E. Tendayi Achiume
I am grateful to YJIL and LPE for creating a platform for this discussion, which encourages reflection on a topic that is urgent but often treated as marginal. The existing body of critical international legal scholarship on sanctions is fairly small, especially when considered in light of the widespread use of sanctions and their far-reaching, adverse implications for the communities that critical scholarship typically seeks to center. I am an outsider to the sanctions scholarship, and even to the fields of international law that are typically at the center of the sanctions literature. However, this Symposium is an opportunity to reflect on what I am thinking of as the untenability of that outsider status. The range of contributions across the Symposium, including from Special Procedures mandate holders, have encouraged me to consider, for example, the global or transnational racial justice implications of sanctions both within the human rights framework, with its concern for individuals, and beyond it to concern about justice among nations. Analysis of sanctions from a TWAIL perspective, to my mind invites analysis that implicates racial justice as much as it does the traditional framings and frameworks for parsing sanctions. In this brief contribution, I consider the interventions made by Professors Asli Bâli, Vasuki Nesiah, and Ntina Tzouvala and then reflect on TWAIL, LPE and the encounter between the two so expertly staged by this Symposium. I will try to state explicitly some of the ways that this subset of contributions to the Symposium chart a way forward for a TWAIL-LPE approach to international law and sanctions.
Professor Aslı Bâli’s intervention interrogates how coercion comes to be defined in international law, and how colonial domination and the First World/Third World divide materially shaped the sanctions regimes that exist in the present. She offers a counter-hegemonic account of sanctions, underscoring that they constitute “an instrument of the post-colonial arsenal of economic statecraft that epitomized the consequences of an international legal order that validates economic coercion.” She presents sanctions as an instrument of domination—one that is only made possible within a global system where economic arrangements are normatively coded and legally stipulated as non-coercive. She shows how this legal stipulation of the economic as non-coercive is achieved through colonially structured international law-making that remains binding long after international law’s formal repudiation of colonialism. She further notes that “the asymmetries of material power and resource distribution that determine economic power and influence are themselves legacies of enslavement, expropriation, colonialism, and imperialism.” Bâli invites us to consider, for example, how the demands for repair and the kinds of critiques of failure to repair colonial inequity and injustice that are gaining salience in some areas of public international law, have implications for debates about sanctions. Among the contributions made by Bâli’s piece, is making plain additional sites within international law that ought to be central to conceptualization and operationalization of reparatory global justice, sites that are traditionally theorized by legal scholars as beyond the horizon of demands for reparations.
Professor Vasuki Nesiah’s piece makes a similarly important contribution. She emphasizes the beneficiaries of contemporary sanctions regimes, marking an important shift from the more typical focus on those who are most harmed by sanctions. Her piece crystalizes the real winners, while also offering a concrete account of the butterfly effect of sanctions and their unexpected but material reverberations. Professor Ntina Tzouvala’s paper helpfully maps the material differences made by various modes of interconnection and domination, which is a precondition for any kind of reconstructive or abolitionist prescription that may be the ultimate aim. She notes, “the law of state immunity, especially when it comes to central bank assets, is perhaps unique as an international field where US hegemonic power is exercised with very little restraint or fear of reciprocity. What may be possible in realms of economic sanctions that do not rely on the power and reach of the USD, is not possible in this context.” She goes on to highlight that the project, for critical international lawyers is not simply to change the hearts and minds of fellow lawyers on the harms of sanctions, but rather also includes “identifying, critiquing, confronting and ultimately undoing the material structures that give certain states de facto increased law-making power.” Implicitly her contribution reflects on the possibilities for resistance that may be present as a result of inter-imperial rivalry but that are absent in the parts of the global finance system dominated by the U.S. dollar. Work of this sort, that offers a forensic accounting of the specific and material dimensions of contemporary imperial hegemony is crucial.
These posts, and others in this Symposium, offer a means of resetting debates within the sanctions literature—debates that have become “stuck” and are in urgent need of a shake-up. The posts do so by taking up fundamental but often neglected questions such as: what are the conditions, interests, and politics that bring us to the present in which sanctions seek to intervene? What is “the present” and how does the experience of the present differ from orthodox accounts? What are sanctions really, and how do they come to be what they are? What can we see when we disaggregate the “economic” in economic sanctions? What is the reach of sanctions and whom do they serve? The normativity of sanctions—the idea that they are good, precise, and only getting better does a lot of work to naturalize their violence. All the essays in this panel force us to interrogate the empirical, analytical, and ethical claims and assumptions that confer normativity on sanctions. I associate these “unsettling” interventions with both TWAIL and LPE approaches.
From the TWAIL perspective, an encounter with LPE is a helpful reminder of the urgency of attending to the political economy of empire, whether it is colonialism, neocolonialism, or past and present iterations of capitalism. The encounter also provides reminders of the value of methods that take seriously the material dimensions of international legal frameworks, and that the “economic” is a site where inequality and sovereign domination/subordination are perfected. From an LPE perspective, an encounter with TWAIL is a helpful reminder of the transnational and the imperial. There can be no comprehensive analytical, theoretical, and even normative account of U.S. political economy that does not account for the U.S. imperial project beyond its borders. To fail to account for U.S. domination through and across borders risks privileging those within the U.S. borders at the expense of the many outside of its borders on whose suffering U.S. prosperity is predicated.
E. Tendayi Achiume is the Alicia Miñana Professor of Law at UCLA School of Law.
This piece is part of a Symposium on Third World Approaches to International Law & Economic Sanctions.