Decolonial CIL: TWAIL, Feminism, and an Insurgent Jurisprudence

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.

Introduction to the Symposium on B.S. Chimni, “Customary International Law: A Third World Perspective”

“…Vasuki Nesiah's contribution to the symposium finds strong resonances between Chimni's critique of the formal/material distinction in CIL and feminist critiques of the public/private distinction. 11 Nesiah argues that feminist critiques of the public/private distinction showed how international law privileged formal state practice, which was in effect "men's law," and in so doing unmasked the gendered structures of power embedded in the field. 12 She draws parallels between these feminist insights and the manner in which Chimni's Marxist critique demonstrates how CIL marginalizes and excludes Third World social realities, norms, and practices.…”

“…11 Nesiah argues that feminist critiques of the public/private distinction showed how international law privileged formal state practice, which was in effect "men's law," and in so doing unmasked the gendered structures of power embedded in the field. 12 She draws parallels between these feminist insights and the manner in which Chimni's Marxist critique demonstrates how CIL marginalizes and excludes Third World social realities, norms, and practices. To complement Chimni's invitation to reshape CIL, she invites us to consider three examples that could help to create a new international law.…”

“…These examples, she argues, require forward-looking or "rebel imagination" rather than a simple recounting of neglected customs in the name of inclusion and historical completeness. 14 Last but not least, Anthony Carty situates Chimni's view of CIL in the broader context of his Marxist scholarship on international law. 15 He also maps Chimni's critique of CIL in the context of Marxist debates of international law and Marxist critiques of capitalism.…”

Decolonising the Curriculum in International Law: Entrapments in Praxis and Critical Thought

“…On decolonial theory in international legal praxis, seeAchiume (2019),Barreto (2018),Nesiah (2018) Natarajan et al (2016), Pahuja (2011…”