Introduction for Race, Racism, and International Law

INTRODUCTION

DEVON W. CARBADO, KIMBERLÉ WILLIAMS CRENSHAW, JUSTIN DESAUTELS-STEIN, AND CHANTAL THOMAS

In 1973, Derrick Bell published the first edition of his now classic textbook, Race, Racism, and American Law. Sweeping in its historical analysis and doctrinal exegesis, Bell’s book helped set the foundation on which the movement that would become known as Critical Race Theory (CRT) was built. Race, Racism, and American Law, along with the rest of Bell’s oeuvre, encouraged an emerging cohort of critical thinkers to place race at the center of scholarly inquiry. In the context of doing so, Bell challenged not only conservative approaches to race, but also dominant liberal paradigms—and he invited other scholars to do the same. Bell’s “call” in that regard was met with a CRT “response.” Indeed, as Kimberlé Crenshaw, Neil Gotanda, Gary Peller, and Kendall Thomas explain in their seminal text on CRT, the oppositional stance Bell’s scholarship took with respect to racial equality discourses writ large became a point of departure for CRT.¹

From the beginning, CRT’s target was the field of law and legal thought, in part to demonstrate how law constituted, and not merely reflected, racial power.² At the same time, CRT sought to expose a realm of racial power that lay beyond the regulatory boundaries of antidiscrimination law. This “remainder” of racial power was not located in the traditional sites of racial subordination; counterintuitively, it lived instead at the very center of liberal institutions and foundational liberal ideas that were otherwise lined up in favor of “racial reform.” For example, and as Crenshaw and her colleagues note, liberals have long framed racial remediation efforts as “racial preferences.”³ Under this view, policies like affirmative action are necessary to “achieve diversity,” notwithstanding that they are otherwise racially discriminatory.⁴ This “apologetic” approach “testif[ies] to the deeper ways that civil rights reformism has helped to legitimize the very social practices—in employment offices and admissions departments—that were originally targeted for reform.”⁵ Crenshaw and her colleagues rightly contend that by framing affirmative action as a form of discrimination that departs “from otherwise legitimate selection processes, liberal race rhetoric affirms the underlying ideology of just deserts, even as it tolerates limited exceptions to meritocratic mythology.”⁶

Of course, law has never been, and nor should we expect it to ever be, the only means through which to entrench racial hierarchy. Other disciplines certainly naturalize structures of thought and action that constitute patterns of racial domination and subordination.⁷ But at least during the 1980s, law was on the frontlines of retrenchment, in part because the relationship between losing particular legal battles and suffering particular material losses was readily visible.

Yet the high visibility of law as a domain for staging a racial critique was perhaps also due to law’s putatively apolitical status and the corresponding claim that, as a modality of thought, “reason” could distinguish “truth” from “ideology.” CRT vigorously contested these ideas.⁸ That contestation was a part of a broader claim about the distribution of racial power both in the law broadly speaking, and in academic institutions that researched and taught the law. To wit, no neutral concept of merit justified the lack of professors of color at elite law schools, and no neutral process of legal analysis—which is to say, “reason”—could justify the racialized distribution of power, prestige, and wealth in the United States.

CRT’s illustration of the ways in which both merit and claims to neutrality were racially invested was directly linked to that field’s engagement with “colorblindness” and the “perpetrator perspective,” concepts that collaborated across broad swaths of United States constitutional law to entrench rather than disrupt patterns of racial inequality. Consider first colorblindness, or the notion that race is and/or should be irrelevant to governmental decision-making and in society more generally. In the abstract, there’s nothing per se problematic about that view. But against the backdrop of a nation whose very constitutional foundation was predicated on racism (for example, slavery and dispossession) and whose constitutional principles expressly legitimized racism (for example, Jim Crow racial segregation), colorblindness is not racially neutral; it is a way of turning a blind eye to how race continues to structure our identities, as well as the material conditions of social life. That is why the hegemony of colorblindness in United States law is so troubling. Across multiple doctrinal regimes, colorblindness functions as a juridical mechanism not only to “not see” all the places in which racism resides, but also to render constitutionally suspect efforts to address those manifestations of racism.

As Devon Carbado has argued, part of what is particularly pernicious about colorblindness is that it has helped to create a body of United States constitutional doctrine that treats Black people and racial remediation efforts to address Black subordination as “suspect,” but treats the existence of racial inequality as a natural and ordinary feature of society.⁹ The work colorblindness performs in that regard is one reason that Critical Race Theorists have described the ideology as a disciplinary device that both elides racial inequality and restricts or prohibits race-conscious civil rights initiatives to eliminate that inequality.¹⁰

The “perpetrator perspective” compounds that problem.¹¹ To appreciate how, it’s helpful to unpack what we mean by the “perpetrator perspective.” Once again, we turn to Crenshaw and her colleagues’ groundbreaking text for guidance. They write:

The construction of “racism” from what Alan Freeman terms the “perpetrator perspective” restrictively conceived of racism as an intentional, albeit irrational, deviation by a conscious wrongdoer from otherwise neutral, rational, and just ways of distributing jobs, power, prestige, and wealth. The adoption of this perspective allowed a broad cultural mainstream both explicitly to acknowledge the fact of racism and, simultaneously, to insist on its irregular occurrence and limited significance. As Freeman concludes, liberal race reform thus served to legitimize the basic myths of American democracy.¹²

To put what Crenshaw and her colleagues are saying another way, the default under the perpetrator perspective is that, but for a few bigoted individuals (“perpetrators”), the United States is a colorblind society. That is the sense in which colorblindness and the perpetrator perspective are traveling partners or collaborators in an overarching projecting to obscure and entrench extant racial hierarchies.

Still, it would be a mistake to conclude that “colorblindness” and the “perpetrator perspective” are particular instances of an “American exceptionalism” confined to United States constitutional law. Both have analogs that traverse the domestic/international dichotomy. Indeed, part of the project of this volume is to expose and interrogate juridical iterations of “colorblindness” and the “perpetrator perspective” in international law, including in global contestations over the abolition of the slave trade.

A useful starting point for understanding the nexus between colorblindness and slavery is the lyric: “I once was blind, and now I see.” So rings the famous verse of the hymn “Amazing Grace.” Penned by John Newton, a former trafficker in enslaved persons who later renounced the slave trade and became an abolitionist, the hymn became one of the great civil rights anthems of the twentieth century.¹³ For Newton, “blindness” was a condition that allowed the participation in and profit from the slave trade by himself and so many others who, “Christians although we are called, . . . exceed in wickedness all the heathen nations that ever existed upon the earth.”¹⁴

In considering the role of “blindness” in facilitating the slave trade, it is important first to establish the centrality of the slave trade, and the broader age of European imperial conquest, to creating the world as we know it today. Slavery wasn’t just a “peculiar institution”¹⁵ that took away people’s rights and “propertized” them, to borrow from Cheryl Harris.¹⁶ Slavery was also a critical component of multiple systems of moving people, goods, and capital through global mechanisms of resource extraction and commodity production that implicated the intersection of race and empire, wreaking genocide, dispossession, and dehumanization in their wake. These globalized matrices of subordination required a vast set of legal frameworks that both traded on and transcended domestic juridical structures.

Traditional historical narratives rarely represent slavery in this way. Instead, they portray the global transformations wrought by industrialization and modernization as phenomena that emanated from the global North outward. On such accounts, the practices of slavery and colonialism represented unfortunate backward-looking vestiges of pre-modern or feudal sensibilities. Contemporary social histories, however, increasingly articulate a different story. Central to that story is an account of the pivotal role that racialized global extraction and exploitation played in fueling the rise of modernity. In this telling, global racial domination constituted one of the processes through which modernity came into being.

Returning to the metaphor of blindness, the role of blindness in allowing the slave trade to persist, in the singular telling of the hymn noted above, deserves our contemplation for at least three reasons. First, “blindness” is celebrated as one of the great tropes of justice in liberal legality—and certainly the dominant juridical racial trope in United States constitutional law. Second, interrogating “blindness” in relationship to slavery suggests how the metaphor functions as a technique for denying, disavowing, and disattending a crucial driver of capitalism and empire. And third, marking the role “blindness” performed in the legitimation of the slave trade suggests that “blindness” is potentially a productive on-ramp scholars can take to examine how international law collaborates with domestic law to instantiate racial inequality.¹⁷ We elaborate on these points below.

In both the domestic and global arenas, the trope of “colorblindness” has served to legalize various forms of “white ignorance,” in Charles Mills’s formulation,¹⁸ in the dispensation of justice. At the most basic level, colorblindness effectively calls for an intentional perpetuation of ignorance. Indeed, even where a race-conscious understanding is wholly available, colorblindness exhorts that it must be actively rejected. The simultaneous availability—and rejection—of race-consciousness as an intervention is precisely the sense in which racial ignorance and “colorblindness” noxiously reinforce each other, including in the law. Which is to say, the legibility and deployment of colorblindness in law is predicated on a willful ignorance about the role race plays in structuring injustice. Thus, even if one is fully aware of how racial difference shapes social hierarchies, one must proceed “as if” racial difference did not exist. In that sense, colorblindness—within and across national borders—is a foundational legal fiction. That legal fiction renders any form of racial awareness both normatively and juridically suspect.

The role colorblindness plays in the production and legitimization of racial subordination, so powerfully articulated by CRT vis-à-vis US law, also operates, this volume asserts, in the international legal arena. Yet Critical Race Theorists have not fully employed critiques of colorblindness to challenge the racial investments of international law. Indeed, it is fair to say that, by and large, there has been comparatively little CRT engagement of international law, even as that framework might be useful to efforts to expose and disrupt the racialized world international law helps to make and sustain. As Crenshaw and her colleagues observed more than three decades ago, “Critical Race Theory might bring a useful perspective . . . [on the] liberal and left debate in the US over the proliferation of economic, political, social relations across national borders which has come to be known as globalization.”¹⁹ Central to their thinking is the view that the “left-liberal approach to globalization has yet to generate an adequate account of the connections between racial power and political economy in the New World order. Instead, generalized references to the ‘North’ and ‘South’ figure as a metaphorical substitute for serious and sustained attention to the racial and ethnic character of the massive distributive transformations that globalization has set in motion.”²⁰

Needless to say, in offering the foregoing example, Crenshaw and her colleagues did not mean to exhaust the scope of interventions CRT could make in the international arena. Their point was to stress that CRT could be a part of broader efforts to foreground the degree to which globalization has long functioned to create what we call a “racialized world order.” Given CRT’s potential intervention in this context, it is worth pausing to ask why, for the most part, that intervention has not fully materialized.

Part of the explanation might be that the covert elements of the contemporary international racial order are simply more difficult to define than were the overt racisms of the nineteenth and early to mid-twentieth centuries. Motivating this view is that idea that, by the 1960s, and contemporaneously with US civil rights legislation, the international legal system formally prohibited racial discrimination and formally endorsed racial equality. That shift in legal consciousness, the argument runs, reinforced a tendency to view racism as a problem of individual prejudice, and no longer a problem of the interstate system.²¹ Without controversies like formalized chattel slavery, formalized apartheid, or formalized Jim Crow to organize the field, today’s blend of racism and xenophobia appears too vague, too “amorphous” to serve as predicate for a robust racial engagement with international law.

Though the preceding explanation is not without merit, it might prove too much. After all, one of CRT’s aims is to expose the places in law—outside of explicitly formalized racial regimes—where racism performs its subordinating (and superordinating) work. That effort includes illustrating how systems of putative formal legal equality entrench racial inequality. Indeed, it is precisely CRT’s investment in that unmasking project that is the basis for its critique of the “perpetrator perspective,” a perspective that, as we have already discussed, obscures the many layers of structural racism.

A second possible explanation pertains to an ongoing preference in international legal theory, and even within its more critical strands, to focus on ethnicity, language, religion, or culture as bases for the colonial encounter and as sites for exposing and interrogating domination and subordination, rather than race.²² The emphasis on ethnoculture instead of racism might in turn rest on the premise—and it is a correct premise—that race is not biologically determined but rather a function of a number of social processes of which culture and ethnicity are the meaningful parts.

Yet CRT challenges precisely the same naturalistic accounts of race. CRT has long argued that the social constructedness of race does not render it any less socially material. From a CRT perspective, eliding a racial analysis in favor of a focus on ethnicity or culture treats race as an epiphenomenon to culture and ethnicity in ways that promote the idea that problems of race ought to be solved through the prism of the latter two social formations. Such an approach not only obscures how ethnicity and culture are themselves socially constructed and contingent, but also the ways in which these formations are intertwined and should thus be analyzed through an intersectional framework.

Perhaps a third explanation for CRT’s minimal engagement with the international arena is the rise of what has since become known as anti-essentialism. As Crenshaw and her colleagues noted early on, this critique emerged most forcefully in response to legal scholar Patricia Williams’s now-classic account of being racially profiled “shopping while Black” in New York.²³ Critics challenged the frame of race as a container for the story, querying how “race” could possibly hold together the account of an elite African American woman’s encounter at a swanky New York store with, say, an everyday encounter of an Indian woman in New Delhi.²⁴ Packaged within this claim was the idea that for race to have any explanatory force in the context in which it was invoked, it should presumably find a fixed expression across space and time.

The problem of essentialism in domestic debates about race could explain the limited application of CRT to international law discourses. For if it seemed mistaken to “essentialize” or “totalize” race and racism across various lines of difference within the United States, how much more so if we begin to look at racism as a problem stretching across the world of international law?

But here, too, one might question the power of this “anti-essential” explanation. Thick debates developed in CRT about how to manage the essentialism critique so as not to jettison altogether the notion of group formation as a basis for both naming and disrupting social (including racial) hierarchies.²⁵ Those debates could be mobilized to position racial formation alongside other highly contingent and socially constructed formations within international law—such as the nation-state. The point would be that if the state can function as a unit for analysis, a basis for political organization, and a predicate for collective identity, why not race?

A final plausible reason for the absence of robust CRT engagements with international law could derive from the currency of international law’s somewhat self-congratulatory idealism, which extends to pronouncements of racial egalitarianism. From the international abolition of the slave trade, to the adoption of the 1964 treaty against racial discrimination, to various instrumentalities against racism and xenophobia in the present-day context, international law has presented itself as being on the right side of history, and as a harbinger of human rights. This view provides at least a partial explanation for why international law functions as the juridical archive to which people turn as a resource for contesting domestic expressions of racial oppression.²⁶

Yet the reality of international law is decidedly more complex. International law has not only failed to displace powerful structures of racial subordination, but also fallen short of producing a full analysis of how that subordination persists. This shortcoming renders the field a target of opportunity for, not a barrier to, a race-conscious engagement.

Whatever the reason for the limited space concerns about “the international” occupy in CRT, it is clear to us that the global arena is a crucial one for taking up questions of race. That observation invites us to ask a corollary question to the one we posed about why Critical Race Theorists have not taken the “global turn:” Why have concerns about race remained relatively marginal to both mainstream and critical theories of international law?

In raising the foregoing question, we are not claiming that international law scholars have neglected concerns about the contemporary reach of colonial domination, for that is clearly not the case. Scholars in the Global South, for example,²⁷ have long challenged the role international law has played in producing and sustaining a global world of “have” and “have not” nations, as well as “have” and “have not” peoples. In particular, those scholars have exposed and critiqued international law’s normalization of empire by, among other things, highlighting how formal equality has functioned in international law to instantiate a range of global inequalities. These critical interventions were important in their own right, but they also helped create conditions of possibility for the emergence of Third World Approaches to International Law, or TWAIL, a formation that, at least to some extent, initially operated vis-à-vis international law the way CRT operates vis-à-vis US constitutional and antidiscrimination law—as a kind of outsider jurisprudence.

TWAIL developed as a self-identified intellectual formation in the late 1990s, roughly a decade after CRT. Whereas TWAIL focused mostly (though not entirely) on empire, CRT, as already discussed, focused mostly (though not entirely) on race. Thus, while each school of thought built trenchant methods of analyzing each of these forms of oppression—race and empire—the two discussions remained mostly parallel, a parallelism that may reflect aspects of the subordinating discourses in each domain—an American exceptionalism that is less interested in connections between the United States and the rest of the world, and a domestic and international erasure of race from the terms of legal discourse.²⁸

A significant point of departure for TWAIL is the claim that domination was built into the very fabric of international law (which tracks the CRT claim that racial domination was built into the very fabric of US constitutional law). Antony Anghie, for example, advanced this argument by showing how sovereignty, a foundational concept in international law, was promulgated against the backdrop of and acquired legibility through the colonial encounter.²⁹ This assertion upended the typical progressionistic narrative of international law—namely, that Europe developed the concept of sovereignty internally, and then in encounters with other territories discovered other peoples who did not live up to the “standard of civilization” sovereignty presupposed.

Anghie theorized otherwise. In painstaking detail, he demonstrated how the concept of sovereignty was developed as a way of differentiating European peoples from others and thereby justifying domination. Put another way, sovereignty did not always already exist outside of and separate and apart from the globalizing hierarchies the concept helped to create and sustain. Sovereignty came into being through its production and legitimization of those hierarchies.

More generally, TWAIL scholars have been committed to demonstrating how international legal rules simultaneously could claim lofty ideals of sovereign equality and human rights while justifying and reinforcing structures that perpetuated the oppression of colonized peoples. This idea, too, has its corollary in CRT: As we have already observed, lofty ideas such as “due process” and “equal protection” in United States constitutional law have comfortably coexisted with, and perpetuated and justified, the oppression of people of color.

While as a body of work TWAIL did not completely ignore questions of racialization, it is also fair to say that the “race problem” of international law was infrequently theorized. In this sense, the absence of overt reference to race in some of the TWAIL literature mirrored, at least to some extent (though with very different normative sensibilities), the absence of race in international law more generally. We have already provided a partial explanation for this absence/marginalization, including the hegemony of colorblindness in international law discourses, the conceptualization of race as less real and less contingent than other markers of difference, and the dominance of the prejudice model—which is to say, an iteration of the “perpetrator perspective”—in international law. But another explanation that bears articulating pertains to the jurisdictional boundaries of CRT itself.

As we indicated earlier, at its inception, Critical Race Theory was explicitly focused on US systems of racial domination. Indeed, its founders defined CRT as a school of thought that “challenges the ways in which race and racial power are constructed and represented in American legal culture and, more generally, in American legal society as a whole.”³⁰ That framing raises at least a question mark about the extent to which CRT techniques could be applied in the international sphere. Indeed, it is precisely that uncertainty that motivated Ruth Gordon, more than two decades ago, to organize a symposium that set itself the “difficult task of discerning whether CRT can assist in understanding, and possibly transforming, the international system, and ascertaining how an international dimension might enrich the Critical Race critique of race and rights.”³¹

Gordon was clear-eyed about the main features complicating such an inquiry: the question of whether an analysis formulated in the United States context could aptly capture international dynamics; the relative muteness of discourse on racial justice in international law scholarship up to that point; and yet the often striking parallels between the political and economic marginalization of the “colored world” within the US and the “colored world” on the international plane.³²

For many, the connections were importantly illuminated in the context of the struggle against apartheid in South Africa, and for the liberation of Southern Africa more generally. The role of the international legal community, both formally in instruments of the United Nations and decisions of the International Court of Justice, and in broader civil society in the anti-apartheid boycott and sanctions efforts, was crucial in condemning the racial violence of apartheid and in pressing the cause for self-determination. For scholars and activists focused on racial justice in the United States, the parallels between racial segregation in the US and apartheid in South Africa were clear.

Yet questions emerged as to whether a Black American perspective on international law could be said to exist, and what it would entail if so. Hank Richardson answered that question in the affirmative and argued for a robust understanding of this perspective.³³ Richardson’s intervention was predicated on three important sensibilities: (1) that international law should be deployed to support Black Americans’ domestic civil rights claims; (2) that Black Americans’ contestation of US racism should be viewed through the prism of the international law of self-determination, and (3) that Black Americans’ understanding of racial history in the US offered a perspicacious lens not only on the liberation struggles of peoples of color globally, but also on the role international law could play supporting or suppressing those efforts.³⁴ While this book does not internationalize race discourse precisely the way Richardson suggests, it joins Richardson’s project of rejecting hard dichotomies between “the domestic” and “the global” vis-à-vis problems of race and empire. Indeed, central to our book is the view that disrupting the domestic/global dichotomy clears the ground for an understanding of how constructs of race, and the social dynamics of racial valuation and hierarchy, played a significant role in the colonial project and in empire-building more generally.

It bears emphasizing that “modern discourse[es] of racial difference and hierarchy” mediated and obfuscated a transnational and global phenomenon—“the exclusions built into modern notions of citizenship, sovereignty, representation, and the rule of law.”³⁵ Elaborate systems of “racialized classifications” facilitated—within and across nation states—“legally sanctioned regimes of discipline and control.”³⁶ Undergirding the particulars of this global dynamic lay a “racialized concept of the standard of civilization”³⁷ that was normatively white and Western. In that regard, asking the “race question” vis-à-vis the legalization of colonial domination and exploitation opens the door to an exploration of how constructs of racial difference traveled reliably with assertions of cultural difference across and within national boundaries, even as the particulars of racialization varied widely in each context.

Part of the aim of this book is to name the preceding racial realities, excavate their historical underpinnings, and expose their contemporary manifestations. In so doing, Race, Racism, and International Law steps into a space that, by and large, neither CRT scholars nor international law scholars have fully engaged—the racial construction of the global order. In that respect, one might think of this volume as staging a global intervention into CRT and a racial intervention into international law. These interventions will not only reveal the epistemic invisibility of race within international law doctrines and discourses, but will also identify the various mechanisms through which the production of racial ignorance functions as a handmaiden of racial oppression and domination.

Motivating our interventions is the claim that international law has been crucial to the design and enforcement of what Charles Mills called the “racial contract.” As we discussed earlier, part of what Mills means to foreground with the concept of the “racial contract” is the epistemological condition of white ignorance that accompanies structures of white supremacist domination. In the same way that traditional social contract theory provided a heuristic lens through which to distill core political commitments as understood by the foundational philosophers of the liberal age, Mills redeployed the social contract frame to consider the centrality of white supremacy, racial hierarchy, and racial dispossession. Mills asserted that no social contract can accurately describe Western history without accounting for the reality that the traditional Western polity was a “racial polity.” That racial polity was formed either through “white settler states” or through “white presence and colonial rule over existing societies.”³⁸ The latter created conditions of citizenship that depended on a “preliminary conceptual partitioning and corresponding transformation of human populations into ‘white’ and ‘nonwhite.’”³⁹

Yet, the reality of that subordination, and the corresponding social, political, economic, cultural, and legal technologies and institutions of racialized governance through which it was accomplished, has been (and continues to be) overwritten and obscured by a set of ostensibly neutral governing social principles and practices to which Western society nominally adheres. This creates a critical term and condition in Mills’s racial contract—“an agreement to misinterpret the world.” According to Mills:

So here, it could be said, one has an agreement to misinterpret the world. One has to learn to see the world wrongly, but with the assurance that this set of mistaken perceptions will be validated by white epistemic authority. . . . Thus in effect, on matters related to race, the Racial Contract prescribes for its signatories an inverted epistemology, an epistemology of ignorance, a particular pattern of localized and global cognitive dysfunctions . . . producing the ironic outcome that whites will in general be unable to understand the world they themselves have made.⁴⁰

Fundamental to Mills’s formulation, then, is a conceptualization of law as a foundational frame for enforcing a racial contract predicated on a collective agreement among Western states to be ignorant about the very material conditions the racial contract was producing and instantiating—white racial domination. It is that willful ignorance—about the various ideological, discursive, and juridical ways in which racial domination is produced, legitimated, and elided in the global arena—that this volume puts into sharp relief.

Animating Race, Racism, and International Law is the claim that the concept of racial difference sits at the foundation of the legal, political, and social structures of hierarchy that shape our contemporary global order. Cumulatively, the chapters spotlight the historical role race has played in mediating the contradiction between universalistic claims to equality and liberty, on the one hand, and fundamental practices of domination and oppression, on the other. The expansion of the West unfolded in dependence not only on the conquest of other peoples and their lands, but also on the theft of other people’s labor, resources, and their very humanity. Racialization was a critical technique through which all of this was effectuated and legitimized.

Significantly, in describing racialization as a “technique,” we are not saying that, in the global arena, racialization was monolithically expressed across space and time. That was certainly not the case. As will become clear from our summary of the chapters, as in the context of “the domestic,” racialization on the international stage is far from static. It moves back and forth between “text” and “subtext,” between law and culture, between the formal and informal, and between reform and retrenchment.

Race, Racism, and International Law marshals together many of the themes we have rehearsed in this introduction and offers diverse vantage points, case studies, and analytical styles to unpack the stories those themes tell about race, racism, and international law. Together, the chapters illuminate how international law helped to produce a racially hierarchical world order. Many of the chapters foreground how international law performed this work explicitly, including through imperial domination. Others focus on the racially constitutive dimensions of international law. Central to these chapters is the idea that racial categories did not preexist international legal regimes but rather were partially constituted by them through what Chantal Thomas calls “technologies of global economic governance”⁴¹ and Justin Desautels-Stein refers to as structures of ideological production.⁴²

An additional set of chapters explores the historical mechanisms of racialized hierarchy in particular national settings as a way of demonstrating how contemporary international law perpetuates inequality by failing to undo inequalities of the past. And still other chapters make clear that while exposing the failure to undo feature of international law is important, it can also legitimize the idea that the current international legal system is egalitarian and that the problem facing the global order is the effect of historical discrimination and domination. Accordingly, these chapters highlight and contest the “here and now” racial investments of international law.

*   *   *

Many of the ideas these chapters present grew out of a collaborative effort that began in 2018 between UCLA and the University of Colorado, in which Tendayi Achiume and Justin Desautels-Stein organized a conference in Boulder titled “International Law and Racial Justice.” That event was followed two years later by a symposium in Los Angeles titled “Transnational Legal Discourse on Race and Empire,” hosted by Tendayi Achiume and Aslı Bâli, just before COVID arrived and changed the face of collective dialogue. The essays collected in this volume are the fruits of the discussions that have been evolving over the past seven years, and many of the authors have been involved from the start.

The volume is divided into three parts: “Histories and Structures,” “Peoples, Places, Perimeters, and Powers,” and “Critical Race Theory and International Law.” These divisions are not intended to be hard thematic boundaries, but rather soft rubrics to crystallize not only the multiple ways in which “race” and “racism” have functioned as foundational features of international law, but also the role international law has played producing and anchoring both. The chapters included in part I focus primarily on the relationship between international law and the historical development and deployment of racial structures in the global context. Part II gathers a collection of case studies to examine particular manifestations of race and racism in specific fields of international law. Finally, part III foregrounds the question of CRT’s applicability beyond the United States, and not only as a comparative enterprise, but as a distinctive approach to international law and international relations.

Below we offer a summary of the chapters and their relationship to the foregoing themes. Cumulatively, the chapters demonstrate not only how race, racism, and empire have been co-constitutive, but also how a CRT/TWAIL analysis can illuminate that longstanding and intersectional arrangement.

The book opens with a chapter by Tendayi Achiume and Aslı Bâli that explicitly trades on insights from both TWAIL and CRT to explore the international law frameworks Western actors have applied in Libya for more than a decade, including humanitarian law, counter-terrorism, and migration control regimes. They argue that the workings of these international instruments cannot be fully assessed absent an explicit engagement with empire and race. Central to their chapter is an engagement of mainstream and official analyses of NATO’s intervention into Libya. By and large, those analyses described that intervention as one in which humanitarian responders attempted to address a crisis not of their own making. Achiume and Bâli contest that reading by illustrating that a racialized framing of Libya—and its subordination to imperial prerogatives—proved critical to the international governance regimes Western actors mobilized to manage that country and its peoples.

Arnulf Becker Lorca’s chapter tracks the rise of race as an argument in international law. According to Lorca, race as a marker of civilization or the lack thereof helped to cement both Anglo-supremacism vis-à-vis the emerging nations of Latin America and those nations’ suppression of indigenous populations in their territories.⁴³ To tell that story, the chapter retrieves the different ways international law traded on race to manage the Americas. The chapter reveals that the attributed racial character of Latin America did not emerge in a vacuum, but rather against the backdrop of international law’s construction of white, African, and indigenous racial identities.

Frédéric Mégret’s chapter denotes the Haitian Revolution as the original “racial panic” in international law—a generative moment in which the Haitians’ revolutionary claims engendered consolidation of Western powers to mobilize efforts to ensure that the Haitian revolution did not overturn the racial ordering of the world.⁴⁴ Mégret maintains that the perception of the dangers incidental to racially subordinated peoples exercising true sovereignty generated important developments in international law. These include, but are not limited to: the rise of neoliberalism in international economic law, the emergence of the responsibility to protect as a basis for territorial intervention in international humanitarian law, the development of extraterritorial tribunals to adjudicate questions of criminal justice (among other areas of law), the shift from explicitly racialized border control mechanisms to “postracial” ones, and structural changes in international economic law.⁴⁵ According to Mégret, the preceding developments in international law were all designed to manage the threat of individual and collective expressions of non-white sovereignties.

Chris Gevers’s contribution discusses the role international law has played domesticating racial domination.⁴⁶ Gevers employs contestations over South African apartheid as a point of departure to articulate that account. His central claim is that South Africa has operated as both an “exception” to an otherwise raceneutral world order and as a model for how race should be juridically, normatively, and politically managed. Gevers problematizes the precedential role South Africa has played in that regard and urges a re-conceptualization of racial injustice and domination as a “world problem” in which international law is (and has long been) deeply implicated.

Adelle Blackett’s intervention describes CRT as an act of memory. Under this formulation, CRT is constantly in motion as both a framework and a movement that insists on knowing a past that does not and cannot remain in the past. Blackett maintains that because CRT elucidates slavery’s afterlives in ways that challenge both racialization and legal liberalism, it is a productive analytical tool to problematize how the metaphorical deployment of slavery in international law has functioned to erase the Black Atlantic. To concretize her argument, Blackett revisits the League of Nations’ Slavery Convention, which was organized and run primarily by colonial administrators. Not only did those administrators focus their attention largely on practices in “Abyssinia” and Liberia (rather than Europe), they carved out Forced Labor as a matter that should be addressed by the International Labor Organization (ILO) via separate, progressive regulation. In telling this story, Blackett recuperates articulations of anti-Black racism as global (and not simply a domestic) intervention through the figure of W.E.B. Du Bois, whose entreaty to the ILO was unequivocal: No labor would be free until Black labor was free.

Rogers Smith’s contribution rounds out part I. According to Smith, a significant “intellectual challenge” confronting international law theorists today is imagining realizable alternatives to our real world, a world predicated on nation-states having absolute sovereignty, “including plenary power to control migration on any grounds that a nation sees as in its self-interest.” Smith posits this problem as a challenge because “conservative, often authoritarian nationalisms are resurgent in many parts of the world, opposing all movements for constructive transformations in the prevailing nation-state system, including bans on racially biased immigration policies.” Smith’s concern is that efforts to challenge this conservatism often flatten the histories, complexities, experiences, and perspectives of both the colonized and the colonizer in ways that undermine our ability to reimagine and transform the world. The chapter’s injunction is that people seeking to change the current state of international affairs should adopt more nuanced approaches to history and be ready to translate theoretical frameworks like CRT into normative and rhetorical registers that have the capacity to reach multiple and sometimes skeptical audiences.

Part II, “Peoples, Places, Perimeters, and Powers,” opens with a chapter by Adrien Wing. Broadly articulated, Wing’s aim is to employ a Global Critical Race Feminist (GCRF) framework to demonstrate the impact of the COVID pandemic on women of color. In addition to providing an overview of the intersectional impacts of COVID-19, the chapter proposes legal solutions that tap into various dimensions of the international legal apparatus. In trading on the remedial possibilities of international law, Wing is not denying the ongoing ways in which international law instruments are implicated in regimes of racial and gender oppression. Her project is reconstructive: to mobilize an “intersectional praxis” to spotlight and ameliorate the social, economic, and political harms COVID inflicted on women of color across the globe.

Aziza Ahmed’s chapter also centers on the relationship between health-related epidemics and racialized global governance. Ahmed’s specific focus is on a still-underexamined moment of border management that implicates the racial construction of diseases—the detention of Haitians living with HIV in Guantanamo in the 1990s. Drawing explicitly on both CRT and TWAIL, the chapter illustrates how race and otherness were baked into not only how Haitians were imagined, but also how HIV was understood. Ahmed contends that this co-constitutive relationship between disease and race has roots in both colonial history and neocolonial power and provided precisely the kind of normative predicate that justified and normalized the detention of a racially marginalized group.

Matiangai Sirleaf’s chapter engages similar themes, with a particular focus on how questions of global health are connected to and themselves shape concerns about racial inequality. Her chapter surfaces how international law, through both omission and commission, structures and reifies racialized hierarchies of care and concern. Sirleaf explores the connections, legacies, and important disjunctions between tropical medicine and global public health. She argues that the primacy given to “White health” is one of the animating purposes behind the emergence of the global public health regime. “White health,” Sirleaf maintains, is part of a broader problem that she refers to as the “racialization of diseases,” a phenomenon that attaches racial meaning to illnesses based on racial group membership. That racialization, in turn, structures which racial bodies are perceived to be deserving of what forms of health interventions. The chapter demonstrates not only how international law facilitates a racially globalized dispensation of health, but also the role “White health” plays in that arrangement.

Wadie Said’s chapter shifts the site of intervention to international criminal law. But here, too, the concern is with how international law creates juridical economies in which bodies are differentially racially valued. Adopting a “case studies” approach, Said draws a nexus between the differential racialization of “peoples” and the differential applications of international criminal law. Said unpacks the effects of this dynamic in three important contexts: the Special Iraqi Criminal Tribunal’s prosecution of deposed Iraqi President Saddam Hussein; the Special Tribunal for Lebanon’s trial of the murder of former Lebanese Prime Minister Rafik al-Hariri; and the International Criminal Court’s indictment of former Sudanese President Omar al-Bashir. His analysis shows how the legal and ideological justifications for each of these tribunals rested on a dismissal of the validity of the origin states’ legal systems as a basis for dispensing criminal justice. Although the particulars of each context differed and played out in various ways, Said argues that Arab racialization shaped how criminal violence was addressed in each of the preceding settings.

Marissa Jackson Sow continues the theme of racialization in international law, this time to contest the idea that racialization in the international arena is a thing of the past. In her account, international law is a domain in which racialization is actively maintained and reconstituted. To substantiate this claim, Jackson Sow analyzes how the UN system and the international community more generally responded to the plight of refugees from the Ukraine in ways that coded Ukrainians as white. In the context of telling that story, Jackson Sow articulates a broader critique of the racialized structures of international humanitarian law and demonstrates how those structures rest on racial logics of race and colonialization.

Sherally Munshi’s chapter focuses on the relationship between “domestic” law and contemporary manifestations of race and empire. According to Munshi, race, nation, and empire shape contemporary regimes of territorial border governance. Munshi’s chapter unsettles and excavates the normative tenets of border nationalism and demonstrates the work they perform providing the logic for the contemporary immigration controls powerful nation-states so tenaciously apply.⁴⁷ To do so, Munshi offers a history of the O’odham peoples, who inhabit an area that crosses the US–Mexico border, as an example of resistance to the logics of border control and an illustration of the conquest and dispossession those logics can produce. Intertwining histories of “territorial expansion, Indigenous removal, and immigration policies,” Munshi shows how the border supremacy that underwrites expressions of sovereignty in the contemporary moment “leaves wholly unexamined a global racial order shaped by centuries of colonialism and empire.”⁴⁸

The final four chapters of part II explore the intersection of race, political economy, and international governance. How was it, these authors ask, that a global order that permitted human trafficking, and that relied upon forced and exploited labor, could also proclaim itself dedicated to human betterment and salvation? Chantal Thomas’s chapter takes up this question by explicating the political economy of racial governance. Her chapter describes how race was deployed as a technology that helped shape global regimes of commodity production and labor exploitation. The chapter argues that critiques of racial hierarchy should include an analysis of not only the historical contingency and underpinnings of that hierarchy, but also how that hierarchy perpetuates—in “colorblind” terms—materially harmful global law and policy. Such an approach, Thomas reasons, is critical to identifying how a racialized political economy structures contemporary international economic law in ways that protect—in the present—the wealth extraction and dispossession empire effectuated in the past.

Vasuki Nesiah’s contribution focuses on efforts to challenge precisely the dynamics Thomas’s chapter describes.⁴⁹ Her chapter pays particular attention to the resistance those efforts have historically encountered. In Nesiah’s account, interventions to rewrite rules of international law to achieve greater global equity have been both backward-and forward-looking. To illustrate this, Nesiah situates her analysis in the context of examining the New International Economic Order (NIEO), which she describes as an apex of attempts on the part of decolonizing states to re-envision international law in order to advance substantive equality. The chapter details the resistance NIEO encountered and explains how that resistance converged with and was expressed through the rise of neoliberalism. Understood in this way, Nesiah writes, neoliberalism “was not just a set of economic policies that majority white countries advanced; rather, neoliberalism was itself an expression of white supremacy.” According to Nesiah, “the neoliberal marketplace was the final defense against the movement of ‘colored peoples . . . towards Bethlehem’ in greater and greater numbers.”⁵⁰

Akbar Rasulov’s chapter brings a focus to the political economy of knowledge production and, more particularly, the mechanisms through which knowledge production is embedded and transmitted.⁵¹ Rasulov asserts that training in critical methods, as an element of legal education, is available at a small number of globally elite institutions—reproducing a relationship of hegemony to the rest of the world that is reflected in the power structure those methods are designed to expose. This arrangement, Rasulov argues, creates a dilemma for scholars who are situated outside of Anglo-European-Australian hegemony. The dilemma is that these scholars often feel that they must choose between being a “specialist local informant” or a “token other.”⁵² Rasulov’s account of this fraught positionality suggests that the logics of colonization are at play even in projects designed to contest the legacies of colonization. In that sense, the chapter is a reminder that the interplay between racism and international law this volume seeks to contest is not just “out there” in some legal regime or governance policy, but also “in here,” the very spaces in which we are staging our interventions.

Ntina Tzouvala’s chapter closes out part II with another indication that racialization in international law is not an historical relic. Tzouvala offers a bracing critique of how human rights law has been applied in the context of international investment tribunals. Her chapter highlights how these tribunals functioned to protect the property white landowners acquired in the era of colonial expropriation.⁵³ According to Tzouvala, part of what drives this white-centered protectionism is a racial logic that was essential to the entire edifice of colonization—namely, that white property ownership signifies civilization and progress, and non-white property ownership signifies uncivilization and backwardness. The account Tzouvala provides is a compelling illustration of how racism can function to reinforce—and bring forward into the present—the historically marginalizing practices on which race and empire were built.

Part III, “Critical Race Theory and International Law,” includes chapters that directly take up the question of how scholars might mobilize CRT in the global arena. Our starting point is a chapter by Justin Desautels-Stein that follows an intellectual line he associates with the work of Cheryl Harris, Kim Crenshaw, Denise Ferreira da Silva, and Nahum Demetri Chandler. His aim is to shift attention away from the regulatory spaces of the international legal order to the deeper intersection of sovereignty, property, and white supremacy.⁵⁴ More precisely, the chapter explores the structure of racial ideology in international legal discourse, as it developed between the eighteenth and twenty-first centuries, culminating in what he calls “postracial xenophobia.” According to Desautels-Stein, these structures of racial ideology have shored up the sovereign’s right to exclude and at the same time mystified the ways in which international law continues to produce systems of racial hierarchy.

Joel Modiri’s chapter also explicitly engages with CRT, but he does so to contest the tendency on part of some scholars to overly particularize and discipline the potential reach of CRT. The chapter takes the generative relation between the Black Radical Tradition and CRT as a starting point for articulating a “critical race approach to international law” (CRAIL).⁵⁵ Grounded in a globalist, internationalist, transnational vision of the Black radical tradition, Modiri urges a view of CRT that transcends understandings of that framework as relevant only to the United States. To do so, the chapter directly responds to what Modiri calls the “incommensurability thesis” about CRT according to which CRT is “a largely an American import that is, for reasons of history, incompatible with other parts of the Black world.” While acknowledging the real danger of “unidirectional” cultural exchange between Black Americans and, for example, South Africans, the chapter nonetheless argues that CRT is deeply informed by and is an iteration of the Black Radical Tradition. Rearticulating CRT in that way, Modiri contends, clears the ground for a more capacious understanding of CRT that, rather than artificially restricting the application of the theory, would facilitate the entrance of CRT onto the global stage to engage different geopolitical, disciplinary, and political contexts.

In some ways, Mohsen al Attar and Claire Smith’s chapter is an illustration of precisely what Modiri means. Their chapter locates white ignorance as an epistemic feature of international law. The chapter maintains that white ignorance plays an enormously important role absenting concerns about race from international law. Al Attar and Smith view that absence as a “deliberate” choice to “advance . . . an epistemic project,” namely Eurocentrism. Situating racial thinking as a cornerstone of international law, al Attar and Smith argue that far too much of international law scholarship is normatively colonial and far too many international legal thinkers conceal their epistemic racial investments. In addition to exposing these aspects of the international legal order, al Attar and Smith offer analytical means for repudiating them.

Michelle Christian’s chapter describes what she calls a “Critical Race Theory of Global Colorblindness.” In doing so, Christian offers a synthesizing account of how core components of liberal legality were initially used “in conjunction to race to justify an evolving colonial enterprise” that fused together conceptions of legality, civilization, and whiteness.⁵⁶ Christian reasons that this fusion remains a core dimension of international law, albeit in less overt ways. To substantiate her claim, Christian theorizes global colorblindness along the following interrelated axes: (1) racist erasure; (2) the global expression of colorblindness through neoliberal policies and practices; (3) racial interactions that create varying geographic colorblind political cultures; (4) a stable global racial hierarchy; and (5) the authority and currency of white racial knowledge production. The chapter’s takeaway rehearses a central CRT idea about the nexus between colorblindness and the law—namely, that colorblindness functions at the transnational level (and not just the domestic level) to naturalize and solidify the globalization of white racial power.

Kehinde Andrews’s chapter contributes to the growing body of scholarship detailing how foundational universalist conceptions of liberal legality explicitly incorporated racialized exclusion in their logics of universalism.⁵⁷ For example, the work of Immanuel Kant, often understood as a precursor to modern human rights theory, is expressly predicated on racial hierarchy. Andrews contends that Kant articulated a conception of universal equality that positioned peoples racialized as non-white beyond its reach. Contradictions of this sort, Andrews reasons, were also manifested in newly emerging expressions of equality law under English common law. Here, too, Black people were beyond the reach of those equality-conferring structures. According to Andrews, this contradiction—between universalist commitments to equality and legalized forms of inequality—obtains with respect to international law as well. Which is to say, rather than representing a break with the colonial order, international law has merely shifted from being openly imperialistic to being benevolently colonial.

Part III concludes with a chapter by Tendayi Achiume and Devon Carbado, who argue that, for the most part, CRT and TWAIL have existed in separate epistemic universes. The chapter contends that the borders between these two fields are unwarranted. Specifically, Achiume and Carbado articulate six parallel ways in which CRT and TWAIL have exposed and challenged the racial dimensions of United States law and international law, respectively. According to Achiume and Carbado, both CRT scholars and TWAIL scholars have: contested the legalization of white supremacy; marked and problematized the degree to which regimes of inclusion can operate as mechanisms of exclusion; staged important if non-identical critiques of colorblindness; engaged and repudiated neoliberal, racialized claims about the social responsibility and agency of Black people and African nations; confronted perceptions that CRT and TWAIL exist outside the boundaries of the presumptively neutral scholarly conventions of constitutional law and international law; and remained invested in reconstruction and transformation of and within law, while staying cleareyed about the limits and costs of such engagements and the need to effectuate change in other arenas, such as social movements. In many ways, the chapters in this volume track the parallel lines between CRT and TWAIL that Achiume and Carbado describe.

*   *   *

In closing, we should be careful to note that in providing the preceding summary of the chapters that comprise this book, we do not mean to suggest that the chapters cover the entire terrain of race and international law. No single volume could do that, nor was that our aim. In soliciting these very different chapters that traverse very different dimensions of the global landscape, our goal was to construct a space in which to subject international law and its various discourses and logics to a sustained racial critique.

As we have already said and want to repeat here, this racial critique is not intended to be the final word on the matter. On the contrary, notwithstanding the breadth and depth of the chapters and the critical interventions they perform, there’s more that needs to be said. Indeed, one of the reasons we published this volume was precisely to generate more: more interrogations of the elisions of race from international law, more unpacking of the role colorblindness plays in that elision, and more analyses of not only how race and empire—and racism and colonialism—are co-constitutive, but also of the ways in which international law has instantiated that racially hierarchical arrangement.

It bears emphasizing—again—that the racial ordering of the world and its peoples is not a “natural” state of international affairs; it is a geopolitical and legally contingent one. From that vantage point, “First” and “Third” World nations did not exist a priori. Which is another way of saying: “First” and “Third” World nations were not born that way. They were made “First” and “Third” World nations through, among other “structural adjustments,” the conscription of international law to legalize and maintain racial domination. That is the story this volume tells. It is a story in which race and racism—and colonialization and empire—are not peripheral dimensions of international law, but rather defining features of it. Race, Racism, and International Law is our effort to shed light on that enduring reality.

NOTES

1. Kimberlé Crenshaw et al., Critical Race Theory: The Key Writings that Formed the Movement (New York: New Press, 1995), xx.

2. Crenshaw et al., Critical Race Theory, xxv.

3. Crenshaw et al., Critical Race Theory, xv.

4. Crenshaw et al., Critical Race Theory, xv.

5. Crenshaw et al., Critical Race Theory, xv.

6. Crenshaw et al., Critical Race Theory, xv.

7. Kimberlé Crenshaw, Seeing Race Again: Countering Colorblindness Across the Disciplines (Oakland: University of California Press, 2019), 22, 153–54, 267–68.

8. To be sure, there is a rich tradition of ideology-critique in the history of American legal thought that preceded the emergence of Critical Race Theory, and that developed contemporaneously. For discussion, see Justin Desautels-Stein and Akbar Rasulov, “Deep Cuts: Four Critiques of Legal Ideology,” Yale Journal of Law and the Humanities 31, no. 2 (2021): 435.

9. See generally, Devon W. Carbado, “Strict Scrutiny & the Black Body,” UCLA Law Review 69, no. 1 (2022): 2–79.

10. See generally, Devon W. Carbado and Cheryl I. Harris, “The New Racial Preferences,” California Law Review 96, no. 5 (2008): 1139–214; Neil Gotanda, “Our Constitution is Colorblind,” Stanford Law Review 44, no. 1 (1991): 1–68.

11. Alan David Freeman, “Legitimizing Racial Discrimination through Antidiscrimination Law: A Critical Review of Supreme Court Doctrine,” Minnesota Law Review 62, no. 6 (1978): 1049–120; Alan David Freeman, “Antidiscrimination Law: The View From 1989,” Tulane Law Review 64, no. 6 (1989–1990): 1407–42.

12. Crenshaw et al., Critical Race Theory, xiv.

13. “The Creation of ‘Amazing Grace,’” Library of Congress, accessed June 13, 2024, https://www.loc.gov/collections/amazing-grace/articles-and-essays/creat….

14. Joseph Benson, A Sermon, Preached at the Methodist Chapel, in Hull, on Wednesday, the 7th of March, 1798, Being the Day Appointed for a National Fast (Sacramento, CA: Creative Media Partners, LLC, 2018), 21.

15. Joseph E. Inikori, “Atlantic Slavery and the Rise of the Capitalist Global Economy,” Current Anthropology 61, no. S22 (2022): S159–70; Gavin Wright, Slavery and American Economic Development (Louisiana State University Press, 2006).

16. Cheryl I. Harris, “Whiteness as Property,” Harvard Law Review 106, no. 8 (1993): 1707–91.

17. Justin Desautels-Stein, The Right to Exclude: A Critical Race Approach to Sovereignty, Borders, and International Law (New York: Oxford University Press, 2023), 265–312.

18. Crenshaw et al., Critical Race Theory, xxx.

19. Crenshaw et al., Critical Race Theory, xxx.

20. Crenshaw et al., Critical Race Theory, xxx.

21. On the “prejudice approach” associated with international human rights law, see E. Tendayi Achiume, “Beyond Prejudice: Structural Xenophobic Discrimination Against Refugees,” Georgetown Journal of International Law 45, no. 2 (2014): 323–82.

22. Luis Eslava et al., “The Spirit of Bandung,” in Bandung, Global History, and International Law: Critical Pasts and Pending Futures, ed. Luis Eslava et al. (Cambridge University Press, 2017), 3–32.

23. Crenshaw et al., Critical Race Theory, xv–xxxii.

24. Kimberlé Crenshaw, “Twenty Years of Critical Race Theory: Looking Back to Move Forward,” Connecticut Law Review 43, no. 5 (2011): 1294.

25. Devon W. Carbado and Cheryl I. Harris, “Intersectionality at 30: Mapping the Margins of Anti-Essentialism, Intersectionality, and Dominance Theory,” Harvard Law Review 132, no. 8 (2019): 2213–14; Kimberlé Crenshaw, “Close Encounters of Three Kinds: On Teaching Dominance Feminism and Intersectionality,” Tulsa Law Review 46, no. 1 (2010): 180–81.

26. Carol Anderson, Eyes Off the Prize: The United Nations and the African American Struggle for Human Rights (United Kingdom: Cambridge University Press, 2003). In her trenchant critique of the NAACP for not appealing to international human rights law, Anderson fails to include a critique of international human rights and its shortcomings. For more discussion see Chantal Thomas, “Racial Justice and International Law,” in Oxford Handbook of Race and Law in the United States, ed. Khiara Bridges et al. (Oxford University Press, forthcoming), SSRN: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4110161.

27. Antony Anghie, “The Evolution of International Law: Colonial and Postcolonial Realities,” Third World Quarterly 27, no. 5 (2006): 739–53; Christopher Gevers, “Unwhitening the World: Rethinking Race and International Law,” UCLA Law Review 67, no. 6 (2021): 1652–85; James Thuo Gathii, “Imperialism, Colonialism, and International Law,” Buffalo Law Review 54, no. 4 (2007): 1013–66; Aslı U. Bâli and Aziz Rana, “Pax Arabica: Provisional Sovereignty and Intervention in the Arab Uprisings,” California Western International Law Journal 42, no. 2 (2012): 321–52; John Reynolds, Empire, Emergency and International Law (United Kingdom: Cambridge University Press, 2017); Mohammad Shahabuddin, “Minorities and the Making of Postcolonial States in International Law,” TWAILR: REFLECTIONS (May 13, 2020), https://perma.cc/BS3M-9LS7.

28. James Thuo Gathii, “Beyond Color-Blind International Economic Law,” AJIL Unbound, no. 117 (2023): 61–65.

29. Antony Anghie, Imperialism, Sovereignty and the Making of International Law (United Kingdom: Cambridge University Press, 2004).

30. “Critical Race scholarship . . . [is] unified by two common interests. The first is to understand how a regime of white supremacy and its subordination of people of color have been created and maintained in America and, in particular, to examine the relationship between that social structure and professed ideals such as ‘the rule of law’ and ‘equal protection.’ The second is a desire not merely to understand the vexed bond between law and racial power but to change it.” Crenshaw et al., Critical Race Theory, xiii.

31. Ruth Gordon, “Critical Race Theory and International Law: Convergence and Divergence,” Villanova Law Review 45, no. 5 (2000): 829.

32. Gordon, “Critical Race Theory and International Law: Convergence and Divergence,” 829–31.

33. Henry J. Richardson, III, The Origins of African-American Interests in International Law (Durham, NC: Carolina Academic Press, 2008); Henry J. Richardson, III, “Afro-America and International Law,” Black Law Journal 5, no. 2 (1977): 204–7; Henry J. Richardson, III, “Permissible Measures and Obligations for Outside States and Internal Peoples Toward Minority Rule in South Africa,” American Society of International Law Proceedings, no. 80 (1986): 308–10.

34. Richardson, III, The Origins of African-American Interests in International Law; Richardson, III, “Afro-America and International Law,” 204–7; Richardson, III, “Permissible Measures and Obligations,” 308–10.

35. Tayyab Mahmud, “Colonialism and Modern Constructions of Race: A Preliminary Inquiry,” University of Miami Law Review 53, no. 4 (1999): 1219.

36. Mahmud, “Colonialism and Modern Constructions of Race,” 1219; Judith Surkis, Sex, Law, and Sovereignty in French Algeria, 1830–1930 (Ithaca, NY: Cornell University Press, 2019).

37. Ralph Wilde, International Territorial Administration: How Trusteeship and the Civilizing Mission Never Went Away (United Kingdom: OUP Oxford, 2010), 317.

38. Charles W. Mills, The Racial Contract (Ithaca, NY: Cornell University Press, 2014), 12.

39. Mills, The Racial Contract, 13.

40. Mills, The Racial Contract, 18.

41. Chantal Thomas, “Race as a Technology of Global Political Economy,” in Race, Racism and International Law, ed. Devon W. Carbado et al. (Stanford University Press, 2025), 306.

42. Justin Desautels-Stein, “Postracial Xenophobia,” in Race, Racism and International Law, ed. Devon W. Carbado et al. (Stanford University Press, 2025), 383.

43. Arnulf Becker Lorca, “A Racist International Law: Domination and Resistance in the Americas of the Nineteenth Century,” in Race, Racism and International Law, ed. Devon W. Carbado et al. (Stanford University Press, 2025), 45.

44. Frédéric Mégret, “Racial Panics and the Making of (White) International Law,” in Race, Racism and International Law, ed. Devon W. Carbado et al. (Stanford University Press, 2025), 76.

45. Mégret, “Racial Panics and the Making of (White) International Law,” 76.

46. Christopher Gevers, “A ‘World Problem’: Apartheid, International Law, and the Domestication of Race,” in Race, Racism and International Law, ed. Devon W. Carbado et al. (Stanford University Press, 2025), 105.

47. Sherally Munshi, “Unsettling the Border,” in Race, Racism and International Law, ed. Devon W. Carbado et al. (Stanford University Press, 2025), 277.

48. Munshi, “Unsettling the Border,” 277.

49. Vasuki Nesiah, “Barbarians at the Gate: The NIEO and the Stakes of Racial Capitalism,” in Race, Racism and International Law, ed. Devon W. Carbado et al. (Stanford University Press, 2025), 325.

50. Nesiah, “Barbarians at the Gate,” 325.

51. Akbar Rasulov, “Race Consciousness and Contemporary International Law Scholarship: The Political Economy of a Blindspot,” in Race, Racism and International Law, ed. Devon W. Carbado et al. (Stanford University Press, 2025), 338.

52. Rasulov, “Race Consciousness and Contemporary International Law Scholarship,” 338.

53. Ntina Tzouvala, “An Unreliable Friend? Human Rights and the Struggle Against Racial Capitalism,” in Race, Racism and International Law, ed. Devon W. Carbado et al. (Stanford University Press, 2025), 365.

54. Justin Desautels-Stein, “Postracial Xenophobia: An Abbreviated History of Racial Ideology in International Legal Thought,” in Race, Racism and International Law, ed. Devon W. Carbado et al. (Stanford University Press, 2025), 383.

55. Joel Modiri, “Toward a Transnational Critical Race Theory: Black Radicalism Across the Oceans,” in Race, Racism and International Law, ed. Devon W. Carbado et al. (Stanford University Press, 2025), 402.

56. Michelle Christian, “A Critical Race Theory of Global Colorblindness: Racial Ideology and White Supremacy,” in Race, Racism and International Law, ed. Devon W. Carbado et al. (Stanford University Press, 2025), 452.

57. Kehinde Andrews, “The Post-Racial Universalist Framework: Colonial Logic in International Law and Relations,” in Race, Racism and International Law, ed. Devon W. Carbado et al. (Stanford University Press, 2025), 478.