One of the first things that struck me when teaching international and foreign law research for the first time was how Western and Eurocentric international law is, from the principles underlying multinational institutions such as the WTO and IMF to the dominant actors in negotiating treaties and setting “international” norms and standards. With the advent of movements such as Black Lives Matter that draw attention to capitalist exploitation and oppression of non-white people and communities, the demands from indigenous populations to have their voices heard, and the current conversations addressing lingering injustices from the colonial and postcolonial eras, it is impossible not to look at the history of law and its current state through the kaleidoscope of oppression, inequality, and injustice.
As teachers, no matter what the subject, it is imperative that we avoid shirking these conversations in our classrooms. After the murder of George Floyd, Brooklyn Law School held a town hall on racism in America during which students challenged professors to do a better job at including in the course curricula discussions about the structural racism pervasive within the subject areas they are teaching. For example, shouldn’t students learn in their property law class about redlining and other discriminatory acts that have made it nearly impossible for blacks to take part in the mid-century home ownership boom in America, resulting in the wealth disparities we see today? Shouldn’t criminal law and procedure examine the racism inherent in our criminal statutes and their enforcement? As the students pointed out, structural and institutional racism permeate all areas of law and we cannot hope to eradicate these inequities without first learning about their existence.
Beyond just learning where to find the law and secondary sources, teaching legal research offers a unique opportunity to help students learn how to critically assess their findings by examining their authority and bias. In international law, the self-interest of nation-states in maintaining or achieving political and economic power inevitably fosters bias in favor of more powerful actors (nation-states and non-nation states). Moreover, much of the current international legal framework is rooted in the colonial period, during which today’s most influential nation-states gained their power through the exploitation of indigenous and non-white populations.
Thus, in teaching international and foreign law research, I have been trying to think of ways to incorporate discussions about structural and institutional racism within the context of researching international law into my course syllabus. Last semester, before the first class, I asked students to read the Introduction to Imperialism, Sovereignty and the Making of International Law, by Antony Anghie, a seminal text exploring the colonialist roots of international law, which we then discuss on the first day of class. To demonstrate how nations’ self-interest in maintaining power and influence might affect the final outcomes of international conventions, I also ask students on the first day of class to search for an article by William Schabas on genocide in Max Planck Encyclopedias and to read the section on cultural genocide. The article notes that cultural genocide (the destruction of the group through cultural means, such as prohibition of language or religion) was highly controversial, and ultimately excluded from the 1948 Genocide Convention. For a thorough discussion on the negotiation and interpretation of the Genocide Convention, see Laurelyn Whitt & Alan W. Clarke, North American Genocides: Indigenous Nations, Settler Colonialism, and International Law (Cambridge Univ. Press 2019). I then ask the students to think about why the concept of cultural genocide was so controversial in the early 20th century and which countries they think objected to it, drawing attention to the assimilation policies towards indigenous populations of some of the objecting countries, such as Canada and the United States. In so doing, I emphasize the importance of understanding the overall economic, social, and political context within which international law is made.
Throughout the course, I try to incorporate current examples of inequities within the context of researching international law. For example, I’ve had students research instances of environmental racism such as the notorious “Cancer Alley” in Louisiana and the destructive oil spills in the Niger Delta, then research potentially applicable international environmental and human rights law or developing law, including the movement to create a crime of ecocide under the Rome Statute. In another exercise, I had students research COVID vaccine distribution and the relevant treaties to address whether international human rights law requires equitable distribution. For students who wish to explore issues of structural racism in more depth, I suggest optional readings such as selected chapters from Settler Colonialism, Race, and the Law: Why Structural Racism Persists by Natsu Taylor Saito. I also encourage students to take the implicit association test at Project Implicit to explore their own implicit biases and to consider how implicit bias might affect policy and law-making on the national and international levels.
My hope is that students leave the class not only with knowledge about how and where to find international law, but also with a more complete picture of how racism, bias, and colonialism are woven into the fabric of international law. Thus, when conducting research on any international or foreign legal issue, they know to look beyond just the law to the undergirding economic and political interests of the actors involved and the historical power structures that persist to this day. The feedback I’ve received from students has been overwhelmingly positive, but I have much to learn on how to incorporate these issues into my class and I would love to hear ideas and suggestions from others on how to address these issues when teaching international and foreign law research.