Revision Hub  /  Module · Public International Law

Critical Perspectives on International Law

Topic 04 Dr Catriona Drew Reading: Anghie (2005); Chimni (2006); Mutua (2001); Koskenniemi (1989/2005); Charlesworth & Chinkin (2000); Marks (2009); Miéville (2005)

Snapshot

The provocation: is international law "constituted through colonialism" (Anghie) or the best available restraint on state power despite imperfect origins (Crawford, Higgins)? TWAIL II reads the dynamic of difference as an active engine, re-emerging through human rights, good governance, R2P; Koskenniemi shows structural oscillation between apology and utopia; Charlesworth/Chinkin/Wright show the public/private boundary excludes gendered violence; Marks/Miéville show "imperfect origins" too gentle — the form itself encodes inequality. Wall (2004) and Israeli Practices (2024, paras 233, 261) show the system can occasionally bind powerful states — when mobilised against. Position: refuse nihilism and celebration; treat international law as Chimni's "fragile protective shield".

1. FRAME — the universalist claim

International law presents itself as universal, equal and neutral: a horizontal regime of co-equal sovereigns applying rules generated by consent. Critical scholarship answers that the self-presentation is descriptively false — and divides over why. TWAIL traces inequality to the colonial encounter that made sovereignty; CLS/NAIL to the indeterminacy of legal argument; feminist scholarship to a public/private boundary that lets gendered violence sit outside the discipline; Marxist scholarship to the commodity-form of legal subjectivity. SOAS rewards critical theory done lawyerly: state the rule (Art 2(1) UN Charter, Art 1(2) self-determination, Barcelona Traction para 33 erga omnes), then read it through the critical lens.

2. EXPLAIN — the four critical schools

2.1 TWAIL — two generations

TWAIL I (1955–80s) is the post-colonial moment: Bandung 1955, Res 1514 (XV) 1960 (Granting of Independence), Res 1803 (XVII) 1962 (Permanent Sovereignty over Natural Resources), Res 3201 (S-VI) 1974 (NIEO) and Res 3281 (XXIX) 1974 (Charter of Economic Rights and Duties of States). The intellectual programme — Anand, T.O. Elias, Bedjaoui's Towards a New International Economic Order (1979) — argues international law's universality has always been parochial and demands a redistributive rewriting. Reformist within the universalist project.

TWAIL II (1990s onwards) is darker. Starting from the NIEO failure, Anghie, Chimni, Mutua, Okafor, Mickelson and Gathii read international law not as imperfectly universal but as a discipline whose form reproduces hierarchy. Chimni's 2006 manifesto is the load-bearing text.

"International law is the principal language in which domination is coming to be expressed in the era of globalization. It is displacing national legal systems in their importance and having an unprecedented impact on the lives of ordinary people."

— B.S. Chimni, "Third World Approaches to International Law: A Manifesto" (2006) 8 ICLR 3, at 3–4.

Chimni's threat: not that international law has failed to globalise but that it has — through TRIPS, IMF/WB conditionality, and "good governance" discourse that recasts the standard of civilisation in administrative form. Yet he refuses pure rejection: "contemporary international law also offers a protective shield, however fragile, to the less powerful States."

Anghie, Imperialism, Sovereignty and the Making of International Law (CUP 2005), supplies the structural argument. Nineteenth-century positivism could not coherently apply sovereignty doctrine to non-European peoples because the doctrine was built on a civilised/uncivilised distinction. The engine is the dynamic of difference: international law generates a gap between West and non-West, proposes itself as the bridge, and in bridging redefines the non-Western polity by Western criteria — discovering a new gap to repeat. Mandates (1919), development (1945), human rights and good governance (1990s), R2P (2001) are iterations of one structure. Sovereignty is not violated by colonialism; it is constituted through it.

Mutua's "Savages, Victims and Saviors" (2001) 42 Harv Int'l LJ 201 supplies the cultural grammar: human rights codes non-Western culture as savage, populations as victims, Western institutions as saviors. Even sympathetic intervention reproduces the asymmetry it claims to dismantle.

2.2 NAIL / CLS — Koskenniemi's indeterminacy

Koskenniemi's From Apology to Utopia (1989; CUP 2005) is the NAIL source text. Legal argument is squeezed between apology (the rule is what states do — then law merely ratifies power) and utopia (the rule is what states ought to do — then it has no purchase on practice). The indeterminacy is structural, not a drafting defect. The Gentle Civilizer of Nations (CUP 2002) adds the disciplinary history: the late-19th-century professionalisation of international law (the Institut de droit international, 1873) coincided with the high colonial moment; the discipline's self-image of progressive humanism is genealogically continuous with the civilising mission. The lesson: structural indeterminacy plus political choice equals professional responsibility.

2.3 Feminist approaches — the boundaries problem

Charlesworth, Chinkin and Wright's "Feminist Approaches to International Law" (1991) 85 AJIL 613 opens the modern programme. The insight is structural: international law's organising distinctions — public/private, state/non-state, peace/war — track a gendered division. The private sphere is where most violence against women occurs and is what international law treats as outside its remit. Charlesworth and Chinkin's The Boundaries of International Law (Manchester UP, 2000) extends the argument across statehood, sources, use of force and human rights.

The boundaries of international law are drawn — between public and private, state and non-state, war and peace — in ways that systematically exclude the experiences and interests of women. To do feminist international law is to ask why those boundaries sit where they do, and what would change if they sat elsewhere.

— Hilary Charlesworth and Christine Chinkin, The Boundaries of International Law (Manchester UP, 2000) (paraphrase).

The Istanbul Convention 2011 is a partial response: domestic and intimate violence treated as a state-obligation matter, with due-diligence duties on private actors. Opuz v Turkey ECtHR (2009) had already moved doctrine that way. Whether this is genuine boundary-shifting or accommodation leaving the architecture intact is contested.

2.4 Marxist / political-economy approaches

Two registers. First, Chimni's globalisation-as-"imperial-global-state" (the IMF/WB/WTO complex). Second, the commodity-form theory in Miéville's Between Equal Rights (Brill, 2005), reviving Pashukanis: the form of legal subjectivity — equal, abstract, exchangeable — is the form of the commodity, generalised to states. Formally equal sovereigns confront each other as commodity-owners in the marketplace; substantive inequality is encoded in the form. "Imperfect origins" is too gentle: the form is the imperfection.

Susan Marks's "False Contingency" (2009) sharpens the method: showing arrangements are contingent is not yet showing they were freely chosen — structural forces (capital, gender, race) constrain alternatives.

Showing that things could have been otherwise is the easy part. The harder question is why what is, is — and the answer lies in social structures whose grip on the present is enduring. Critical scholarship that stops at contingency mistakes a starting point for a destination.

— Susan Marks, "False Contingency" (2009) 62 Current Legal Problems 1 (paraphrase).

3. Key cases & instruments

Anchor abstract critique in named authority. Deploy at least four.

Western Sahara Advisory Opinion [1975] ICJ Rep 12
Holding
Not terra nullius: territories inhabited by peoples having social and political organisation are not so regarded. Legal ties with Morocco and Mauritania existed but did not displace self-determination under Res 1514 (XV).
Critical reading
The Court inverts the colonial-era doctrine but preserves its grammar — the ICJ still adjudicates which peoples count as politically organised. The standard moves from "civilised" to "self-determining"; the assessor stays the same. Anghie's dynamic of difference in operation.
South West Africa (Second Phase) [1966] ICJ Rep 6 — Ethiopia/Liberia v South Africa
Holding
By the President's casting vote (7–7), Ethiopia and Liberia had no legal right or interest in their claim against South Africa's administration of South West Africa under the Mandate. Standing denied; merits never reached.
Critical reading
The case TWAIL I rallied against. Formally correct, politically catastrophic; drove UNGA Res 2145 (XXI) terminating the Mandate. Doctrinal choices have distributive consequences — Marks's "false contingency" at work.
Barcelona Traction [1970] ICJ Rep 3, paras 33–34
Para 33
"An essential distinction should be drawn between the obligations of a State towards the international community as a whole, and those arising vis-à-vis another State... they are obligations erga omnes." Para 34: aggression, genocide, slavery, racial discrimination.
Critical reading
Textual basis for the Crawford defence — international law can bind beyond bilateral consent. But apology/utopia bites: erga omnes is either deduced from practice (what states tolerate) or imposed (who decides?). Operationally thin until The Gambia v Myanmar (2020).
Wall in the Occupied Palestinian Territory Advisory Opinion [2004] ICJ Rep 136
Holding
Wall in the OPT contrary to international law; Israel must cease, dismantle and make reparation. Palestinian self-determination affirmed; settlements breach Art 49(6) Geneva IV. Paras 155–159: erga omnes obligations on all states not to recognise or aid the illegal situation.
Critical reading
The Crawford defence at its most plausible — constraints on a powerful state in language Koskenniemi could not call utopian. Compliance negligible. Tests the universalist claim's operative content, not just its vocabulary.
Israeli Practices in the Occupied Palestinian Territory Advisory Opinion, ICJ, 19 July 2024
Para 233
Palestinian self-determination affirmed as jus cogens and an obligation erga omnes; states must not recognise as lawful or render aid in maintaining Israel's unlawful presence in the OPT.
Para 261
Israel's continued presence in the OPT is unlawful; Israel must bring it to an end as rapidly as possible.
Critical reading
The most far-reaching ICJ pronouncement on a long-running occupation. The Court did the doctrinal work; whether political organs give it operative effect determines outcome. This is Chimni's "fragile protective shield" in action.

4. CRITIQUE — sovereignty, rights, gender, capital

Cluster the critiques. Each lens reads a different doctrinal site.

  1. Sovereignty (Anghie). The dynamic of difference recurs through human-rights conditionality, the trusteeship-to-development pipeline, structural adjustment, R2P, "fragile states". Western Sahara inverts terra nullius while preserving the apparatus that decides which peoples count.
  2. Rights (Mutua, Chimni). The rights vocabulary encodes savages-victims-saviours; Chimni adds that it privileges civil/political over social/economic and licenses the internationalisation of property rights via TRIPS.
  3. Indeterminacy (Koskenniemi). Doctrine cannot do the determinative work it claims. The professional question is "which argument am I making and why?" — without responsibility, indeterminacy collapses into the gentle civiliser's complacency.
  4. Boundaries (Charlesworth/Chinkin/Wright). Public/private, state/non-state, peace/war are gendered. Istanbul 2011 and Opuz 2009 push due-diligence into the private sphere but leave the architecture intact.
  5. Form (Miéville, Marks). Formal equality of states is the substantive inequality. Marks's "false contingency" closes the loop: show what would have to change for arrangements to be otherwise.

5. EVALUATE — Anghie v Crawford

Hold two anchors in tension. Anghie's constitutive claim: international law is constituted through colonialism, not contaminated by it. Crawford (Brownlie's Principles, 9th edn 2019): the universalist claim is genuine — imperfect, contested, in motion — and the alternative (no law restraining state power, or law openly stratified by race or wealth) is worse. Higgins (Problems and Process, 1994): international law is a continuing process of authoritative decision in which weaker states have used the rules to constrain stronger ones.

Drew rewards the move that uses critique as a lens to read doctrine. Take the 2024 OPT opinion: the dynamic of difference operates (the Court still decides which peoples have valid self-determination claims) and the Crawford position holds (the Court found a powerful state's prolonged occupation unlawful with erga omnes consequences). The readings are not symmetric: Anghie does not need Wall or 2024 to fail — doctrinal successes get metabolised back into the dynamic. Crawford needs them to do operative work, and the compliance gap is a problem on his own terms.

Position: international law is constituted through colonialism in Anghie's strong sense, but is not exhausted by it. The 1966 South West Africa failure and the 2024 Israeli Practices success sit on the same continuum — structurally biased, partially mobilisable. Chimni's formula: refuse legal nihilism, refuse legal celebration, treat the system as a "fragile protective shield" whose deployment is political.

6. Academic voices

"International law has always served the interests of dominant social forces and States... Yet, we need to guard against the trap of legal nihilism through indulging in a general and complete condemnation of contemporary international law."

— B.S. Chimni, "Third World Approaches to International Law: A Manifesto" (2006) 8 ICLR 3, conclusion.

"The grand narrative of human rights contains a subtext that depicts an epochal contest pitting savages, on the one hand, against victims and saviors, on the other."

— Makau Mutua, (2001) 42 Harv Int'l LJ 201, at 201.

The universalist claim of international law is a project — partial, contested, frequently defeated, occasionally vindicated. The alternative is not freedom from it; it is the rule of power without even formal restraint. Critique is indispensable; rejection is irresponsible.

— James Crawford, in Brownlie's Principles of Public International Law (9th edn, OUP 2019) (paraphrase).

7. Common pitfalls

Long political introduction. SOAS penalises it. Open with the doctrinal point; bring Bandung/NIEO in when they do work, e.g. as backdrop to Res 1514 and the Western Sahara reading of self-determination.
Ventriloquising critique. Quoting Anghie or Mutua without engaging the doctrine is performance. Read a specific case (Wall 2004; Israeli Practices 2024) through the critical lens.
Conflating TWAIL I and TWAIL II. TWAIL I (Anand, Bedjaoui) is reformist within the universalist project; TWAIL II (Anghie, Chimni, Mutua) reads the project itself as the problem.
Treating Koskenniemi as a nihilist. Indeterminacy is structural, not "law is nothing"; The Gentle Civilizer closes by recommending a culture of formal commitment despite indeterminacy.
Ignoring the defence. The best critical answers engage Crawford and Higgins; critique is constitutive of any honest description — make that answer, do not assume it.

8. Exam answer skeleton

  1. FRAME. The provocation: universality, equality, neutrality. Answer-line: constituted through colonialism in Anghie's strong sense, yet partially mobilisable in Crawford's sense.
  2. EXPLAIN. Doctrine first — sovereign equality (Art 2(1)), self-determination (Art 1(2), Res 1514, Western Sahara), erga omnes (Barcelona Traction para 33). Then the four schools.
  3. CRITIQUE. Cluster: sovereignty (dynamic of difference), rights (SVS, TRIPS), indeterminacy (apology/utopia), boundaries (public/private), form (commodity-form, false contingency).
  4. EVALUATE. Read South West Africa 1966, Wall 2004 and Israeli Practices 2024 (paras 233, 261) as evidence for both sides at once.
  5. CONCLUDE. Take a position. Chimni's "fragile protective shield": refuse nihilism and celebration; deployment is political.

9. Checklist