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The American Society of International Law (ASIL) is a globally important American professional non-governmental organization, organized by and for international lawyers as a learned society, and influential in its legal interpretations. For its first sixty years, it excluded African Americans. Subsequently, African Americans were allowed incremental but slowly widening participation, though they were still excluded from the American Journal of International Law (AJIL) Board of Editors. Divesting its stock portfolio to oppose apartheid was a reluctant step toward racial justice in 1986. The rise of a new minority-led racial critique of the Society produced, inter alia, the first African American AJIL Board member in 2014, followed by others. It also produced the adoption of the “Richardson Report,” which confirmed the early deliberate African American exclusion, and called for a reparations obligation to Black members. In 2020, new Society statements and priorities toward racial equity and diversity were added to a previous active Black task force (BASIL). However, the Society's transformation toward racial equity will depend upon its committed defiance of the current historic global white nationalist extremism which threatens to penetrate international law in America and the global community. This essay discusses ASIL's racial narratives from its origins of deep racial exclusion, through racial incrementalism to policy changes and reparations obligations toward greater equity, as it now confronts global white identity extremism.
While other scholars have discussed Dr. Pauli Murray's remarkable contributions to race and sex equality law,1 few, if any, have placed her contributions within the context of the broader tradition of human rights law. And yet, she identified herself specifically through this lens, using the terminology and law of human rights, in part shaped by her friendship with First Lady Eleanor Roosevelt, a delegate to the UN Drafting Committee for the Universal Declaration of Human Rights (UDHR).2 This essay addresses a lacuna in legal scholarship by exploring the ways in which Murray's work fits into the Black intellectual tradition concerning the human rights idea. It also seeks to provide a greater understanding concerning contributions to human rights (and more broadly, international law) made by Howard University School of Law, where she attended law school and one of us is on the faculty. Among other linkages, Clarence Clyde Ferguson, a dean of Howard Law School and former ambassador, was the first Black president of the American Society of International Law.
Race, indigeneity, and migration are integrally related in international law. This relationship can be traced to their origins in a legal system dedicated to facilitating European colonialism and imperial expansion. International law has constructed racial difference and deployed racialized hierarchies to determine who would be permitted to migrate to various parts of the world and what their rights or responsibilities would be in those locations, as well as the status of those already living in the territories at issue. Genealogical inquiry makes it clear that the imposition of racialized hierarchies, the construction of indigeneity, and the restrictions placed (or not placed) on migration in international law have been, and continue to be, functions of a colonial world order. This essay begins by acknowledging the colonial roots of contemporary migration patterns, considers how formal decolonization reified arbitrarily imposed states and state borders, and argues that genuine redress has been sidelined by framing colonial dispossession as poverty and underdevelopment. It concludes that, because the system remains structurally dependent upon racism, xenophobia, and the systemic erasure of indigeneity, remediation of these problems will require the genuine decolonization not only of subordinated peoples, but of international law itself.
Harms that arise from climate catastrophes deepen already unbearable forms of racial oppression. Both can be traced to accumulative ways of life that justified slavery and colonialism, which shifted into new forms of hegemony under liberal international law. A growing response has been to demand reparations. However, the meanings of reparations are vast and sometimes counterintuitive. This essay reflects on reparations claims emanating from the Caribbean, as one place where race and ecology converge. The Caribbean was forged by Indigenous genocide, the enslavement of African peoples, and the indentured labor of Asian peoples. Today, descendants in the region face subordination under liberal international law and climate catastrophes. Such conditions reveal that reparations are foremost a horizon of transformation away from accumulative ways of life that spread from Europe to the world, structuring the present reality. “Reparations” also refers to immediate justices that meet the demands of those who are harmed, because this prefigures the horizon of transformation by disrupting imperialism. These qualities dispel racializing critiques from the First World that reparations are irrational, or constitute politics separate from law. Reparations can enact legal relations that are meaningful to those “on the bottom,” and emancipatory for everyone, when communities and social movements define them.
The Marxist tradition is a crucial voice in the global anti-racist movement. Marxists were at the forefront of the anti-colonial and anti-imperialist movements, with those movements taking up Marxist concepts and deploying them to understand capitalism, race, and colonialism. Yet, these Marxist voices did not reflect systematically on international law. This essay attempts to remedy this neglect and understand what anti-racist and Third Worldist Marxists can offer international legal thought. It begins with a discussion of the typical (liberal) approach to racism in international law. It then explores how Marxists have understood the relationship between racism and capitalism, arguing that this fundamentally impacts upon international law. The essay concludes with an exploration of how these dynamics have played out in international law.
This essay makes three claims. First, that the central role of race in international economic law has been erased and much more needs to be done to recover its large footprints in the discipline as well as in the policies and practices that constitute it. Second, that rules of international economic law formally embed racially constructed hierarchies, such as those that subordinate the status of former and current colonies. Further, that this subordination is not merely of the former and current colonies, but also of large swaths of Black and Brown peoples around the world. Third, that international economic law in both the Global North and the Global South has played a key role in the cultural production of racist tropes that justify the continued servitude of the former and current colonies. This subordination ensures that returns to capital serve a small minority of wealthy individuals and corporate entities at the expense of large segments of humanity, particularly Black and Brown peoples.
In 1833, slavery was abolished across the British Empire, but its specter continued to haunt the new labor regimes inaugurated in slavery's wake. While much of the analysis of these dynamics focuses on the triangular trade in the Atlantic, this essay focuses on the Indian Ocean. Slavery was largely replaced by indentured labor in the Indian Ocean world, marking a historically significant shift in the political economy of empire, the legal architecture of labor, and the discourses through which the imperial racial capitalist system was legitimated and contested. In the decades that followed, labor became incorporated into market institutions that continued into the post-colonial era. Yet, today, almost two hundred years later, slavery's spectral presence continues to inhabit international labor policy. I argue that the reference to slavery was incorporated into discourses of protection and free contract in ways that sought to sanitize and rationalize regimes of indenture and wage labor in the Indian Ocean world. Thus, paradoxically, slavery is often invoked in ways that are disconnected from its own material history. This essay seeks to trace the persistence of that double move of invocation and disconnection as itself symptomatic of the past in the present. In the context of the nineteenth century labor regime transitions, we might describe imperialism, humanitarianism, and capitalism as having a Weberian relationship of “elective affinities.” Slavery's haunting of the political and normative imagination of alternative labor systems encapsulated those affinities by fusing the denunciation of slavery with the promise of protection and profit, redeeming humanitarian imperialism and commodified labor.
The history of slavery and international law remains largely unwritten. Aside from Henry Richardson III's magisterial monograph, The Origins of African-American Interests in International Law, and a handful of shorter pieces (many of them recent), few accounts of “slavery [as] a global legal institution” have emerged from within the discipline, in stark and telling contrast to international law's ongoing reckoning with colonialism. What have been produced in increasing abundance—both inside and outside the discipline—are histories of anti-slavery and international law, stories of “valiant battles waged by enlightened and humane Europeans and Americans—usually white men—to liberate the slaves.” The silencing of slavery in accounts of international law's past, and its afterlives in the present, is overdetermined. It has something to do with the prevailing history-making practices of international lawyers and historians; their choices of events, subjects, and structures, which, as Toni Morrison insisted and Richardson illustrated, remain choices. As Michel-Rolph Trouillot has shown, it has a lot to do with the kind of stories that “the West” and its international lawyers, want (and need) to tell (and hear) about themselves. Like slavery itself, these silences have everything to do with race, and the whiteness of the international legal academy. This essay will consider what a history of slavery and international law might look like (or at least what it must take account of) and what the ongoing “impossibility of its telling” reveals about race, racism, and international law.
In 1922, the League of Nations inscribed the goal of establishing a settler colony in Palestine for the Jewish people—in denial of the national self-determination of the Indigenous Arab population—in public international law. The Palestine Mandate juridically erased the national status of the Palestinian people by: (1) framing the Arabs as incapable of self-rule; (2) heightening the significance of establishing a Jewish national home; and (3) distinguishing Palestine from the other Class A mandates for possessing religious significance that exceeded the interests of any single national group. A century later, the still-unresolved “question” of Palestine remains central to struggles for anti-racism and anti-colonialism in international law. This essay revisits two flashpoints in the tangled history of Palestine and international law, where questions of race and racism have been central: first, ongoing debates over the regime and crime of apartheid; and second, the now-repudiated UN General Assembly Resolution 3379, recognizing Zionism as a form of racism and racial discrimination. Both stories demonstrate the importance of understanding race and colonialism as conjoined concepts, neither of which can be properly understood in isolation from the other.
Racial injustice and inequality remain contested internationally, and the United Nations remains a prominent site for this contestation. In this essay, we describe the architecture designated by the United Nations to address racism, racial discrimination, xenophobia, and related intolerance. We highlight recent normative and institutional innovations and their connection with older mechanisms and milestones. From our experience within this architecture, we reflect on shortcomings and dysfunctions that are built into it, and discuss pressing threats and challenges. We highlight the twenty-year-long, unprincipled opposition of members of the Western Europe and Other States Group (WEOG) within the United Nations to the Durban Declaration and Programme of Action (DDPA), which they have used to block progressive efforts to dismantle contemporary and historic racial injustice. We also highlight recent successes within the architecture, noting remarkable, if tenuous, shifts in the normative framing of racism and racial injustice at the United Nations.
With the expansion of European imperialism, public health concerns became globalized, necessitating cooperation with other imperial powers for the treatment and prevention of diseases. This essay traces the role of race and racism in the development of global public health law. It explores the connections, legacies, vestiges, and important disjunctions between tropical medicine and global public health, and considers the primacy given to white health as one of the animating purposes behind the emergence of the global public health regime. The centrality of protecting the health and interests of white people then and now continues to inform the global health agenda. This essay surfaces the role of international law through omission and commission in structuring and reifying racialized hierarchies of care and concern. It concludes that transformational reforms aimed at addressing this legacy are necessary.