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Decolonial CIL: TWAIL, Feminism, and an Insurgent Jurisprudence

  • Vasuki Nesiah (a1)
Extract

In advancing a Third World Approaches to International Law (TWAIL) analysis of customary international law (CIL) and its dominant doctrinal conceits, B.S. Chimni shows how the jurisprudence of custom has been co-constitutive with colonization and capitalism. He contends that CIL's most fundamental assumption—the “supposed distinction between ‘formal’ and ‘material’ sources of CIL”—privileges Western states while legitimizing CIL as a neutral and universal body of law. In dialogue with Chimni, this essay extends the conversation in two directions. First, I show that there are important resonances between Chimni's deconstruction of the distinction between “formal” and “material” sources of CIL, and a feminist critique of the public/private distinction in international law. Chimni describes his approach as postmodern. I argue that its analysis of the conceptual architecture of the dominant doctrine and its systematic exclusions is also, at its core, a feminist approach to international law. Second, and inspired by Chimni's critique, I explore insurgent jurisprudential traditions that challenge the hierarchies, inequalities, and biases in received doctrine regarding the sources of CIL. Chimni's decolonial approach acknowledges CIL's imperial past, and prepares the ground for democratizing and pluralizing sources by paying attention to a so-called opinio juris communis that incorporates the interests of those critical of, or oppressed by, the dominant world order. Building on this ground, I draw on the Panchsheel principles, first nations’ conceptions of sovereignty and citizenship, and practices of fugitive freedom by maroon communities to begin to supply content and form to a counterrepertoire of custom.

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This is an Open Access article, distributed under the terms of the Creative Commons Attribution licence (http://creativecommons.org/licenses/by/4.0/), which permits unrestricted re-use, distribution, and reproduction in any medium, provided the original work is properly cited.
References
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1 Chimni finds potential in past efforts to reform CIL (including by the Bolsheviks), but criticizes them for leaving intact the formal/material distinction and its relationship with the imperial and capitalist character of CIL doctrine. B.S. Chimni, Customary International Law: A Third World Perspective, 112 AJIL 1, 44 (2018).

2 Id. at 1. He argues that the “doctrine of CIL was a western construct” and that “its rules came to be derived from western state practice on which the dominant positivist method placed great stress.” Id. at 44.

3 Id. at 46.

4 Hilary Charlesworth et al., Feminist Approaches to International Law, 85 AJIL 613, 644 (1991).

5 Id. at 625-26.

6 Id. at 644.

7 Karen Engle, After the Collapse of the Public/Private Distinction: Strategizing Women's Rights, 25 Stud. Transnat'l Legal Pol'y 143 (1993); Celina Romany, Women as Aliens: A Feminist Critique of the Public/Private Distinction in International Human Rights Law, 6 Harv. Hum. Rts. J. 87 (1993); Symposium, The Public/Private Distinction, 130 U. Pa. L. Rev. 1289 (1982).

9 Alan Freeman & Elizabeth Mensch, The Public-Private Distinction in American Law and Life, 36 Buff. L. Rev. 237 (1987); Ruth E. Gavison, Feminism and the Private-Public Distinction, 45 Stan. L. Rev. 1 (1992).

10 Frances E. Olsen, The Family and the Market, 96 Harv. L. Rev. 1497, 1527 (1983); Tracy E. Higgins, Reviving the Public/Private Distinction in Feminist Theorizing, 75 Chi.-Kent L. Rev. 847 (2000).

11 Charlesworth et al. note that the “Third World critique” may have prepared “the philosophical ground for feminist critiques.” Charlesworth et al., supra note 4, at 644. For Chimni's analyses of the areas of convergence and divergence, see B.S. Chimni, International Law and World Order 358-439 (2d ed., 2017).

12 Charlesworth et al., supra note 4, at 625 n.73 (quoting Western Sahara, Advisory Opinion, 1975 ICJ Rep. 12, 77 (Oct. 16) (Gros, J., sep. op.)).

14 Id. at 16.

15 Chimni, supra note 1, at 1.

16 When the numerical weight of postcolonial states carried the possibility of shaping state practice (such as with the New International Economic Order), the West developed the “persistent objector” doctrine giving countervailing weight to Euro-American dissent and preserving CIL doctrine's undemocratic and imperial character.

17 Hartman, supra note 13, at 16.

18 Anthony Anghie, Bandung and the Origins of Third World Sovereignty, in Bandung, Global History and International Law (Luis Eslava et al. eds., 2017).

19 James Sákéj Youngblood Henderson, The Indigenous Law Foundation of Victorian Treaties, Speech at the University of Alberta (Mar. 2008).

20 Marie Ann Battiste & James (Sa'ke'j) Youngblood Henderson, Protecting Indigenous Knowledge and Heritage: A Global Challenge (2000).

21 Id. at 13.

24 Stefano Harney & Fred Moten, Undercommons (2013).

26 Walter Benjamin, Illuminations (Hannah Arendt ed., 1969).

27 Id. at 391.

29 Romila Thapar, The Past Before Us (1993).

31 Roberto Unger, The Critical Legal Studies Movement (1996).

33 Id. at 2.

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