Reading Chimni’s International Law and World Order: The Question of Feminism

Note from the Editors:  We conclude 2017 with a roundtable discussion of the second edition of Professor B.S. Chimni’s International Law and World Order: A Critique of Contemporary Approaches.  Given numerous changes that rapidly transpired in the international system since 2016, the roundtable discussion will certainly spur continuing exchanges among scholars, academics, and practitioners on the evolving contours of the international legal system and the art, science, and profession of international law.

In 1993, Professor B.S. Chimni published what Richard Falk described as the “persuasive rehabilitation of Marxist thought as the foundation for a progressive theory of international law”. Almost twenty-five years later, the second edition of International Law and World Order: A Critique of Contemporary Approaches offers us valuable insights not only into the evolution of Chimni’s thought, but also into the evolution of the discipline. Indeed, the structure and the sheer size of the second edition is telling of the flourishing state of heterodox approaches to international law. It is no coincidence that Chimni felt the need to add two new, lengthy chapters on the New Approaches to International Law (NAIL, which he sees as exemplified in the writings of David Kennedy and Martti Koskenniemi, and on Feminist Approaches to International Law (FtAIL), where he focuses primarily on the work of Christine Chinkin and Hilary Charlesworth, and particularly their co-authored, ground-breaking book, The Boundaries of International Law: A Feminist Analysis. Perhaps more fundamentally, when articulating his own Integrated Marxist Approach to International Law (IMAIL), the author gestures toward the need to integrate class, gender and race for a critical project in international law. In this respect, the book at hand does not simply offer an overview of the field, but it also registers and responds to relevant discussions (see here and here) about race, gender and class that are taking place in leftist movements and parties around the world. This is a refreshing development in its own right, since for the best part of the last twenty years references to civil society in international law revolved around Western(ised) and professionalised NGOs (see here and here).

The book at hand is rich and stimulating, not least because of Chimni’s choice to structure it around a diverse range of theories: from classical realism to the transformations of Koskenniemi’s thought and from the writings of Richard Falk to Gadamer’s theory on interpretation. Unsurprisingly, breadth comes at the expense of detailed engagement at points, althoughthis is not necessarily an unwelcome intellectual move, especially in an era of disciplinary fragmentation. In this respect, I sense that it is not the breadth of his account, but rather Chimni’s theoretical and methodological choices that lead to mis-recognitions of the theories under examination and also pose limits to Chimni’s own articulation of IMAIL. Chimni’s integrating process is primarily focused on accumulating additional grounds of oppression besides class (such as gender, race or caste). In this respect, he employs a contextual view that does not “force social experience to fit a privileged category” (p. 503). Even though this is a laudable move both intellectually and politically, it is seriously undermined by the fact that the book offers very little insight on how we should understand these categories and their entanglement both with the capitalist mode of production (CMP) and international law.

Chimni’s engagement with FtAIL is a good example of the merits and shortcomings of the book at hand. Its analysis places the work of Charlesworth and Chinkin at its centre and it offers useful insights on the limitations of their project, which is seen as an example of eclectic liberal feminism (p. 392). Indeed, Chimni rightly points out that international economic law has been strikingly absent from the analysis of the two authors, as have been the economic aspects (or roots) of women’s oppression globally. Similarly, Chimni identifies the difficulties arising from Chinkin and Charleworth’s lack of consideration for imperialism and its destructive effects on the women of the Global South. The author convincingly argues that a more systematic engagement with the substantive and methodological insights of Third World Approaches to International Law (TWAIL) would have enriched and corrected the work of the two legal feminist pioneers and, indeed, would have guarded against the perils of falsely universalising the experiences and, perhaps more fundamentally, the interests of a narrow class of white women located in the Global North. Given the instrumentalisation of gendered oppression for the justification of imperialist policies coupled with liberal feminists’ one-sided emphasis on women’s participation in international legal structures with minimal regard for the impact of these structures on the vast majority of women, Chimni’s remarks are a useful reminder of the perils and limitations of the ways international law can domesticate criticism and even instrumentalise feminism for the reproduction and legitimisation of oppressive structures.

However, Chimni’s approach has severe limitations as well. Notably, two questions that would have helped the reader navigate the rich and stimulating, but occasionally piecemeal, materials are absent from the analysis. First, Chimni does not seem preoccupied with the question of how law, and in this instance international law, contributes to the constitution of categories like class, gender or race and to their mutual entanglement. Indeed, even though the author states that these “oppressions could not be disaggregated” (p. 392), he provides little argumentation to that effect, and particularly argumentation that establishes the role of international law in the construction of such co-constitutive grounds of oppression. This would be a problem for any similar integrating effort, but I suspect that it is more of a problem for anyone who call themselves a Marxist. Indeed, gender and race are used in this book as self-evident analytic categories and little effort is made in articulating a theory of gender and race that is materialist, without being biological. Such an endeavour would require an examination of the historic and contemporary role of international law not only in perpetuating racist or sexist oppression, but in constructing these categories in the first place, in sexing and racialising bodies in particular ways, and creating legal regimes of property, family and political power that create, sustain and reproduce these categories. Indeed, even a cursory reading of the history of international law from Haiti to Siam would have provided Chimni with useful insights about these processes. Writing in this register also necessitates more than just demanding that feminist authors take into account imperialism, that Marxist authors also account for race or that critical race theorists factor class into their analysis. Rather, it necessitates an examination of the capitalist mode of production as the material matrix that produces and gives renewed material reality to these categories and binds them together in historically concrete moments. In this respect, Chimni’s turn to “second wave” feminism and Herbert Marcuse (pp. 401-404) disregards concepts such as performativity, which might be rejected by strands of Marxism or radical feminism as “post-modern”, but which provide some of the most persuasive tools to analyse the role of (international) law in the constitution of categories such as “women” and their subordinated incorporation in regimes of property, trade and (re)production.

The second absent question is that of gender, race or class and international law as an argumentative practice. Indeed, Chimni’s analysis is significantly restricted by the fact that he only focuses on gender as a direct subject of international law, for example in the case of CEDAW. This is contradictory even on Chimni’s own terms, since, following Vasuki Nesiah, he interrogates the possibility of “a feminist approach that is not focused on women alone” (p. 397). However, his own focus on gender as a subject of IL makes him miss or at least radically underestimate the role of gendered tropes and imaginaries for the structure of international legal arguments, as well as overlook feminist legal scholarship that resists these argumentative moves, especially when they are used to facilitate imperial violence. Hence, Chimni’s emphasis on the works of Chinkin and Charlesworth is predicated on this very narrow conception of feminism in international law that he otherwise criticises, and it ends up not only misrepresenting the field, but also limiting his own critical horizon. For example, it is notable that despite his justifiable concerns about the Kosovo intervention and its impact on the international legal order (e.g. pp. 340-341, 346-347), his analysis somehow misses the fact that one of the most forceful critiques of the intervention at the time mobilised precisely feminist theory to interrogate the gendered and racialised narratives in international legal scholarship that discreetly enabled our interpellation as potent, active heroes, or in order words, as masculine subjects. My feeling is that this and other similar omissions are not incidental or simply the outcome of editorial limitations, but rather they reflect Chimni’s lack of consideration for the multiple functions of gender or race for international legal argumentation and structure. In turn, this further challenges Chimni’s choice to centre his engagement with feminism and international law on one book, which is undeniably foundational, but was published almost twenty years ago and does not reflect accurately either the contemporary state of feminism in international law or the contribution of the two authors to the discipline.

These criticisms notwithstanding, the second edition of International Law and World Order is a welcome and valuable intervention both for those of us who share Chimni’s commitment to Marxism, but also for all those who are interested in the contemporary state of heterodox approaches or in the shortcomings, failures and promises of international law as such. For the international lawyers of the future it should be enough to compare this book with its first edition in order to comprehend the fascinating intellectual evolution not only of Professor Chimni, but also of the discipline as a whole.