No abstract

Focusing particularly on the moment of decolonization, in this article I look at the paradoxes attending the endurance of the statist framework in conceptualizing territorial selfdetermination as well as in curtailing it. A range of protagonists in the decolonization drama, from the departing colonial powers to Third World nationalists to international jurists, have all clung to the modern nation-state as the means through which self-determination is to be realized. Against the enduring hold of the state, this article tries to foreground the ways in which the statist paradigm prematurely forecloses the self-determination options available to the nomadic communities of Western Sahara, and cramps debates about boundary and uti possidetis in Burkina Faso and Mali. In this vein the received categories of the territorially bounded state reach into the postcolonial imagination to discipline, codify, and produce 'independence'. At the same time, however, the difficulties confronted by the boundary delimitation process in Burkina Faso and Mali suggest that the reach of the territorially bounded state is limited. It is limited by the sub-national and transnational complexities of people's lives, but also by the indeterminacy of cartographic documentation and the complexities of colonial and postcolonial bureaucracies. Rather, it is argued that international law has a contradictory relationship with decolonization, desiring the self-determination of the former colonies, while also harnessing the decolonization project to fulfil its own desires, 'to reproduce the law's assumptions regarding the ends of freedom'. 1

No abstract

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.

No abstract