon, Ruth |
46 | |
Title |
Protection of Indigenous Peoples on the African Continent: Concepts, Position Seeking, and the Interaction of Legal Systems |
Citation |
104 Am. J. Int’l L. 29 (2010) |
Author(s) |
van Genugten, Willem |
47 | |
Title |
Book Review (reviewing Jeremy I. Levitt, Africa: Mapping New Boundaries in International Law (2008)) |
Citation |
104 Am. J. Int’l L. 532 (2010) |
Author(s) |
Mutua, Makau |
48 | |
Title |
A New International Law of Citizenship |
Citation |
105 Am. J. Int’l L. 694 (2011) |
Author(s) |
Spiro, Peter J. |
49 | |
Title |
Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v. Russian Federation) |
Citation |
105 Am. J. Int’l L. 747 (2011) |
Author(s) |
Szewczyk, Bart M. J. |
50 | |
Title |
Genocide: A Normative Account |
Citation |
105 Am. J. Int’l L. 852 (2011) |
Author(s) |
Greenawalt, Alexander K.A. |
51 | |
Title |
Current Developments: The 2011 Judicial Activity of the International Court of Justice |
Citation |
106 Am. J. Int’l L. 586 (2012) |
Author(s) |
Cogan, Jacob Katz |
52 | |
Title |
Book Review (reviewing Sundhya Pahuja, Decolonizing International Law: Development, Economic Growth and the Politics of Universality (2011)) |
Citation |
107 Am. J. Int’l L. 494 (2013) |
Author(s) |
Gathii, James Thuo |
53 | |
Title |
Book Review (reviewing Ryan Goodman & Derek Jinks, Socializing States: Promoting Human Rights through International Law (2013)) |
Citation |
108 Am. J. Int’l L. 576 (2014) |
Author(s) |
Sloss, David |
54 | |
Title |
Exploitation Creep and the Unmaking of Human Trafficking Law |
Citation |
108 Am. J. Int’l L. 609 (2014) |
Author(s) |
Chuang, Janie A. |
55 | |
Title |
The Creation of Tribunals |
Citation |
110 Am. J. Int’l L. 173 (2016) |
Author(s) |
Matheson, Michael J. & Scheffer, David |
56 | |
Title |
The 2017 Judicial Activity of the International Court of Justice (notes and comments) |
Citation |
112 Am. J. Int’l L. 254 (2018) |
Author(s) |
Gray, Christine |
57 | |
Title |
Book Review (reviewing Oona A. Hathaway & Scott J. Shapiro, The Internationalists: How a Radical Plan to Outlaw War Remade the World (2017)) |
Citation |
112 Am. J. Int’l L. 330 (2018) |
Author(s) |
Bradley, Anna Spain |
58 | |
Title |
Human Rights in War: On the Entangled Foundations of the 1949 Geneva Conventions |
Citation |
112 Am. J. Int’l L. 553 (2018) |
Author(s) |
van Dijk, Boyd |
59 | |
Title |
Book Review (reviewing David L. Sloss, The Death of Treaty Supremacy: An Invisible Constitutional Change (2016)) |
Citation |
112 Am. J. Int’l L. 779 (2018) |
Author(s) |
Stewart, David P. |
60 | |
Title |
Contemporary Practice of the United States Relating to International Law (General International and U.S. Foreign Relations Law): Department of Justice Declines to Defend the Constitutionality of a Statute Criminalizing Female Genital Mutilation |
Citation |
114 Am. J. Int’l L. 289 (2020) |
Author(s) |
Galbraith, Jean |
61 | |
Title |
The Proof Is in the Process: Self-Reporting under International Human Rights Treaties |
Citation |
114 Am. J. Int’l L. 1 (2020) |
Author(s) |
Creamer, Cosette D. & Simmons, Beth A. |
62 | |
Title |
The Pandemic Paradox in International Law |
Citation |
114 Am. J. Int’l L. 598 (2020) |
Author(s) |
Danchin, Peter G., Farrall, Jeremy, Rana, Shruti & Saunders, Imogen |
63 | |
Title |
The Limits of Human Rights Limits (reviewing Hurst Hannum, Rescuing Human Rights: A Radically Moderate Approach (2019)) |
Citation |
115 Am. J. Int’l L. 154 (2021) |
Author(s) |
Richardson III, Henry J. |
64 | |
Title |
Book Review (reviewing Bertrand G. Ramcharan, Modernizing the UN Human Rights System (2019) |
Citation |
115 Am. J. Int’l L. 171 (2021) |
Author(s) |
Chimni, B. S. |
Title |
Citation |
Author(s) |
|
---|---|---|---|
1 |
Protection of Minorities by the League of Nations |
17 Am. J. Int’l L. 641 (1923) |
Rosting, Helmer |
2 |
Some Legal Aspects of the Japanese Question |
17 Am. J. Int’l L. 31 (1923) |
Buell, Raymond Leslie |
3 |
The End of Dominion Status |
38 Am. J. Int’l L. 34 (1944) |
Scott, F.R. |
4 |
Current Views of the Soviet Union of the International Organization of Security, Economic Cooperation and International Law: A Summary |
39 Am. J. Int’l L. 450 (1945) |
Prince, Charles |
5 |
Book Review (reviewing Carey McWilliams, Prejudice: Japanese-Americans, Symbol of Racial Intolerance (1994)) |
39 Am. J. Int’l L. 634 (1945) |
Das, Taraknath |
6 |
Denazification Law and Procedure |
41 Am. J. Int’l L. 807 (1947) |
Plischke, Elmer |
7 |
The United Nations Conference on Freedom of Information and the Movement against International Propaganda |
43 Am. J. Int’l L. 73 (1949) |
Whitton, John B. |
8 |
An “Act for the Protection of Peace” in Bulgaria (current notes) |
a) 45 Am. J. Int’l L. 353 (1951); b) id. at 357 |
Nicoloff, Antoni M |
9 |
National Courts and Human Rights—The Fujii Case |
45 Am. J. Int’l L. 62 (1951) |
Wright, Quincy |
10 |
The Trieste Settlement and Human Rights (notes and comments) |
49 Am. J. Int’l L. 240 (1955) |
Schwelb, Egon |
11 |
International Law and Some Recent Developments in the Commonwealth (editorial comments) |
55 Am. J. Int’l L. 440 (1961) |
Wilson, Robert R. |
12 |
The United Nations’ Double Standard on Human Rights Complaints (notes and comments) |
60 Am. J. Int’l L. 792 (1966) |
Carey, John |
13 |
Civil and Political Rights: The International Measures of Implementation |
62 Am. J. Int’l L. 827 (1968) |
Schwelb, Egon |
14 |
Contemporary Practice of the United States Relating to International Law: South West Africa (Namibia) |
63 Am. J. Int’l L. 320 (1969) |
Denny, Brewster C. |
15 |
Contemporary Practice of the United States Relating to International Law: Summary of Developments During 23d Session of the U.N. General Assembly |
63 Am. J. Int’l L. 569 (1969) |
Gibson, Stephen L. ed. |
16 |
64th Annual Meeting of the American Society of International Law (notes and comments) |
64 Am. J. Int’l L. 623 (1970) |
Finch, Eleanor H. |
17 |
The International Court of Justice and the Human Rights Clauses of the Charter |
66 Am. J. Int’l L. 337 (1972) |
Schwelb, Egon |
I18 |
The 1974 Diplomatic Conference on Humanitarian Law: Some Observations |
69 Am. J. Int’l L. 77 (1975) |
Forsythe, David P. |
19 |
Book Review, (reviewing Edward Weisband, Resignation in Protest: Political and Ethical Choices Between Loyalty to Team and Loyalty to Conscience in American Public Life (1975)) |
71 Am. J. Int’l L. 160 (1977) |
Rusk, Dean |
20 |
Constitutive Questions in the Negotiations for Namibian Independence |
78 Am. J. Int’l L. 76 (1984) |
Richardson III, Henry J. |
21 |
The Meaning and Reach of the International Convention on the Elimination of All Forms of Racial Discrimination |
79 Am. J. Int’l L. 283 (1985) |
Meron, Theodor |
22 |
Federalism and the International Legal Order: Recent Developments in Australia |
79 Am. J. Int’l L. 622 (1985) |
Byrnes, Andrew & Charlesworth, Hilary |
23 |
Current Developments: First Session of the UN Committee on Economic, Social and Cultural Rights |
81 Am. J. Int’l L. 747 (1987) |
Alson, Philip & Simma, Bruno |
24 |
The Meaning of People in the African Charter on Human and Peoples’ Rights (notes and comments) |
82 Am. J. Int’l L. 80 (1988) |
Kiwanuka, Richard N. |
25 |
Threats of Force |
82 Am. J. Int’l L. 239 (1988) |
Sadurska, Romana |
26 |
Agora: Is the ASIL Policy on Divestment in Violation of International Law? Further Observations |
82 Am. J. Int’l L. 311 (1988) |
Barrie, George N. & Szasz, Paul C. |
27 |
International Law in the Third Reich |
84 Am. J. Int’l L. 661 (1990 ) |
Vagts, Detlev F. |
28 |
Feminist Approaches to International Law |
85 Am. J. Int’l L. 613 (1991) |
Charlesworth, Hilary, Chinkin, Christine & Wright, Shelley |
29 |
The Emerging Right to Democratic Governance |
86 Am. J. Int’l L. 46 (1992) |
Franck, Thomas M. |
30 |
Book Review (reviewing Patrick Thornberry, International Law and the Rights of Minorities (1993)) |
87 Am. J. Int’l L. 680 (1993) |
Hannum, Hurst |
31 |
The Gulf Crisis and African-American Interests under International Law |
87 Am. J. Int’l L. 42 (1993) |
Richardson III, Henry J. |
32 |
Clan and Superclan: Loyalty, Identity and Community in Law and Practice |
90 Am. J. Int’l L. 359 (1996) |
Franck, Thomas M. |
33 |
Indigenous Peoples in International Law: A Constructivist Approach to the Asian Controversy |
92 Am. J. Int’l L. 414 (1998) |
Kingsbury, Benedict |
34 |
Contemporary Practice of the United States Relating to International Law (General International and U.S. Foreign Relations Law): Interpretation of U.S. Constitution by Reference to International Law |
97 Am. J. Int’l L. 683 (2003) |
Murphy, Sean D. ed. |
35 |
Book Review (reviewing Karen Knop, Diversity and Self-Determination in International Law (2002)) |
98 Am. J. Int’l L. 229 (2004) |
Fox, Gregory H. |
36 |
Normative Hierarchy in International Law |
100 Am. J. Int’l L. 291 (2006) |
Shelton, Dinah |
37 |
Book Review (reviewing Ian Clark, International Legitimacy and World Society (2007)) |
102 Am. J. Int’l L. 926 (2008) |
Davis, Benjamin G. |
38 |
Book Review (reviewing Peter J. Spiro, Beyond Citizenship: American Citizenship After Globalization (2008)) |
103 Am. J. Int’l L. 180 (2009) |
Rodríguez, Christina M. |
39 |
Contemporary Practice of the United States Relating to International Law (International Human Rights and Humanitarian Law): United States Boycotts Durban Review Conference, Will Seek Election to Human Rights Council |
103 Am. J. Int’l L. 355 (2009) |
Crook, John R. |
40 |
The Pillar of Glass: Human Rights in the Development Operations of the United Nations |
103 Am. J. Int’l L. 446 (2009) |
Darrow, Mac & Arbour, Louise |
41 |
Current Developments: The 2008 Judicial Activity of the International Court of Justice |
103 Am. J. Int’l L. 527 (2009) |
Mathias, D. Stephen |
42 |
Contemporary Practice of the United States Relating to International Law (International Human Rights and Humanitarian Law): UN Human Rights Officials Berate U.S. Human Rights Policies and Practices |
103 Am. J. Int’l L. 594 (2009) |
Crook, John R. |
43 |
Book Review (reviewing Daniel Moeckli, Human Rights and Non-discrimination in the ‘War on Terror’ (2008)) |
103 Am. J. Int’l L. 635 (2009) |
Shah, Sikander A. |
44 |
Book Review (reviewing Thomas Buergenthal, A Lucky Child: A Memoir of Surviving Auschwitz as a Young Boy (2010)) |
104 Am. J. Int’l L. 307 (2010) |
Damrosch, Lori Fisler |
45 |
Book Review (reviewing Henry J. Richardson III, The Origins of African-American Interests in International Law (2008)) |
104 Am. J. Int’l L. 313 (2010) |
Gordon, Ruth |
46 |
Protection of Indigenous Peoples on the African Continent: Concepts, Position Seeking, and the Interaction of Legal Systems |
104 Am. J. Int’l L. 29 (2010) |
van Genugten, Willem |
47 |
Book Review (reviewing Jeremy I. Levitt, Africa: Mapping New Boundaries in International Law (2008)) |
104 Am. J. Int’l L. 532 (2010) |
Mutua, Makau |
48 |
A New International Law of Citizenship |
105 Am. J. Int’l L. 694 (2011) |
Spiro, Peter J. |
49 |
Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v. Russian Federation) |
105 Am. J. Int’l L. 747 (2011) |
Szewczyk, Bart M. J. |
50 |
Genocide: A Normative Account |
105 Am. J. Int’l L. 852 (2011) |
Greenawalt, Alexander K.A. |
51 |
Current Developments: The 2011 Judicial Activity of the International Court of Justice |
106 Am. J. Int’l L. 586 (2012) |
Cogan, Jacob Katz |
52 |
Book Review (reviewing Sundhya Pahuja, Decolonizing International Law: Development, Economic Growth and the Politics of Universality (2011)) |
107 Am. J. Int’l L. 494 (2013) |
Gathii, James Thuo |
53 |
Book Review (reviewing Ryan Goodman & Derek Jinks, Socializing States: Promoting Human Rights through International Law (2013)) |
108 Am. J. Int’l L. 576 (2014) |
Sloss, David |
54 |
Exploitation Creep and the Unmaking of Human Trafficking Law |
108 Am. J. Int’l L. 609 (2014) |
Chuang, Janie A. |
55 |
The Creation of Tribunals |
110 Am. J. Int’l L. 173 (2016) |
Matheson, Michael J. & Scheffer, David |
56 |
The 2017 Judicial Activity of the International Court of Justice (notes and comments) |
112 Am. J. Int’l L. 254 (2018) |
Gray, Christine |
57 |
Book Review (reviewing Oona A. Hathaway & Scott J. Shapiro, The Internationalists: How a Radical Plan to Outlaw War Remade the World (2017)) |
112 Am. J. Int’l L. 330 (2018) |
Bradley, Anna Spain |
58 |
Human Rights in War: On the Entangled Foundations of the 1949 Geneva Conventions |
112 Am. J. Int’l L. 553 (2018) |
van Dijk, Boyd |
59 |
Book Review (reviewing David L. Sloss, The Death of Treaty Supremacy: An Invisible Constitutional Change (2016)) |
112 Am. J. Int’l L. 779 (2018) |
Stewart, David P. |
60 |
Contemporary Practice of the United States Relating to International Law (General International and U.S. Foreign Relations Law): Department of Justice Declines to Defend the Constitutionality of a Statute Criminalizing Female Genital Mutilation |
114 Am. J. Int’l L. 289 (2020) |
Galbraith, Jean |
61 |
The Proof Is in the Process: Self-Reporting under International Human Rights Treaties |
114 Am. J. Int’l L. 1 (2020) |
Creamer, Cosette D. & Simmons, Beth A. |
62 |
The Pandemic Paradox in International Law |
114 Am. J. Int’l L. 598 (2020) |
Danchin, Peter G., Farrall, Jeremy, Rana, Shruti & Saunders, Imogen |
63 |
The Limits of Human Rights Limits (reviewing Hurst Hannum, Rescuing Human Rights: A Radically Moderate Approach (2019)) |
115 Am. J. Int’l L. 154 (2021) |
Richardson III, Henry J. |
64 |
Book Review (reviewing Bertrand G. Ramcharan, Modernizing the UN Human Rights System (2019) |
115 Am. J. Int’l L. 171 (2021) |
Chimni, B. S. |
Table 4: List of AJIL Unbound documents substantially engaging with “race” (2014–May 2021)
TOP
S. No. |
1 |
Title |
A Crossroads in the Fight Against Human Trafficking? Let’s take the Structural Route: A Response to Janie Chuang Symposium: Janie A. Chuang, Exploitation Creep and the Unmaking of Human Trafficking Law |
Citation |
108 AJIL Unbound 272 (2014-2015) |
Author(s) |
Bravo, Karen E. |
S. No. |
2 |
Title |
Why Fighting Structural Inequalities Requires Institutionalizing Difference: A Response to Nienke Grossman Symposium on Nienke Grossman, Achieving Sex-Representative International Court Benches |
Citation |
110 AJIL Unbound 92 (2016-2017) |
Author(s) |
Torbisco-Casals, Neus |
S. No. |
3 |
Title |
Human Mobility and the Longue Duree: The Prehistory of Global Migration Law Symposium on Framing Global Migration Law - Part II |
Citation |
111 AJIL Unbound 136 (2017-2018) |
Author(s) |
Bhabha, Jacqueline |
S. No. |
4 |
Title |
Human Rights and the Future of Being Human Symposium on the Universal Declaration of Human Rights at Seventy |
Citation |
112 AJIL Unbound 324 (2018) |
Author(s) |
Huneeus, Alexandra |
S. No. |
5 |
Title |
Race and Rights in the Digital Age Symposium on the Universal Declaration of Human Rights at Seventy |
Citation |
112 AJIL Unbound 339 (2018) |
Author(s) |
Powell, Catherine |
S. No. |
6 |
Title |
Theorizing Emancipatory Transnational Futures of International Labor Law Symposium on Transnational Futures of International Labor Law |
Citation |
113 AJIL Unbound 390 (2019) |
Author(s) |
Blackett, Adelle |
S. No. |
7 |
Title |
Towards Global Governance: The Inadequacies of the UN Drug Control Regime Symposium on Drug Decriminalization, Legalization, and International Law |
Citation |
114 AJIL Unbound 291 (2020) |
Author(s) |
Eliason, Antonia & Howse, Robert |
S. No. |
8 |
Title |
Introduction to the Symposium on COVID-19, Global Mobility and International Law |
Citation |
114 AJIL Unbound 312 (2020) |
Author(s) |
Achiume, E. Tendayi, Gammeltoft-Hansen, Thomas & Spijkerboer, Thomas |
S. No. |
9 |
Title |
Fortress Europe, Global Migration & the Global Pandemic Symposium on COVID-19, Global Mobility and International Law |
Citation |
114 AJIL Unbound 342 (2020) |
Author(s) |
Reynolds, John |
S. No. |
10 |
Title |
“To Restore the Soul of America”: How Domestic Anti-Racism Might Fuel Global Anti-Racism Symposium on the Biden Administration and the International Legal Order: Essay |
Citation |
115 AJIL Unbound 63 (2021) |
Author(s) |
Lovelace, H. Timothy Jr. |
S. No. |
11 |
Title |
Introduction to the Symposium on the Biden Administration and the International Legal Order |
Citation |
115 AJIL Unbound 40 (2021) |
Author(s) |
Shaffer, Gregory & Sloss, David L. |
S. No. |
Title |
Citation |
Author(s) |
---|---|---|---|
1 |
A Crossroads in the Fight Against Human Trafficking? Let’s take the Structural Route: A Response to Janie Chuang Symposium: Janie A. Chuang, Exploitation Creep and the Unmaking of Human Trafficking Law |
108 AJIL Unbound 272 (2014-2015) |
Bravo, Karen E. |
2 |
Why Fighting Structural Inequalities Requires Institutionalizing Difference: A Response to Nienke Grossman Symposium on Nienke Grossman, Achieving Sex-Representative International Court Benches |
110 AJIL Unbound 92 (2016-2017) |
Torbisco-Casals, Neus |
3 |
Human Mobility and the Longue Duree: The Prehistory of Global Migration Law Symposium on Framing Global Migration Law - Part II |
111 AJIL Unbound 136 (2017-2018) |
Bhabha, Jacqueline |
4 |
Human Rights and the Future of Being Human Symposium on the Universal Declaration of Human Rights at Seventy |
112 AJIL Unbound 324 (2018) |
Huneeus, Alexandra |
5 |
Race and Rights in the Digital Age Symposium on the Universal Declaration of Human Rights at Seventy |
112 AJIL Unbound 339 (2018) |
Powell, Catherine |
6 |
Theorizing Emancipatory Transnational Futures of International Labor Law Symposium on Transnational Futures of International Labor Law |
113 AJIL Unbound 390 (2019) |
Blackett, Adelle |
7 |
Towards Global Governance: The Inadequacies of the UN Drug Control Regime Symposium on Drug Decriminalization, Legalization, and International Law |
114 AJIL Unbound 291 (2020) |
Eliason, Antonia & Howse, Robert |
8 |
Introduction to the Symposium on COVID-19, Global Mobility and International Law |
114 AJIL Unbound 312 (2020) |
Achiume, E. Tendayi, Gammeltoft-Hansen, Thomas & Spijkerboer, Thomas |
9 |
Fortress Europe, Global Migration & the Global Pandemic Symposium on COVID-19, Global Mobility and International Law |
114 AJIL Unbound 342 (2020) |
Reynolds, John |
10 |
“To Restore the Soul of America”: How Domestic Anti-Racism Might Fuel Global Anti-Racism Symposium on the Biden Administration and the International Legal Order: Essay |
115 AJIL Unbound 63 (2021) |
Lovelace, H. Timothy Jr. |
11 |
Introduction to the Symposium on the Biden Administration and the International Legal Order |
115 AJIL Unbound 40 (2021) |
Shaffer, Gregory & Sloss, David L. |
What explains the extremely low engagement with race as a theme in AJIL and AJIL Unbound? From AJIL’s founding in 1907 to May 2021, only 1.25% of its documents (64 out of 5,109) substantially engaged with race in the body of their text, and only 0.10% (5 out of 5,109) had race in their titles. Likewise, from AJIL Unbound’s establishment in 2014 to the beginning of 2021, only 1.94% of its documents (11 out of 568) substantially engaged with race in the body of their text, and only 0.35% (2 out of 568) had race in their titles. This is indicative of a silence that requires further exploration.
It is implausible and factually inaccurate to explain this silence as indicative of the irrelevance of race in international law. Bearing in mind that I use race to refer to relations of domination rather than personal prejudice, at least since the sixteenth century when Francisco de Vitoria wrote his treaties, international law has justified slavery, conquest, colonialism, commerce, and other forms of domination over non-European peoples by European peoples. As Third World Approaches to International Law (TWAIL) and Critical Race Theory (CRT) scholars have shown, international law legitimized colonial conquest along the axes of European/non-European, colonizer/colonized, civilized/uncivilized, and modernity/tradition.19
For a leading text demonstrating this, see Anghie, supra note 8.
imperial international law was constructed on the basis of White racial superiority—as rational stewards of the territories of non-Europeans—and on the basis of racist myths of indigenous savagery, primitivism, and pathology. Hence, just as slavery dehumanized Blacks as degenerate and outside the boundaries of humanity in the construction of the United States as a White racial state, European/White international law was constructed to relegate non-European peoples who were considered to live outside the bounds of humanity and therefore outside of sovereignty.20
20James Thuo Gathii, Writing Race and Identity in a Global Context: What CRT and TWAIL Can Learn from Each Other, 67 UCLA L. Rev. 1610, 1613 (2021).
TWAIL scholars argue that notwithstanding international law’s commitments to sovereign equality, human rights, and development, it carries within it the legacy of economic subordination and hierarchy established in prior eras of subjugation, including during slavery and colonial rule.21
See James Thuo Gathii, The Agenda of Third World Approaches to International Law (TWAIL), in International Legal Theory: Foundations and Frontiers (Jeffrey Dunoff & Mark Pollack eds., forthcoming 2021).
Anghie, supra note 8, at 103.
See generally Keisha N. Blain et al., New Perspectives on the Black Intellectual Tradition (2018).
There is also no evidence that the quality of scholarship on race and international law is the reason that accounts for this legacy of exclusion. To make such an argument is to claim that scholarship on race is inferior or that scholars, especially scholars of color interested in producing this scholarship, are lazy and have not produced such scholarship. In fact, there is a strong Black tradition of international law. For examples of scholarship on race and international law that prove the existence of such scholarship, see Adrian Katherine Wing, Critical Race Feminism and the International Human Rights of Women in Bosnia, Palestine and South Africa: Issues for LatCrit Theory, 28 U. Miami Inter-Am. L. Rev. 337 (1996); Branwen Jones, Race in the Ontology of International Order, 56 Pol. Stud. 907 (2008); Chantal Thomas, Causes of Inequality in the International Economic Order: Critical Race Theory and Postcolonial Development, 9 Transnat’l L. & Contemp. Problems 1 (1999); Ediberto Roman, A Race Approach to International Law (RAIL): Is There Need for Yet Another Critique of International Law?, 33 U.C. Davis L. Rev. 1519 (2000); Ediberto Roman, Reconstructing Self- Determination: The Role of Critical Theory in the Positivist International Law Paradigm, 53 U. Miami L. Rev. 943 (1999); Edwin D. Davis & Betty Punnett, International Assignments: Is There a Role for Gender and Race in Decisions?, 6 Int’l J. Hum. Res. Mgmt. (1995); Gil Gott, Critical Race Globalism? Global Political Economy, and the Intersections of Race, Nation and Class, 33 U.C. Davis L. Rev. 1503 (2000); Henry J. Richardson III, Excluding Race Strategies from International Legal History: The Self-Executing Treaty Doctrine and the Southern Africa Tripartite Agreement, 45 Vill. L. Rev. 1091 (2000); Henry J. Richardson III, Reverend Leon Sullivan’s Principles, Race, and International Law: A Comment, 15 Temple Int’l & Comp. L.J. 55–80 (2001); Tayyab Mahmud, International Law and the Race-Ed Colonial Encounter: Implementation, Compliance and Effectiveness: International Dimensions of Critical Race Theory, 91 Am. Soc’y Int’l L. Proc. 414 (1997); James Thuo Gathii, International Law and Eurocentricity: Book Review, 9 Eur. J. Int’l L. 184 (1998); James Wilets, From Divergence to Convergence? A Comparative and International Law Analysis of LGBTI Rights in the Context of Race and Post-Colonialism, 21 Duke J. Int’l & Comp. L. 631 (2010); Jordan Paust, Race-Based Affirmative Action and International Law, 18 Mich. Int’l L. Rev. 659 (1996); Keith Aoki, Space Invaders: Critical Geography, The “Third World” of International Law and Critical Race Theory, 5 Vill. L. Rev. 913 (2000); Kim Beneta Vera, From Papal Bull to Racial Rule: Indians of the Americas, Race, and the Foundations of International Law, 42 Cal. W. Int’l L.J. 453 (2011); Makau Matua, Critical Race Theory and International Law: The View of an Insider-Outsider, 45 Vill. L. Rev. 841 (2000); Martti Koskenneimi, Race, Hierarchy and International Law: Lorimier’s Legal Science, 27 Eur. J. Int’l L. 415 (2016); Penelope Andrews, Making Room for Critical Race Theory in International Law: Some Practical Pointers, 45 Vill. L. Rev. 855 (2000); Ruth Gordon, Critical Race Theory and International Law: Convergence and Divergence, 45 Vill. L. Rev. 827 (2000); Robert Knox, Civilizing Interventions? Race, War and International Law, 1 Cambridge Rev. Int’l Aff. (2013); Ronit Lentin, Palestine/Israel and State Criminality: Exception, Settler Colonialism and Racialization, 5 St. Crime J. 32, (2016); Sankaran Krishna, Race, Amnesia, and the Education of International Relations, 26 Alternatives 401 (2001); Siba Grovogui, Come to Africa: A Hermeneutics of Race in International Law, 26 Alternatives 425 (2001); Taylor Natsu Saito, From Slavery and Seminoles to AIDS in South Africa: An Essay on Race and Property in International Law, 45 Vill. L. Rev. 1135 (2000); and Twila Perry, Transracial and International Adoption: Mothers, Hierarchy, Race and Feminist Legal Theory, 10 Yale J.L & Feminism 101 (1998). For books on the topic, see Alexander Anievas, Race and Racism in International Relations: Confronting the global colour line (2015); Geeta Chowdry & Sheila Nair, Power, Postcolonialism and International Relations: Reading Race, Gender and Class (2002); and Sundhya Pahuja, Corporations, Universalism and the Domestication of Race in International Law, in Empire, Race and Global Justice (Duncan Bell ed., 2019). For additional resources, see Jeanne M. Woods, Introduction: Theoretical Insights from the Cutting Edge, 104 Am. Soc’y Int’l L. Proc. 389 (2010); International Dimensions of Critical Race Theory, 91 Am. Soc’y Int’l L. Proc. 408 (1997); Henry J. Richardson III, African Americans and International Law: For Professor Goler Teal Butcher, with Appreciation, 37 Howard L.J. 217 (1994).
In that research, I answer the following questions: whether Black scholars are cited by the most prominent scholars, and whether the work of Black scholars is not reproduced or acknowledged in leading casebooks.
See generally Yussuf Naim Kly, International Law and the Black Minority in the U.S. (1985).
See generally A Popular Guide to Minority Rights (Yussuf Naim Kly ed., 1995).
Just because a scholar is Black does not mean that they represent Black people or, for that reason, all Black people. See Olúfémi O. Táíwò, Being-in-the-Room Privilege: Elite Capture and Epistemic Deference, 108 The Philosopher 61 (2020) (writing about “standpoint philosophy”).
So what accounts for AJIL and AJIL Unbound’s extremely limited publication of scholarship probing the racist underpinnings of international law, as well as the racial hierarchies upon which international law was constructed? Why is it that these two publications have had no tradition of publishing scholarship that traces international law’s historical and continuing complicity in producing racial inequality and hierarchy including slavery, as well as the subjugation and domination of the peoples of the First Nations?
The 2020 Richardson Report adopted by the American Society of International Law, under whose umbrella AJIL is published, concluded that “during the first six decades of the existence and growth of the Society,” the Society “silently [and] effectively exclude[d] domestic persons of color and others, based on their ethnicity, culture, religion or sexual orientation.”29
The Richardson Report, supra note 11, at 8–9.
See, e.g., Eddie R. Cole, The Campus Color Line: College Presidents and the Struggle for Black Freedom (2020).
Abebe, Chilton, and Ginsburg also cite a letter written to the editors of AJIL in 1999 noting that a then recently published agora of the methods of international law did not include any perspectives relating to the concerns of scholars of color.31
See Henry J. Richardson III, Letter to the Editor, 94 Am. J. Int’l L. 99, 99 (2000) (expressing disappointment that perspectives of “people of color” were not represented).
[I] was sadly disappointed that critical race theory/Latino critical legal theory (CRT/LCT) was omitted totally from that discussion, even to the absence of a single footnote. That omission crucially distorts the symposium by ignoring the emergence in the last two decades of new approaches to international law, based on determinations by people of color that in order to erase embedded systematic discrimination they must become jurisprudential producers and not merely remain jurisprudential consumers.32
Id. For another recounting of this episode, see Woods, supra note 24.
Further, it was not until 2014, about 107 years after AJIL was founded, that an African American was first elected to sit on its Board of Editors. It can be inferred from this history of exclusion, what the report calls the silent and effective exclusion of domestic persons of color, that it is not surprising that AJIL has not focused extensively on tracing the relevance of race to international law.33
Lori Damrosch, The “American” and the “International” in the American Journal of International Law, 100 Am. J. Int’l L. 2, 14 (2006), notes that from its founding until 1944, AJIL did not have a nationality restriction as to membership. In 1944, the ASIL imposed a requirement that to be elected, an editor had to be American. Id. at 14. Damrosch also notes that the “composition of the board had seen little change in decades: more than half of the members serving in 1944 had been elected between 1910 and 1924 and some went back virtually to the founding in one capacity or another.” Id. at 13. The nationality requirement was removed in 1969. Notably, therefore, while editorial membership was open to non-Americans for most of AJIL’s history, no African American was elected until 2014. As Damrosch notes, diversity was understood as “either electing a larger proportion of members with a non-U.S. affiliation or … creating a separate category of foreign editors.” Id. at 14. Diversity, it seems, was never understood as including domestic minorities such as African Americans.
Id. at 17.
This exclusion of African Americans also likely accounts for the epistemic silencing of articles critical of the racist underpinnings of international law. In 1994, Richardson observed that Black “international lawyers are expected either to enter with the same policy assumptions and theoretical approaches held by white international lawyers, or over a short time to be socialized into the same experience.”35
Richardson, African Americans and International Law: For Professor Goler Teal Butcher, with Appreciation, supra note 24, at 221.
As Richardson argues, including “international lawyers of color to the profession is tantamount to including non-Eurocentric and non-establishmentarian starting points, procedural emphases, policy perceptions and objectives and theoretical preferences.” Id. at 222.
Id.
This is a critical insight since African Americans and much of the Global South rose up against chattel slavery in the new world and alien, racist colonial rule “not by a critique structured by Western conceptions of freedom but by a total rejection of enslavement and racism as it was experienced.”38
Robin D.G. Kelley, Foreword: Why Black Marxism? Why Now xvii, in Cedric J. Robinson, The Making of the Black Radical Tradition (1983).
A recent study in the completely different field of psychological research sought to establish how often scholarship on psychology and race was published in top-tier cognitive, developmental, and social psychology journals. It found after examining 26,000 empirical articles published from 1974 to 2018:
First, across the past five decades, psychological publications that highlight race have been rare, and although they have increased in developmental and social psychology, they have remained virtually nonexistent in cognitive psychology. Second, most publications have been edited by White editors, under which there have been significantly fewer publications that highlight race.39
Steven O. Roberts et al., Racial Inequality in Psychological Research: Trends of the Past and Recommendations for the Future, 15 Persps. Psych. Sci. 1295 (2020). But see Chris C. Martin, Equal Representation Is Inequality, and Other Fallacies: A Commentary on Roberts Et Al., PsyArXiv (2020), https://psyarxiv.com/zusmd.
In June 2021, it was disclosed that the leading medical journals in the United States, including the Journal of the American Medical Association, had rarely addressed issues relating to race and racism.40
Apoorva Mandavilli, Medical Journals Blind to Racism as Health Crisis, Critics Say, N.Y. Times (June 2, 2021), https://perma.cc/VK26-G6GD.
Gathii, supra note 20.
Report of the Ad Hoc Committee on AJIL Governance (2013) (on file with author). That 2013 report noted that as “far as the Committee is aware, an African American has never served on the Journal Board of Editors; moreover, only Asian American has served on the Board. This stands in sharp contrast to the diversity of talent reflected in the Society’s growing membership.” Id. at 5. That report also recommended the amendment of the Lillich Guidelines for selection of articles for publication in AJIL. Id. at 6. Those guidelines, in my view, placed an insuperable barrier to diversifying the Board.
See Minutes, AJIL Board of Editors, Extraordinary Meeting (June 19, 2014) (on file with author) (noting that the AJIL Board had received guidance from the Executive Council to reconsider the slate of candidates “to provide for more diversity . . . by accelerating the planned expansion of board membership so as to provide an opportunity this year for greater gender diversity”).
While noting that Marxist scholarship on international law has not been accepted in mainstream academic circles, Bhupinder S. Chimni, a leading TWAIL Marxist scholar, noted that this unacceptability is “a price that critical theories in general have to pay for contesting dominant ideas and approaches.”44
Bhupinder S. Chimni, International Law and World Order: A Critique of Contemporary Approaches 20 (2017).
have to confront the ‘subtle censorship of academic decorum.’… the fate of other critical theories such as TWAIL, FtAIL, [Feminist Approaches to International Law], or NAIL, [New Approaches to International Law,] have only been a shade better. Indeed all critical theories are sought to be marginalized by MILS [Mainstream International Legal Scholarship]. But it is only to be expected as critical theories are ranged against the interests of dominant national and international social forces, and therefore often portrayed by the mainstream as unacceptable forms of academic dissent.45
45Id.
Elsewhere, I have responded to dismissive claims that TWAIL scholarship lacks methodological clarity or that it engages in nihilist deconstruction.46
James Thuo Gathii, The Agenda of Third World Approaches to International Law (TWAIL), in International Legal Theory: Foundations and Frontiers (Jeffrey Dunoff & Mark Pollack eds., 2019).
The hideous cruelties, abominable humiliations, and incredible injustices suffered by the colored race have created a bitterness that precludes an objective and fair analysis of the whole colonial problem. The author . . . has not provided a dispassionate and realistic solution . . . . The author seems to reveal a lack of realism in considering the status of the many African tribes so obviously unprepared for united political action, self-government and independence. He does not credit the colonial powers with sincerity in acknowledging their responsibilities as trustees for the education of backward peoples for full freedom and international obligations.47
47P.M. Brown, Color and Democracy: Colonies and Peace. By W. E. Burghardt DuBois, 39 Am. J. Int’l L. 869, 869 (1945).
Those words speak for themselves. They strongly suggest that uncovering sensitive issues of race will only sow division and that they constitute pure grievance, presumably because it is not possible to speak about race and racism objectively.48
It is notable that it is not only in international law scholarship where a focus on race is dismissed as ideologically motivated and subjective. For example, critiques of Derald Wing Sue’s important work on microagressions dismiss them as conceptual nonsense and ignore the relevancy of race. See, e.g., Scott O. Lilienfeld, Microagressions: Strong Claims, Inadequate Evidence, 12 Persps. Psych. Sci. 138 (2017).
Daniel Abebe, Adam Chilton & Tom Ginsburg, The Social Science Approach to International Law, 22 Chi. J. Int’l L. 1, 20 (2021) (arguing that “at the end of the day, some of the critical calls for engagement have tended to place the normative commitments above positive inquiry”). That issues relating to race are judged normatively and therefore differently, rather than objectively, is consistent with the finding that in law firms, Black associates are judged more harshly than their white counterparts by white partners. See Arin N. Reeves, Written in Black & White: Exploring Confirmation Bias in Racialized Perceptions of Writing Skills (2014), https://perma.cc/644T-JHBQ.
All this suggests that perhaps the proper way to research and write about international law is devoid of any emotion or reference to the racial power of law. Even more, the reviewer of the DuBois book held the views that the colored peoples of the colonies are backward, itself a racist notion, and that W.E.B. DuBois failed to give credit to the colonial powers for all they were doing! That is certainly an apology for colonialism. I may be accused of anachronism here—that I am using my twenty-first century lens to judge what this reviewer meant in 1945.50
For more on anachronism and TWAIL, see Gathii, supra note 21. See also Anne Orford, International Law and the Politics of History (2021).
For more on this, see Adom Getachew, Worldmaking After Empire: The Rise and Fall of Self-Determination (2019). Gethachew studies “the global projects of decolonization Black Anglophone anticolonial critics and nationalists spearheaded in the three decades after the end of the Second World War.” Id. at 2. See also Christopher Geveers, “Unwhitening the World”: Rethinking Race and International Law, 67 UCLA L. Rev. 1652 (2021).
On this, see Jennifer Pitts & Adom Getachew, W.E.B. Du Bois’s International Writings (forthcoming 2021).
The data I have unearthed clearly shows that the Black international tradition is underrepresented in AJIL and its online companion.53
For more on Black traditions of international law, see James T. Gathii, Henry J. Richardson III: The Father of Black Tradition of International Law, 31 Temp. Int’l & Comp. L.J. 325 (2017); Darin E.W. Johnson, How U.S. Civil Rights Leaders’ Human Rights Agenda Shaped the United Nations, 1 Howard Hum. & Civ. Rts. L. Rev. 33 (2017); H. Timothy Lovelace Jr., Making the World in Atlanta’s Image: The Student Nonviolent Coordinating Committee, Morris Abram, and the Legislative History of the United Nations Race Convention, 32 L. & Hist. Rev. 385 (2014); Foreign Policy and the Black (Inter)National (Charles P. Henry ed., 2000); Joyce Elaine King, Education, Research in the Black Liberation: Return What You Learn to the People, 86 J. Negro Educ. 2 (2017).
Edward Said, Orientalism (1978).
For if it is true that no production of knowledge in the human sciences can ever ignore or disclaim its author’s involvement as a human subject in his own circumstances, then it must also be true that for a European or American studying the Orient there can be no disclaiming the maid circumstances of his actuality: that he comes up against the Orient as a European or American first, as an individual second. And to be a European or an American in such a situation is by no means an inert fact. It meant and means being aware, however dimly, that one belongs to a power with definite interests in the Orient, and more important, that one belongs to a part of the earth with a definite history of involvement in the Orient almost since the time of Homer.
Id. at 19. As an editor on AJIL for the last seven years, my personal experience has been that there has been policing of boundaries about what is valuable scholarship and what is not. Scholarship probing or critiquing international law’s complicity in colonialism, slavery, and racism has, in my experience, not been regarded as a valuable type of scholarship.
Id. at 14.
Further research needs to interrogate the methods of exclusion of work relating to race as well as the scholarship of minority scholars to see if this scholarship around issues of race was prevented not just by the absence of honest racial dialogue, but also by mechanisms of exclusions such as those that pose a tradeoff between quality and diversity. Further, it would be great to know if, as an imperative to maintain the quality of AJIL and AJIL Unbound, it has been necessary to police the boundaries of what is published to prevent the quality of the journal being compromised. As I will note in the conclusion, this conversation has only just commenced within the Board of Editors of AJIL.
C. Hypothesis Three: The Big or Defining Debates About International Law in the United States Have Focused on Issues Other than Race
TOPThe defining debates about international law in the United States, as represented in AJIL, have not simply focused on or zeroed in on the role and place of race in international law. That means the editors of AJIL focused on topics that they considered to be the most important. As a review of AJIL’s first century noted, the journal has a “peculiarly messianic and distinctively American, vision and thrust” traceable to its founders.56
Bederman, supra note 7, at 21.
As noted above, the African American scholar Y.N. Kly published at least two books on this subject.
That argument is made persuasively by Makau w. Mutua, The Ideology of Human Rights, 36 Va. J. Int’l L. 589 (1996).
See James Thuo Gathii, Keynote Address at the 2021 Wisconsin Journal of International Law Symposium: Race, Racism and International Law: A Repudiation of US Exceptionalism (Apr. 8, 2021).
In the last couple of years, a non-exhaustive list of examples of some of the big themes that have preoccupied international legal scholarship include:
- The big culture wars of AJIL were about the place of international law within the U.S. legal order, and in particular the debate between the modern and revisionist position about the status of customary international law as federal common law.6060These debate have centered on the “constitutional dimensions of U.S. foreign affairs law” and they have straddled the history of the journal from its founding.61
This debate is summarized here: Ingrid B. Wuerth, The Alien Tort Statute and Federal Common Law: A New Approach, 85 Notre Dame L. Rev. 101 (2010). Notably, AJIL’s early focus on federalism as an analogy to international law a century later anchored the revisionist position about the effect of international law within the United States. For this early AJIL focus on US federalism, see Carl Landauer, supra note 6, at 338.
61So American has AJIL’s focus been that a controversy is reported to have emerged within the governing board of ASIL about awarding Hans Kelsen the 1952 ASIL annual distinguished scholarship award because he “had not adopted a U.S. policy orientation.”62See, e.g., Bederman, supra note 7, at 38 (noting the historical continuation of this theme in the early Cold War period, 1947–1963). In the later Cold War period, 1964–1989, Bederman noted that “the Journal’s preeminence in U.S. constitutional law doctrine and foreign relations law remained unchallenged.” Id. at 43. Further, he notes that in the final years of the Cold War was a “preoccupation with virtually all aspects of the U.S. law of foreign affairs.” Id. at 47.
62Damrosch, supra note 33, at 15.
- Another major AJIL theme has been the role of the U.S. in the world. This has involved questions of war (including torture, rendition in the recent past), national security, as well as humanitarian intervention every time there is a discussion about the use of force. In David Bederman’s study of the first 100 years of AJIL scholarship, he noted that contributors to the journal followed a “common script of interests and attitudes” so that when the United States entered into conflict, “the journal was a loyal and obedient commentator about American war aims and objectives, as befit the communication organ of a society that was, at one and the same time, progressive and conservative on this country’s legal engagements overseas.”6363
Bederman, supra note 7, at 49.
- AJIL has also focused on the U.S.’s relationship with international institutions like the United Nations, the International Criminal Court, and the International Court of Justice.6464
Id. at 47 (“[O]ne of the signal aspects of [the final years of the Cold War was] the incredible amount devoted to the role of the United Nations (especially the collective security mechanisms of the Security Council). This writing harks back to scholarship about the Hague Peace Conferences and the League in its formative years.”).
- Another commitment in AJIL has been a “belief in the ultimate inevitability of a community of nations living under the rule of law.”6565
Id. at 23.
- AJIL has been consistently committed to international arbitration and institutions for promoting stable and predictable relations between states.6666
Id. at 23. Bederman notes that the “first seven volumes of the journal convey an overall impression of almost complete dedication to expounding the virtues and possibilities of institutions of international arbitration.” Id. at 26; see also Landauer, supra note 6, at 337, 340 (also noting that the “particular American investment in ‘assuring the peace of the world’ was a commitment to the development of arbitration [that dated back to] the first International American Conference held in Washington in 1889-90 as a ‘Magna Carta which abolished war and substitutes arbitration between the American Republics’”). Landauer notes that John Bassett Moore, another prominent early member of ASIL and “author of the eight-volume digest of international arbitration[,] was a paid representative of a U.S. based investment company in a case it filed against the Dominican government at a time that Moore was also a paid representative of the State Department and in that role ‘steered the membership on the arbitration panel.’” Landauer, supra note 6, at 344. Thus concludes Landauer, “the international law advocated by US international lawyers was tied to US business interests and there were numerous actual ties between lawyers and those interests.” Id.
Another of AJIL’s major points of focus has been the type of international law questions that characterize the work of the Office of the Legal Adviser in the U.S. Department of State, which is charged with providing “advice on all legal issues, domestic and international, arising in the course of the Department’s work. This includes assisting Department principals and policy officers in formulating and implementing the foreign policies of the United States, and promoting the development of international law and its institutions as a fundamental element of those policies.”67
Office of the Legal Adviser, U.S. Dep’t of State, https://perma.cc/Z2Y7-XW6B.
Bederman, supra note 7, at 50.
Damrosch, supra note 33, at 18.
See Harold Koh, Keynote Address: The Obama Administration and International Law, 104 Am. Soc’y Int’l L. Proc., 104, 207–08 (2010).
First, I have absolutely extraordinary colleagues at the Legal Adviser’s Office, which we call “L,” which is surely the greatest international law firm in the world. Its numbers include many current lawyers and alumni who are sitting here in the audience, and it is a training ground for America's international lawyers. (To prove that point, could I have a show of hands of how many of you in the audience have worked in L sometime during your careers?) Our 175 lawyers are spread over 24 offices, including four extraordinary career deputies and a Counselor of International Law, nearly all of whom are members of this Society and many of whom you will find speaking on the various panels throughout this Annual Meeting program.
Id. In response, one commentator noted
[Harold Koh’s] keynote address got a few not-buying-it questions from a couple of academics—long may you live, Benjamin Davis and Mary Ellen O’Connell—but this dissonance was washed away by the warm roar of applause at session’s end. A Russian corporate lawyer chum of mine was taken aback by this mellow response to a legal justification for Bush-Cheney policies.
- Chase Madar, How Liberal Law Professors Kill, Counterpunch (May 14, 2010), https://perma.cc/S7XF-3UQ4;see also Michael P. Scharf & Paul R. Williams, Shaping Foreign Policy in Times of Crisis: The Role of International Law and the State Department Legal Adviser (2010) (discussing the role of the State Department Legal Adviser).
- Landauer, supra note 6, at 329.
- Coates, supra note 3, at 81–82.
- Bederman, supra note 7, at 22.
- Coates, supra note 3, at 80, 83. Notably, Landauer, supra note 6, at 341, notes that the pages of AJIL were not always “entirely copy for the United States,” in a discussion of criticisms leveled against the United States for its hypocrisy of the Drago and Calvo doctrines that featured in the pages of AJIL. Id. at 341, 342.
- Coates, supra note 3, at 67. Corroborating this is another excellent essay on AJIL’s founding by Carl Landauer. Landauer, supra note 6, at 326.
- Landauer, supra note 6, at 327.
- This point is the subject of another essay. Gathii, supra note 59.
- For the same point in another context, see bell hooks, Teaching to Transgress: Education as the Practice of Freedom 12 (1994).
- Gathii, supra note 20.
- The Richardson Report, supra note 11.
- Gathii, supra note 20; see also Tendayi Achiume & Devon W. Carbado, Critical Race Theory Meets Third World Approaches to International Law, 67 UCLA L. Rev. 1462 (2021).
- For example, Justin Desautels-Stein, James Anaya, and Tendayi Achiume organized the “International Law and Racial Justice” workshop at the University of Colorado, Boulder, School of Law in August 2018. Another symposium in March 2019 titled “Critical Perspectives on Race and Human Rights: Transnational Re-Imaginings” and a workshop immediately thereafter titled “Race, Empire and International Law Workshop,” co-sponsored by UCLA School of Law’s Promise Institute for Human Rights and Critical Race Studies Program, were held under the guidance of Tendayi Achiume and Asli Bali. Following those events, in January 2020, the UCLA Law Review Symposium, entitled “Transnational Legal Discourse on Race and Empire,” was held. For the introduction to that symposium, see Tendayi Achiume and Asli Bali, Race and Empire: Legal Theory Within, Through and Across National Borders 67 UCLA L. Rev. 1386 (2021).
- Established under the ASIL Honorary Presidency of Judge Gabrielle Kirk McDonald, BASIL’s goals include (1) increasing the number and influence of Blacks within ASIL, and (2) strengthening and affirming the role of Black international lawyers, jurists, and academics in the United States. See Letter from BASIL Exec. Comm. to the AJIL Co-Editors in Chief (Oct. 5, 2020) [hereinafter BASIL Letter] (on file with author).
- See id.
- Id. at 2–3.
- Email from AJIL Editors in Chief (Dec. 3, 2020) (on file with author).
- BASIL Letter, supra note 83, at 3.
- Am. J. Int’l Law, Report of the AJIL Ad Hoc Diversity Committee 5–6 (2021) (on file with author).
- The two African American female editors elected were Adrien Katherine Wing and Tendayi Achiume. The first scholar of indigenous descent, elected on the board on the same day, March 19, 2021, was James Anaya. See James Thuo Gathii (@JTGathii), Twitter (Mar. 19, 2021, 3:39 PM), https://twitter.com/JTGathii/status/1373011376420106241.
- For a sampling of such scholarship, see the TWAIL bibliography attached to my 2020 ASIL Grotius Lecture. James Thuo Gathii, The Promise of International Law: A Third World View (Including a TWAIL Bibliography 1996–2019 as an Appendix) 114 Am. Soc’y Int’l L. Proc. 165 (2021), https://perma.cc/CL73-VM3F.
- Black Lives Matter, EJIL: Talk!, https://perma.cc/6HS2-KP8A.
- Maryam Jamshidi & Emily Berman, Embracing Diversity and Critical Perspectives in National Security Law, Just Security (Oct. 30, 2020), https://perma.cc/42L7-BWFX.
Chase Madar, How Liberal Law Professors Kill, Counterpunch (May 14, 2010), https://perma.cc/S7XF-3UQ4;see also Michael P. Scharf & Paul R. Williams, Shaping Foreign Policy in Times of Crisis: The Role of International Law and the State Department Legal Adviser (2010) (discussing the role of the State Department Legal Adviser).
Landauer, supra note 6, at 329.
Coates, supra note 3, at 81–82.
Bederman, supra note 7, at 22.
Coates, supra note 3, at 80, 83. Notably, Landauer, supra note 6, at 341, notes that the pages of AJIL were not always “entirely copy for the United States,” in a discussion of criticisms leveled against the United States for its hypocrisy of the Drago and Calvo doctrines that featured in the pages of AJIL. Id. at 341, 342.
Coates, supra note 3, at 67. Corroborating this is another excellent essay on AJIL’s founding by Carl Landauer. Landauer, supra note 6, at 326.
Another hypothesis is that color-blindness has been the default norm in the production of international law scholarship published in AJIL and AJIL Unbound. This is consistent with the fact that the U.S. government has a long history of limiting scrutiny of its record of domestic racial inequality, racial injustice, and ongoing marginalization of women and Indigenous peoples through international law.77
Landauer, supra note 6, at 327.
This point is the subject of another essay. Gathii, supra note 59.
As I have noted elsewhere recently, domestic U.S. law was constructed on assumptions that white identity embodied the ideal expression of humanity in terms of morality, progress, and civilization. Likewise, imperial international law was constructed on the basis of white racial superiority—as rational stewards of the territories of non-Europeans—and on the basis of racist myths of indigenous savagery, primitivism, and pathology. Hence, just as slavery dehumanized African Americans as degenerate and outside the boundaries of humanity in the construction of the United States as a white racial state, European and white international law was constructed to superintend over “backward” non-European peoples who were considered to live outside the bounds of humanity and therefore outside of sovereignty.79
For the same point in another context, see bell hooks, Teaching to Transgress: Education as the Practice of Freedom 12 (1994).
In this Essay, I have used the social science approach to studying international law recommended by Abebe, Chilton, and Ginsburg to show the near total silence of issues of race in the pages of AJIL and AJIL Unbound. I have hypothesized that the exclusion of issues of race from the pages of the leading international law journal can be accounted for along four dimensions. First, this absence reflects the conscious exclusion of African Americans in ASIL in the first six decades of its existence, as the 2020 Richardson Report found.80
Gathii, supra note 20.
This Essay shows two things. First, that Abebe, Chilton, and Ginsburg’s social science approach can be fruitfully applied to answer questions that critical international law scholars are interested in. Second, that in tracing the legacy of race in international law, as I have done in this article, Abebe, Chilton and Ginsburg’s distinction between the neutrality of the scientific methodology they subscribe to, on the one hand, and the normativity of critical approaches that they argue characterizes other approaches, on the other hand, cannot be sustained. This is because the choice of the subject matter that a social science approach takes necessarily excludes other choices. Making that choice is therefore a process of inclusion as well as of exclusion. To the extent that a choice must be made, the selection itself is normative. In addition, the choice of what gets published and what does not, as this Essay has tried to show, can itself be an exclusionary process—something that cannot be normatively or ideologically neutral.
This Essay has shown that AJIL and its companion AJIL Unbound have published little on race in over 100 years. Yet, race is heavily embedded in how many rules of international law were formulated and the manner in which it is applied to date. This absence of articles relating to race reflects choices that have effectively discouraged, if not silenced, the production of scholarship on race and international law. That outcome, I contend, is not inevitable, natural, and necessary, but is perhaps rather a reflection of the choices about what types of knowledge in international law matter enough to be published in the pages of AJIL and AJIL Unbound.
So, what can be done about this exclusion of scholarship probing the role of race in AJIL and AJIL Unbound? Elsewhere, I have made the case that CRT scholars and TWAIL scholars should work together to combat the “all-too-often mainstream efforts to provincialize, define, and box critical approaches—especially when they delve into issues of race and identity—as marginal and irrelevant, rather than as significant contributions that challenge expand their respective fields.”81
The Richardson Report, supra note 11.
Gathii, supra note 20; see also Tendayi Achiume & Devon W. Carbado, Critical Race Theory Meets Third World Approaches to International Law, 67 UCLA L. Rev. 1462 (2021).
Within AJIL, on October 5, 2020, the Executive Committee of Blacks of the American Society of International Law (BASIL)83
For example, Justin Desautels-Stein, James Anaya, and Tendayi Achiume organized the “International Law and Racial Justice” workshop at the University of Colorado, Boulder, School of Law in August 2018. Another symposium in March 2019 titled “Critical Perspectives on Race and Human Rights: Transnational Re-Imaginings” and a workshop immediately thereafter titled “Race, Empire and International Law Workshop,” co-sponsored by UCLA School of Law’s Promise Institute for Human Rights and Critical Race Studies Program, were held under the guidance of Tendayi Achiume and Asli Bali. Following those events, in January 2020, the UCLA Law Review Symposium, entitled “Transnational Legal Discourse on Race and Empire,” was held. For the introduction to that symposium, see Tendayi Achiume and Asli Bali, Race and Empire: Legal Theory Within, Through and Across National Borders 67 UCLA L. Rev. 1386 (2021).
Established under the ASIL Honorary Presidency of Judge Gabrielle Kirk McDonald, BASIL’s goals include (1) increasing the number and influence of Blacks within ASIL, and (2) strengthening and affirming the role of Black international lawyers, jurists, and academics in the United States. See Letter from BASIL Exec. Comm. to the AJIL Co-Editors in Chief (Oct. 5, 2020) [hereinafter BASIL Letter] (on file with author).
[T]aking into account the progress made since 2014 when the first African Americans were elected as Editors of the American Journal of International Law, BASIL calls upon the Editors of the American Journal of International Law:
- To continue to make diversity and inclusivity a consideration, particularly of African Americans, in those selected for nomination to be AJIL Editors;
- To continue to make diversity and inclusivity a consideration, particularly of African Americans, among those elected to be AJIL Editors;
- To ensure that appointive positions at the discretion of the Editors in Chief in the Journal (such as for Section Heads, Associate Managing Editors, committee chairs, and other leadership positions) reflect the diversity of ASIL’s membership and in particular of African Americans and critical race scholars;
- To in particular ensure that the appointment of Associate Managing Editors include African Americans since this has become an informal pipeline for election to become Editors and yet no African Americans have served in this role;
- To ensure an open, more transparent application process for Associate Managing Editors (comparable to ASIL’s approach to openly advertising leadership positions) —e.g., advertised through historically-Black law schools, the National Bar Association, BASIL, and other appropriate institutions that may provide a gateway for African American and other underrepresented lawyers who specialize in international law;
- To avoid the types of word-of-mouth (and “old boy’s network”) hiring approaches that have been found illegal under U.S. civil rights law, as such hiring processes served to exclude, rather than open up the pipeline of opportunity;
- To in particular ensure that the appointment of the Nomination Committee for the election of new Editors is inclusive and diverse and, to the extent possible, especially when African American editors are finalizing their terms of office or when they have decided not to seek re-election, that African American Editors are part of the Nominating Committee;
- To continue to add to rather than to reduce the number of African Americans on the Board of Editors to avoid the legacy of exclusion of African Americans in the Board of Editors; and
- To continue maintaining African American nominees eligible for election put forward by the Nominating Committee but not elected for consideration in subsequent elections.8585
See id.
An ad hoc committee on Diversity in AJIL was convened in late 2020 with a mandate to look into “how AJIL should promote racial and other forms of diversity in the process for nominations, elections to the Board, and selection of section heads and editorial positions on Unbound.”86
Id. at 2–3.
Email from AJIL Editors in Chief (Dec. 3, 2020) (on file with author).
Recommendation (1): Diversity Statement. Replace the Lillich Guidelines with a Diversity Statement that can be used to guide or question future decisions:
Sample language: The American Journal of International Law is committed to being the preeminent publication on international law in the United States. Toward that end, the Journal will select highly qualified individuals, who have diverse backgrounds and perspectives (along multiple dimensions), to participate in decisionmaking on the Board of Editors and in other management or editorial positions. This commitment to diversity is not only in the service of excellence but also consistent with fundamental non-discrimination norms in the field of international law.
Send this Diversity Statement to nominees for election to the Board, with the statement on active service, in order to establish expectations for Board membership.
Recommendation (2): Cultivate Diverse Talent. Work with relevant ASIL groups and programs (e.g., BASIL, WILIG, MILIG, and “new voices”) to provide mentorship and advice to interested scholars who are of color (especially African American) or are not cisgender men. Include a diverse range of article reviewers when going outside the Board, as one way to identify possible future candidates for the Board.
Recommendation (3): Transparency in Nomination and Selection Criteria. Publicize information about the criteria for being nominated or selected to the Board or to other management or editorial positions, so that qualified candidates who are not well networked can more easily put themselves forward.
Recommendation (4): Open the Processes for Selecting Section Heads and Editorial Positions for AJIL Unbound. Consider publicizing (at least to members of the Board) when these positions become available so that the pool of candidates can be expanded and diversified. Also consider involving some members of the Board in the appointment decisions.
Recommendation (5): Nomination Committee Diversity Consideration. Ensure that the Nomination Committee is diverse and require it, when presenting the candidates for selection to the Board, to describe the steps it took to include a slate of candidates who are diverse among many dimensions, including race (especially African Americans) and gender.
Recommendation (6): Create an Inclusive and Equitable Environment on the Board. Provide more opportunities for Board members to interact and participate in decisions relating to the Board. For example, consider using semiannual meetings to discuss strategic decisions, best practices for reviewing manuscripts, or opportunities for future engagement and involvement. In addition, encourage Board members to present their own ideas for the Journal; avoid creating an environment (actual or perceived) in which only a small subset of Board members shape the content of the Journal.
Recommendation (7): Do Not Backslide. Given the progress that has been achieved in diversifying the Board, create the expectation that future Board Elections will build on rather than undercut this progress; perhaps use as a baseline goal the 2020-2021 composition of the Board. Encourage Board members to disclose on a voluntary basis their racial, ethnic or other forms of diversity to help the Journal track progress in diversifying the Board.
Recommendation (8): Regular Diversity Review. Institute a regular process for reviewing, perhaps every three years, the diversity on the Board and in other editorial and management positions and for recommending further action, as necessary.
Recommendation (9): Diversity in Content. Institute a process for considering whether and, if so, how AJIL should try to diversify its content such that it includes a broader range of topics and methods of analysis, including but not limited to those relating to gender, race, and ethnicity.88
BASIL Letter, supra note 83, at 3.
In short, AJIL’s Editorial Board has instituted a process to address many of the issues raised in the BASIL letter and which, in my view, have prevented AJIL and AJIL Unbound from publishing scholarship critically analyzing the role of race in international law. That said, as important as the process is for addressing issues of content in AJIL and AJIL Unbound, the measure of success is when AJIL and AJIL Unbound regularly publish issues of race and identity as often as they publish on black letter law issues.
The foregoing nascent efforts within AJIL, including the election of two female African American editors and the first indigenous American as an editor,89
Am. J. Int’l Law, Report of the AJIL Ad Hoc Diversity Committee 5–6 (2021) (on file with author).
The two African American female editors elected were Adrien Katherine Wing and Tendayi Achiume. The first scholar of indigenous descent, elected on the board on the same day, March 19, 2021, was James Anaya. See James Thuo Gathii (@JTGathii), Twitter (Mar. 19, 2021, 3:39 PM), https://twitter.com/JTGathii/status/1373011376420106241.
For a sampling of such scholarship, see the TWAIL bibliography attached to my 2020 ASIL Grotius Lecture. James Thuo Gathii, The Promise of International Law: A Third World View (Including a TWAIL Bibliography 1996–2019 as an Appendix) 114 Am. Soc’y Int’l L. Proc. 165 (2021), https://perma.cc/CL73-VM3F.
Black Lives Matter, EJIL: Talk!, https://perma.cc/6HS2-KP8A.
- 1AJIL was first published in 1907, whereas AJIL Unbound was first published in 2014.
- 2See, e.g., Christiane Wilke, Reconsecrating the Temple of Justice: Invocations of Civilization and Humanity in the Nuremberg Justice Case, 24 Can. J.L. & Soc’y 181 (2009).
- 3Benjamin Allen Coates, Legalist Empire: International Law and American Foreign Relations in the Early Twentieth Century 83 (2016).
- 4Id. at 43.
- 5Id. at 1.
- 6Carl Landauer, The Ambivalence of Power: Launching the American Journal of International Law in an Era of Empire and Globalization, 20 Leiden J. Int’l L. 325, 328 (2007).
- 7Coates, supra note 3, at 3. Coates concludes that lawyers were therefore “ideological actors as much as technical advisers.” Id. at 180. See D.J. Bederman, Appraising a Century of Scholarship in the American Journal of International Law, 100 Am. J. Int’l L. 20, 62 (2006) (“American international lawyers, speaking through AJIL, have advanced U.S. policy initiatives, doctrines and positions even while vehemently disagreeing with some. Aside from these specific situations, these writers have tended (although by no means uniformly…) to believe that the project of international law is a worthwhile one that holds promise for world order.”).
- 8See, e.g., Wilke, supra note 2, at 181. In this article, Wilke shows that “the 1918–1947 volumes of the American Journal of International Law (AJIL), published by the American Society of International Law, reveal that the concept of civilization was frequently used in the period following the end of World War I, declined in popularity at the end of the 1920s, and experienced a remarkable renaissance in the decade between 1938 and 1947.” Id. at 187. The premise in the article is that the “standard of civilization” that was “dominant in late-nineteenth- and early-twentieth century international law . . . [was] an expression of the idea that international law is a body of norms for civilized states only.” Id. at 186. For another analysis of how imperialism was redefined as civilization, see Mohammad Shahabuddin, The ‘Standard of Civilization’ in International Kaw: Intellectual Perspectives from Pre-War Japan, 32 Leiden J. Int’l L. 13 (2019); Antony Anghie, Imperialism, Sovereignty and the Making of International Law 67, 84–86 (2004) (noting that independent non-European states like Japan could be brought into the realm of international law if they met the “requirements of the standard of civilization of, and being officially recognized by, European states, as proper members of the family of nations” and discussing how these non-European societies were required to meet the standard of civilization). This standard of civilization shifted in the nineteenth century. In the first half of the nineteenth century, the criteria included Christianity. In the second half, it was predicated on “European culture and institutions—in particular, the ability to furnish Europeans with legal, economic, and later, political institutions to which they had become accustomed.” Rose Parfitt, Empire des Nègres Blancs: The Hybridity of International Personality and the Abyssinia Crisis of 1935-36, 24 Leiden J. Int’l L. 849, 858 (2011).
- 9Mohsen al Attar, Subverting Racism in / Through International Law Scholarship, Opinio Juris (Mar. 3, 2021), https://perma.cc/M9KT-N3Q9;see also Mohsen al Attar, “I Can’t Breathe”: Confronting the Racism of International Law, Afronomicslaw (Oct. 2, 2020), https://perma.cc/6HAK-GLQB.
- 10Further, al Attar argues that “[n]on-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.” al Attar, Subverting Racism in / Through International Law Scholarship, supra note 9.
- 11Am. Soc’y Int’l L., The Richardson Report, Final Report from the ASIL Ad Hoc Committee Investigating Possible Exclusion or Discouragement of Minority Membership or Participation by the Society During Its First Six Decades (2020) [hereinafter The Richardson Report]. This report was drafted by an ad hoc committee appointed pursuant to American Society of International Law Executive Council Resolution of 4th April 2018. Its mandate was to investigate possible exclusion or discouragement of minority membership or participation in the Society during its first six decades. The report was unanimously adopted by the ASIL Executive Council in its meeting on April 2, 2020.
- 12HeinOnline’s Law Journal Library is available to subscribers through the HeinOnline platform. A description of the content is available at https://perma.cc/Y2GH-LP8S.
- 13See American Journal of International Law, Cambridge Core, https://perma.cc/5ANB-SDPU;AJIL Unbound, Cambridge Core, https://perma.cc/92S4-Z553.
- 14I restrict my analysis to race, rather than to terms such as imperialism and colonialism because my central inquiry relates to establishing if there has been blindness to race and its central role in shaping international law and justifying other regimes of subordinating non-white peoples including slavery and colonialism in the scholarship published in AJIL and AJIL Unbound.
- 15“Articles” includes “Lead Articles,” “Notes” includes “Contemporary Practice of the United States Relating to International Law,” “Comments” includes “Editorial Comments,” and “Reviews” includes “Book Reviews.”
- 16The AJIL and AJIL Unbound content omitted in my analysis, such as Miscellaneous items, Tables of Contents, and Legislation, does not usually include commentary and is included in AJIL primarily for informational purposes. The content was excluded here since it did not provide analysis that would contribute to establishing the answer to my primary query in this Article—namely, whether the content published in AJIL and AJIL Unbound has probed the racist underpinnings of international law, as well as the racial hierarchies upon which international law was constructed.
- 17Because there is a two-year embargo on the full text of the AJIL in HeinOnline, the full texts of the most recent documents included in the set were examined in Westlaw.
- 18When “*” is used as a search term without limiting the results to certain section types, then 7,535 results appear for AJIL, and 571 for AJIL Unbound. However, to ensure a proper comparison with the documents individually reviewed, these baseline totals were limited to Articles, Comments, Notes, Reviews, and Editorials. Thus, for the purposes of this analysis, there were 5,109 total documents in AJIL, and 568 documents in AJIL Unbound.
- 19For a leading text demonstrating this, see Anghie, supra note 8.
- 20James Thuo Gathii, Writing Race and Identity in a Global Context: What CRT and TWAIL Can Learn from Each Other, 67 UCLA L. Rev. 1610, 1613 (2021).
- 21See James Thuo Gathii, The Agenda of Third World Approaches to International Law (TWAIL), in International Legal Theory: Foundations and Frontiers (Jeffrey Dunoff & Mark Pollack eds., forthcoming 2021).
- 22Anghie, supra note 8, at 103.
- 23See generally Keisha N. Blain et al., New Perspectives on the Black Intellectual Tradition (2018).
- 24There is also no evidence that the quality of scholarship on race and international law is the reason that accounts for this legacy of exclusion. To make such an argument is to claim that scholarship on race is inferior or that scholars, especially scholars of color interested in producing this scholarship, are lazy and have not produced such scholarship. In fact, there is a strong Black tradition of international law. For examples of scholarship on race and international law that prove the existence of such scholarship, see Adrian Katherine Wing, Critical Race Feminism and the International Human Rights of Women in Bosnia, Palestine and South Africa: Issues for LatCrit Theory, 28 U. Miami Inter-Am. L. Rev. 337 (1996); Branwen Jones, Race in the Ontology of International Order, 56 Pol. Stud. 907 (2008); Chantal Thomas, Causes of Inequality in the International Economic Order: Critical Race Theory and Postcolonial Development, 9 Transnat’l L. & Contemp. Problems 1 (1999); Ediberto Roman, A Race Approach to International Law (RAIL): Is There Need for Yet Another Critique of International Law?, 33 U.C. Davis L. Rev. 1519 (2000); Ediberto Roman, Reconstructing Self- Determination: The Role of Critical Theory in the Positivist International Law Paradigm, 53 U. Miami L. Rev. 943 (1999); Edwin D. Davis & Betty Punnett, International Assignments: Is There a Role for Gender and Race in Decisions?, 6 Int’l J. Hum. Res. Mgmt. (1995); Gil Gott, Critical Race Globalism? Global Political Economy, and the Intersections of Race, Nation and Class, 33 U.C. Davis L. Rev. 1503 (2000); Henry J. Richardson III, Excluding Race Strategies from International Legal History: The Self-Executing Treaty Doctrine and the Southern Africa Tripartite Agreement, 45 Vill. L. Rev. 1091 (2000); Henry J. Richardson III, Reverend Leon Sullivan’s Principles, Race, and International Law: A Comment, 15 Temple Int’l & Comp. L.J. 55–80 (2001); Tayyab Mahmud, International Law and the Race-Ed Colonial Encounter: Implementation, Compliance and Effectiveness: International Dimensions of Critical Race Theory, 91 Am. Soc’y Int’l L. Proc. 414 (1997); James Thuo Gathii, International Law and Eurocentricity: Book Review, 9 Eur. J. Int’l L. 184 (1998); James Wilets, From Divergence to Convergence? A Comparative and International Law Analysis of LGBTI Rights in the Context of Race and Post-Colonialism, 21 Duke J. Int’l & Comp. L. 631 (2010); Jordan Paust, Race-Based Affirmative Action and International Law, 18 Mich. Int’l L. Rev. 659 (1996); Keith Aoki, Space Invaders: Critical Geography, The “Third World” of International Law and Critical Race Theory, 5 Vill. L. Rev. 913 (2000); Kim Beneta Vera, From Papal Bull to Racial Rule: Indians of the Americas, Race, and the Foundations of International Law, 42 Cal. W. Int’l L.J. 453 (2011); Makau Matua, Critical Race Theory and International Law: The View of an Insider-Outsider, 45 Vill. L. Rev. 841 (2000); Martti Koskenneimi, Race, Hierarchy and International Law: Lorimier’s Legal Science, 27 Eur. J. Int’l L. 415 (2016); Penelope Andrews, Making Room for Critical Race Theory in International Law: Some Practical Pointers, 45 Vill. L. Rev. 855 (2000); Ruth Gordon, Critical Race Theory and International Law: Convergence and Divergence, 45 Vill. L. Rev. 827 (2000); Robert Knox, Civilizing Interventions? Race, War and International Law, 1 Cambridge Rev. Int’l Aff. (2013); Ronit Lentin, Palestine/Israel and State Criminality: Exception, Settler Colonialism and Racialization, 5 St. Crime J. 32, (2016); Sankaran Krishna, Race, Amnesia, and the Education of International Relations, 26 Alternatives 401 (2001); Siba Grovogui, Come to Africa: A Hermeneutics of Race in International Law, 26 Alternatives 425 (2001); Taylor Natsu Saito, From Slavery and Seminoles to AIDS in South Africa: An Essay on Race and Property in International Law, 45 Vill. L. Rev. 1135 (2000); and Twila Perry, Transracial and International Adoption: Mothers, Hierarchy, Race and Feminist Legal Theory, 10 Yale J.L & Feminism 101 (1998). For books on the topic, see Alexander Anievas, Race and Racism in International Relations: Confronting the global colour line (2015); Geeta Chowdry & Sheila Nair, Power, Postcolonialism and International Relations: Reading Race, Gender and Class (2002); and Sundhya Pahuja, Corporations, Universalism and the Domestication of Race in International Law, in Empire, Race and Global Justice (Duncan Bell ed., 2019). For additional resources, see Jeanne M. Woods, Introduction: Theoretical Insights from the Cutting Edge, 104 Am. Soc’y Int’l L. Proc. 389 (2010); International Dimensions of Critical Race Theory, 91 Am. Soc’y Int’l L. Proc. 408 (1997); Henry J. Richardson III, African Americans and International Law: For Professor Goler Teal Butcher, with Appreciation, 37 Howard L.J. 217 (1994).
- 25In that research, I answer the following questions: whether Black scholars are cited by the most prominent scholars, and whether the work of Black scholars is not reproduced or acknowledged in leading casebooks.
- 26See generally Yussuf Naim Kly, International Law and the Black Minority in the U.S. (1985).
- 27See generally A Popular Guide to Minority Rights (Yussuf Naim Kly ed., 1995).
- 28Just because a scholar is Black does not mean that they represent Black people or, for that reason, all Black people. See Olúfémi O. Táíwò, Being-in-the-Room Privilege: Elite Capture and Epistemic Deference, 108 The Philosopher 61 (2020) (writing about “standpoint philosophy”).
- 29The Richardson Report, supra note 11, at 8–9.
- 30See, e.g., Eddie R. Cole, The Campus Color Line: College Presidents and the Struggle for Black Freedom (2020).
- 31See Henry J. Richardson III, Letter to the Editor, 94 Am. J. Int’l L. 99, 99 (2000) (expressing disappointment that perspectives of “people of color” were not represented).
- 32Id. For another recounting of this episode, see Woods, supra note 24.
- 33Lori Damrosch, The “American” and the “International” in the American Journal of International Law, 100 Am. J. Int’l L. 2, 14 (2006), notes that from its founding until 1944, AJIL did not have a nationality restriction as to membership. In 1944, the ASIL imposed a requirement that to be elected, an editor had to be American. Id. at 14. Damrosch also notes that the “composition of the board had seen little change in decades: more than half of the members serving in 1944 had been elected between 1910 and 1924 and some went back virtually to the founding in one capacity or another.” Id. at 13. The nationality requirement was removed in 1969. Notably, therefore, while editorial membership was open to non-Americans for most of AJIL’s history, no African American was elected until 2014. As Damrosch notes, diversity was understood as “either electing a larger proportion of members with a non-U.S. affiliation or … creating a separate category of foreign editors.” Id. at 14. Diversity, it seems, was never understood as including domestic minorities such as African Americans.
- 34Id. at 17.
- 35Richardson, African Americans and International Law: For Professor Goler Teal Butcher, with Appreciation, supra note 24, at 221.
- 36As Richardson argues, including “international lawyers of color to the profession is tantamount to including non-Eurocentric and non-establishmentarian starting points, procedural emphases, policy perceptions and objectives and theoretical preferences.” Id. at 222.
- 37Id.
- 38Robin D.G. Kelley, Foreword: Why Black Marxism? Why Now xvii, in Cedric J. Robinson, The Making of the Black Radical Tradition (1983).
- 39Steven O. Roberts et al., Racial Inequality in Psychological Research: Trends of the Past and Recommendations for the Future, 15 Persps. Psych. Sci. 1295 (2020). But see Chris C. Martin, Equal Representation Is Inequality, and Other Fallacies: A Commentary on Roberts Et Al., PsyArXiv (2020), https://psyarxiv.com/zusmd.
- 40Apoorva Mandavilli, Medical Journals Blind to Racism as Health Crisis, Critics Say, N.Y. Times (June 2, 2021), https://perma.cc/VK26-G6GD.
- 41Gathii, supra note 20.
- 42Report of the Ad Hoc Committee on AJIL Governance (2013) (on file with author). That 2013 report noted that as “far as the Committee is aware, an African American has never served on the Journal Board of Editors; moreover, only Asian American has served on the Board. This stands in sharp contrast to the diversity of talent reflected in the Society’s growing membership.” Id. at 5. That report also recommended the amendment of the Lillich Guidelines for selection of articles for publication in AJIL. Id. at 6. Those guidelines, in my view, placed an insuperable barrier to diversifying the Board.
- 43See Minutes, AJIL Board of Editors, Extraordinary Meeting (June 19, 2014) (on file with author) (noting that the AJIL Board had received guidance from the Executive Council to reconsider the slate of candidates “to provide for more diversity . . . by accelerating the planned expansion of board membership so as to provide an opportunity this year for greater gender diversity”).
- 44Bhupinder S. Chimni, International Law and World Order: A Critique of Contemporary Approaches 20 (2017).
- 45Id.
- 46James Thuo Gathii, The Agenda of Third World Approaches to International Law (TWAIL), in International Legal Theory: Foundations and Frontiers (Jeffrey Dunoff & Mark Pollack eds., 2019).
- 47P.M. Brown, Color and Democracy: Colonies and Peace. By W. E. Burghardt DuBois, 39 Am. J. Int’l L. 869, 869 (1945).
- 48It is notable that it is not only in international law scholarship where a focus on race is dismissed as ideologically motivated and subjective. For example, critiques of Derald Wing Sue’s important work on microagressions dismiss them as conceptual nonsense and ignore the relevancy of race. See, e.g., Scott O. Lilienfeld, Microagressions: Strong Claims, Inadequate Evidence, 12 Persps. Psych. Sci. 138 (2017).
- 49Daniel Abebe, Adam Chilton & Tom Ginsburg, The Social Science Approach to International Law, 22 Chi. J. Int’l L. 1, 20 (2021) (arguing that “at the end of the day, some of the critical calls for engagement have tended to place the normative commitments above positive inquiry”). That issues relating to race are judged normatively and therefore differently, rather than objectively, is consistent with the finding that in law firms, Black associates are judged more harshly than their white counterparts by white partners. See Arin N. Reeves, Written in Black & White: Exploring Confirmation Bias in Racialized Perceptions of Writing Skills (2014), https://perma.cc/644T-JHBQ.
- 50For more on anachronism and TWAIL, see Gathii, supra note 21. See also Anne Orford, International Law and the Politics of History (2021).
- 51For more on this, see Adom Getachew, Worldmaking After Empire: The Rise and Fall of Self-Determination (2019). Gethachew studies “the global projects of decolonization Black Anglophone anticolonial critics and nationalists spearheaded in the three decades after the end of the Second World War.” Id. at 2. See also Christopher Geveers, “Unwhitening the World”: Rethinking Race and International Law, 67 UCLA L. Rev. 1652 (2021).
- 52On this, see Jennifer Pitts & Adom Getachew, W.E.B. Du Bois’s International Writings (forthcoming 2021).
- 53For more on Black traditions of international law, see James T. Gathii, Henry J. Richardson III: The Father of Black Tradition of International Law, 31 Temp. Int’l & Comp. L.J. 325 (2017); Darin E.W. Johnson, How U.S. Civil Rights Leaders’ Human Rights Agenda Shaped the United Nations, 1 Howard Hum. & Civ. Rts. L. Rev. 33 (2017); H. Timothy Lovelace Jr., Making the World in Atlanta’s Image: The Student Nonviolent Coordinating Committee, Morris Abram, and the Legislative History of the United Nations Race Convention, 32 L. & Hist. Rev. 385 (2014); Foreign Policy and the Black (Inter)National (Charles P. Henry ed., 2000); Joyce Elaine King, Education, Research in the Black Liberation: Return What You Learn to the People, 86 J. Negro Educ. 2 (2017).
- 54Edward Said, Orientalism (1978).
For if it is true that no production of knowledge in the human sciences can ever ignore or disclaim its author’s involvement as a human subject in his own circumstances, then it must also be true that for a European or American studying the Orient there can be no disclaiming the maid circumstances of his actuality: that he comes up against the Orient as a European or American first, as an individual second. And to be a European or an American in such a situation is by no means an inert fact. It meant and means being aware, however dimly, that one belongs to a power with definite interests in the Orient, and more important, that one belongs to a part of the earth with a definite history of involvement in the Orient almost since the time of Homer.
Id. at 19. As an editor on AJIL for the last seven years, my personal experience has been that there has been policing of boundaries about what is valuable scholarship and what is not. Scholarship probing or critiquing international law’s complicity in colonialism, slavery, and racism has, in my experience, not been regarded as a valuable type of scholarship.
- 55Id. at 14.
- 56Bederman, supra note 7, at 21.
- 57As noted above, the African American scholar Y.N. Kly published at least two books on this subject.
- 58That argument is made persuasively by Makau w. Mutua, The Ideology of Human Rights, 36 Va. J. Int’l L. 589 (1996).
- 59See James Thuo Gathii, Keynote Address at the 2021 Wisconsin Journal of International Law Symposium: Race, Racism and International Law: A Repudiation of US Exceptionalism (Apr. 8, 2021).
- 60This debate is summarized here: Ingrid B. Wuerth, The Alien Tort Statute and Federal Common Law: A New Approach, 85 Notre Dame L. Rev. 101 (2010). Notably, AJIL’s early focus on federalism as an analogy to international law a century later anchored the revisionist position about the effect of international law within the United States. For this early AJIL focus on US federalism, see Carl Landauer, supra note 6, at 338.
- 61See, e.g., Bederman, supra note 7, at 38 (noting the historical continuation of this theme in the early Cold War period, 1947–1963). In the later Cold War period, 1964–1989, Bederman noted that “the Journal’s preeminence in U.S. constitutional law doctrine and foreign relations law remained unchallenged.” Id. at 43. Further, he notes that in the final years of the Cold War was a “preoccupation with virtually all aspects of the U.S. law of foreign affairs.” Id. at 47.
- 62Damrosch, supra note 33, at 15.
- 63Bederman, supra note 7, at 49.
- 64Id. at 47 (“[O]ne of the signal aspects of [the final years of the Cold War was] the incredible amount devoted to the role of the United Nations (especially the collective security mechanisms of the Security Council). This writing harks back to scholarship about the Hague Peace Conferences and the League in its formative years.”).
- 65Id. at 23.
- 66Id. at 23. Bederman notes that the “first seven volumes of the journal convey an overall impression of almost complete dedication to expounding the virtues and possibilities of institutions of international arbitration.” Id. at 26; see also Landauer, supra note 6, at 337, 340 (also noting that the “particular American investment in ‘assuring the peace of the world’ was a commitment to the development of arbitration [that dated back to] the first International American Conference held in Washington in 1889-90 as a ‘Magna Carta which abolished war and substitutes arbitration between the American Republics’”). Landauer notes that John Bassett Moore, another prominent early member of ASIL and “author of the eight-volume digest of international arbitration[,] was a paid representative of a U.S. based investment company in a case it filed against the Dominican government at a time that Moore was also a paid representative of the State Department and in that role ‘steered the membership on the arbitration panel.’” Landauer, supra note 6, at 344. Thus concludes Landauer, “the international law advocated by US international lawyers was tied to US business interests and there were numerous actual ties between lawyers and those interests.” Id.
- 67Office of the Legal Adviser, U.S. Dep’t of State, https://perma.cc/Z2Y7-XW6B.
- 68Bederman, supra note 7, at 50.
- 69Damrosch, supra note 33, at 18.
- 70See Harold Koh, Keynote Address: The Obama Administration and International Law, 104 Am. Soc’y Int’l L. Proc., 104, 207–08 (2010).
First, I have absolutely extraordinary colleagues at the Legal Adviser’s Office, which we call “L,” which is surely the greatest international law firm in the world. Its numbers include many current lawyers and alumni who are sitting here in the audience, and it is a training ground for America's international lawyers. (To prove that point, could I have a show of hands of how many of you in the audience have worked in L sometime during your careers?) Our 175 lawyers are spread over 24 offices, including four extraordinary career deputies and a Counselor of International Law, nearly all of whom are members of this Society and many of whom you will find speaking on the various panels throughout this Annual Meeting program.
Id. In response, one commentator noted
[Harold Koh’s] keynote address got a few not-buying-it questions from a couple of academics—long may you live, Benjamin Davis and Mary Ellen O’Connell—but this dissonance was washed away by the warm roar of applause at session’s end. A Russian corporate lawyer chum of mine was taken aback by this mellow response to a legal justification for Bush-Cheney policies.
- Chase Madar, How Liberal Law Professors Kill, Counterpunch (May 14, 2010), https://perma.cc/S7XF-3UQ4;see also Michael P. Scharf & Paul R. Williams, Shaping Foreign Policy in Times of Crisis: The Role of International Law and the State Department Legal Adviser (2010) (discussing the role of the State Department Legal Adviser).
- Landauer, supra note 6, at 329.
- Coates, supra note 3, at 81–82.
- Bederman, supra note 7, at 22.
- Coates, supra note 3, at 80, 83. Notably, Landauer, supra note 6, at 341, notes that the pages of AJIL were not always “entirely copy for the United States,” in a discussion of criticisms leveled against the United States for its hypocrisy of the Drago and Calvo doctrines that featured in the pages of AJIL. Id. at 341, 342.
- Coates, supra note 3, at 67. Corroborating this is another excellent essay on AJIL’s founding by Carl Landauer. Landauer, supra note 6, at 326.
- Landauer, supra note 6, at 327.
- This point is the subject of another essay. Gathii, supra note 59.
- For the same point in another context, see bell hooks, Teaching to Transgress: Education as the Practice of Freedom 12 (1994).
- Gathii, supra note 20.
- The Richardson Report, supra note 11.
- Gathii, supra note 20; see also Tendayi Achiume & Devon W. Carbado, Critical Race Theory Meets Third World Approaches to International Law, 67 UCLA L. Rev. 1462 (2021).
- For example, Justin Desautels-Stein, James Anaya, and Tendayi Achiume organized the “International Law and Racial Justice” workshop at the University of Colorado, Boulder, School of Law in August 2018. Another symposium in March 2019 titled “Critical Perspectives on Race and Human Rights: Transnational Re-Imaginings” and a workshop immediately thereafter titled “Race, Empire and International Law Workshop,” co-sponsored by UCLA School of Law’s Promise Institute for Human Rights and Critical Race Studies Program, were held under the guidance of Tendayi Achiume and Asli Bali. Following those events, in January 2020, the UCLA Law Review Symposium, entitled “Transnational Legal Discourse on Race and Empire,” was held. For the introduction to that symposium, see Tendayi Achiume and Asli Bali, Race and Empire: Legal Theory Within, Through and Across National Borders 67 UCLA L. Rev. 1386 (2021).
- Established under the ASIL Honorary Presidency of Judge Gabrielle Kirk McDonald, BASIL’s goals include (1) increasing the number and influence of Blacks within ASIL, and (2) strengthening and affirming the role of Black international lawyers, jurists, and academics in the United States. See Letter from BASIL Exec. Comm. to the AJIL Co-Editors in Chief (Oct. 5, 2020) [hereinafter BASIL Letter] (on file with author).
- See id.
- Id. at 2–3.
- Email from AJIL Editors in Chief (Dec. 3, 2020) (on file with author).
- BASIL Letter, supra note 83, at 3.
- Am. J. Int’l Law, Report of the AJIL Ad Hoc Diversity Committee 5–6 (2021) (on file with author).
- The two African American female editors elected were Adrien Katherine Wing and Tendayi Achiume. The first scholar of indigenous descent, elected on the board on the same day, March 19, 2021, was James Anaya. See James Thuo Gathii (@JTGathii), Twitter (Mar. 19, 2021, 3:39 PM), https://twitter.com/JTGathii/status/1373011376420106241.
- For a sampling of such scholarship, see the TWAIL bibliography attached to my 2020 ASIL Grotius Lecture. James Thuo Gathii, The Promise of International Law: A Third World View (Including a TWAIL Bibliography 1996–2019 as an Appendix) 114 Am. Soc’y Int’l L. Proc. 165 (2021), https://perma.cc/CL73-VM3F.
- Black Lives Matter, EJIL: Talk!, https://perma.cc/6HS2-KP8A.
- Maryam Jamshidi & Emily Berman, Embracing Diversity and Critical Perspectives in National Security Law, Just Security (Oct. 30, 2020), https://perma.cc/42L7-BWFX.
- 71Chase Madar, How Liberal Law Professors Kill, Counterpunch (May 14, 2010), https://perma.cc/S7XF-3UQ4;see also Michael P. Scharf & Paul R. Williams, Shaping Foreign Policy in Times of Crisis: The Role of International Law and the State Department Legal Adviser (2010) (discussing the role of the State Department Legal Adviser).
- 72Landauer, supra note 6, at 329.
- 73Coates, supra note 3, at 81–82.
- 74Bederman, supra note 7, at 22.
- 75Coates, supra note 3, at 80, 83. Notably, Landauer, supra note 6, at 341, notes that the pages of AJIL were not always “entirely copy for the United States,” in a discussion of criticisms leveled against the United States for its hypocrisy of the Drago and Calvo doctrines that featured in the pages of AJIL. Id. at 341, 342.
- 76Coates, supra note 3, at 67. Corroborating this is another excellent essay on AJIL’s founding by Carl Landauer. Landauer, supra note 6, at 326.
- 77Landauer, supra note 6, at 327.
- 78This point is the subject of another essay. Gathii, supra note 59.
- 79For the same point in another context, see bell hooks, Teaching to Transgress: Education as the Practice of Freedom 12 (1994).
- 80Gathii, supra note 20.
- 81The Richardson Report, supra note 11.
- 82Gathii, supra note 20; see also Tendayi Achiume & Devon W. Carbado, Critical Race Theory Meets Third World Approaches to International Law, 67 UCLA L. Rev. 1462 (2021).
- 83For example, Justin Desautels-Stein, James Anaya, and Tendayi Achiume organized the “International Law and Racial Justice” workshop at the University of Colorado, Boulder, School of Law in August 2018. Another symposium in March 2019 titled “Critical Perspectives on Race and Human Rights: Transnational Re-Imaginings” and a workshop immediately thereafter titled “Race, Empire and International Law Workshop,” co-sponsored by UCLA School of Law’s Promise Institute for Human Rights and Critical Race Studies Program, were held under the guidance of Tendayi Achiume and Asli Bali. Following those events, in January 2020, the UCLA Law Review Symposium, entitled “Transnational Legal Discourse on Race and Empire,” was held. For the introduction to that symposium, see Tendayi Achiume and Asli Bali, Race and Empire: Legal Theory Within, Through and Across National Borders 67 UCLA L. Rev. 1386 (2021).
- 84Established under the ASIL Honorary Presidency of Judge Gabrielle Kirk McDonald, BASIL’s goals include (1) increasing the number and influence of Blacks within ASIL, and (2) strengthening and affirming the role of Black international lawyers, jurists, and academics in the United States. See Letter from BASIL Exec. Comm. to the AJIL Co-Editors in Chief (Oct. 5, 2020) [hereinafter BASIL Letter] (on file with author).
- 85See id.
- 86Id. at 2–3.
- 87Email from AJIL Editors in Chief (Dec. 3, 2020) (on file with author).
- 88BASIL Letter, supra note 83, at 3.
- 89Am. J. Int’l Law, Report of the AJIL Ad Hoc Diversity Committee 5–6 (2021) (on file with author).
- 90The two African American female editors elected were Adrien Katherine Wing and Tendayi Achiume. The first scholar of indigenous descent, elected on the board on the same day, March 19, 2021, was James Anaya. See James Thuo Gathii (@JTGathii), Twitter (Mar. 19, 2021, 3:39 PM), https://twitter.com/JTGathii/status/1373011376420106241.
- 91For a sampling of such scholarship, see the TWAIL bibliography attached to my 2020 ASIL Grotius Lecture. James Thuo Gathii, The Promise of International Law: A Third World View (Including a TWAIL Bibliography 1996–2019 as an Appendix) 114 Am. Soc’y Int’l L. Proc. 165 (2021), https://perma.cc/CL73-VM3F.
- 92Black Lives Matter, EJIL: Talk!, https://perma.cc/6HS2-KP8A.