Critical Race Theory: beyond American borders?

A “critical tradition” has been established in international law by various schools of thought that “have attempted to excavate, debunk, and deconstruct the myths of the equality and neutrality in international law.”[1] Despite this fact, scholars have acknowledged a “hole in the fabric:”[2] the discussion and analysis of race within international law.[3] This piece analyzes the application of Critical Race Theory (CRT) beyond American borders through exploring critiques on international law, gaining a brief understanding of CRT, and surveying critiques of and support for its application to international law.

Critiques on international law “. . . unmask the veneer of equality and neutrality . . . to expose international law’s colonial trappings.”[4] “Despite the acceptance of the role of European colonialism in shaping the field, race remains largely unspoken about within the centerground of international law.”[5] One scholar identifies how race within international law has been misread and minimized through the over particularization of race.[6] “Such approaches miss the wood for the trees, in a sense, by failing to view race in structural terms, as part of a ‘multidimensional system of domination’ (political, moral, cultural, economic, and epistemological) for which individual racist ideas, values, and attitudes (racism) are ‘an ideological accompaniment.’”[7] Scholars point to CRT as a way to enrich “the intellectual landscape” of international law.[8]

“[T]he single labeling under the rubric of [CRT] conceals the richness and diversity of the body of work that the label incorporates.”[9] There are significant variations and perspectives within CRT.[10] “The unifying theme is a concern with the legacy of racial subordination in the United States and its reflection in law’s edifice.”[11] “CRT . . . employs multidimensionality and intersectionality to free analysis from the strictures and blindness of single category/identity analysis. It seeks to [consider] many of the variables that create powerlessness, marginalization, debilitating and degrading social hierarchies and exclusion.”[12] “Although [CRT] has its origins in the analysis of the legacy of white racism towards people of African descent, [CRT] has increasingly come to embrace the perspectives of . . . other marginalized . . . groups.”[13] “[CRT] knows no geographic, spatial, or cultural boundaries. Because many of these categories exist in societies outside the United States, it would be useful . . . to study the CRT method and explore what aspects of it might inform”[14] international law.

Critics of the application of CRT beyond American borders argue that “[n]o matter how elaborate [the] analysis of the American milieu may be, it cannot simply be replicated on the international stage.”[15] Further, within international law, “social constructions of race may vary widely . . . depending on the context . . . .”[16] Some scholars have highlighted possible challenges in applying CRT beyond American borders; specifically: “‘the positioning of “minorities” and marginal groups within U.S. society at the “bottom” of critical race theorists would pose different questions regarding the accountability if our “bottom” were perceived by inhabitants of other parts of the world as part of the “top” in the industrialized north.’”[17] Scholars have also pointed to concerns of ethnocentrism in applying CRT beyond American borders.[18]

Despite these concerns, many scholars outline the possible utility in applying CRT beyond American borders. “[CRT] represents ‘an enormous possibility for the fundamental rethinking of international law.’”[19] Some scholars argue that CRT can be used to unmask “international law’s colonial, racist and patriarchal underpinnings” in addition to enriching “the international legal system, by giving a voice to the voiceless and by addressing the conditions of marginality in which much of the developing world is trapped.”[20] These scholars cite various areas of international law in which CRT could make a valuable contribution.[21] Scholars have specifically examined and argued how applying CRT within Europe can create valuable contributions to international law.[22]

Many scholars have critiqued international law for its shallow discussion of race and provided the use of CRT beyond American borders as a way to contribute to, develop, and hopefully improve aspects of international law.

[1] Penelope E. Andrews, Making Room for Critical Race Theory in International Law: Some Practical Pointers, 45 Vill. L. Rev. 855, 877, 878 (2000).

[2] Justin Desautels-Stein, A Prolegomenon to the Study of Racial Ideology in the Era of International Human Rights, 67 UCLA L. Rev. 1536, 1538 (2021).

[3] Id. at 1540.

[4] Andrews, supra note 1, at 858; see also Maku Mutua, Critical Race Theory and International Law: The View of an Insider-Outsider, 45 Vill. L. Rev. 841, 843, 844 (2000).

[5] Christopher Gevers, “Unwhitening the World”: Rethinking Race and International Law, 67 UCLA L. Rev. 1652, 1657 (2021).

[6] Id. at 1660.

[7] Id.

[8] Andrews, supra note 1, at 859.

[9] Id. at 871-72.

[10] Id.

[11] Id.

[12] Mutua, supra note 4, at 848.

[13] Andrews, supra note 1, at 871-72.

[14] Mutua, supra note 4, at 848.

[15] Ruth Gordon, Critical Race Theory and International Law: Convergence and Divergence, 45 Vill. L. Rev. 827, 838 (2000).

[16] Id. at 839.

[17] Andrews, supra note 1, at 876.

[18] See Mathias Möschel, Race in mainland European legal analysis: towards a European critical race theory, 34 Ethnic and Racial Studies 1648, 1660 (2011).

[19] Mutua, supra note 4, at 841.

[20] Andrews, supra note 1, at 857.

[21] See Andrews, supra note 1, at 881-82.

[22] Möschel, supra note 18, at 881-882; see generally Mathias Möschel, Law, lawyers and race: critical race theory from the United States to Europe 59, 69, 70, 71, 72, 101 (Routledge 2014).