Racial Capitalism and International Economic Law: Introduction

The premise of this special issue is that while race and racism are central to the constitution of international economic law (IEL), race and racism have seldom been analytical categories for understanding IEL and its operations historically or in the contemporary moment. Racism is often considered to be a cultural or political phenomenon unrelated to the global political economy. Racism is also considered a stranger to IEL. To correct both gaps, this special issue places the intersection between race and political economy at the heart of IEL scholarship and practice. To do so, we invited contributors to adopt racial capitalism as an analytic framework to make the relationship between capitalism, which sits at the heart of IEL, on the one hand, and racial oppression on the other, visible. For us, this is a long overdue project in our discipline. At the same time, we acknowledge that our project draws from existing work on race/ism and the work of international financial institutions, debt, intellectual property law, and international labor law.1 Further, we acknowledge the importance of feminist work in IEL for broadening the scope of engagement and critique, even when not addressing race/ism directly.2 IEL is deeply implicated in how relationships of expropriation, exploitation, and hierarchy along race and ethnicity are produced and in the ways in which some people are subordinated by others through processes of economic extraction and wealth acquisition. We have arrived at this conclusion starting from the assumption that endless accumulation for its own sake is at the heart of capitalism. In addition, it is clear to us that modern capitalism did not transcend racism and its associated legacies of slavery, imperialism, and colonialism as much IEL presumes. Rather, past patterns of direct political subjugation have been transformed to contemporary patterns of over-exploitation, destruction, and abandoned, often carried through and subsequently rendered invisible or are ‘legitimated’ by IEL. We understand racism to refer to relations of domination under which life chances and interests of some peoples are subordinated to life chances and interests of others. From this perspective, racism is not about skin color or merely about prejudice, but rather about the role ‘racial hierarchy and domination have played and plays in shaping and organizing ideas and institutions of global order including slavery, colonialism, empire’3 and even IEL. Racialized hierarchies can then be understood as ‘deep structures’ of Eurocentric development that produce and reproduce colonial notions such as those of non-European/indigenous inferiority in order to justify material (dis)advantage. As one of us has shown elsewhere, Samir Amin’s work has been pivotal in interrogating Eurocentricity and, in particular, how knowledge production presumes a white Western normativity and supremacy in order to justify the unequal development of capitalism and the vast discrepancies that it produces.4 Further, as Siba Grovogui argues, these deep structures construct the West’s intellectual, political, economic, and social practices as superior and White.5 On this account, non-European political, economic, and social practices are conceptualized as inferior, thereby formalizing racially coded and unequal relationships between the West and the non-West, which are often codes for race too. This account of superiority is built on the erasure of the ‘violent history of European imperialism (conquest, slavery, genocide, and land and resource expropriation) and the trope of “civilization” claimed by the West.’6 At the same time, capitalism, and particular neoliberal capitalism, also relies on the same erasure of violence, conquest, and super-exploitation, presenting itself as process of free and rational contracting and exchange.7 To more thoroughly understand the role of IEL in both authorizing and rendering invisible the violence of racial capitalism, we first acknowledge, as Joel Trachtman did a while ago, that there is also no agreement ‘on the theory and methodology of international [economic] law’. Trachtman listed six methodologies in the discipline: (i) doctrinal description, (ii) common law-based search for consistency, (iii) description juxtaposed with unsupported prescription, (iv) critical intellectualism, (v) public choice, and (vi) empirical consequentialism.8 This special issue aims at expanding our understanding of the field, its methodologies, and of acceptable research questions agendas beyond the foregoing approaches. In particular, we have followed B.S. Chimni’s lead in being concerned about the fact that IEL is dominated by a formalist methodology that not only separates the domestic from the international but also fails to examine the impact of this system of law ‘on individuals and groups within nation-states’ and ignores issues of class and gender.9 Therefore, while we take the technicalities of IEL seriously, we are determined not to become absorbed by them. Instead, the essays in this special issue examine how neutral language and technical intricacy contribute to the maldistribution of wealth, power, and life chances along racial lines. At the same time, we are well aware that certain forms of inter-disciplinarity can also serve as apologies for the status quo. For example, approaches to IEL that rely on the rationalism of the contract bargain model borrow insights of human behavior almost exclusively from mainstream economics, while excluding insights about how IEL works from other disciplines such as sociology, political science, history, anthropology, and heterodox political economy. In one of the leading variations of the contract bargain model, rules of IEL are necessary because they are more efficient or superior to the regulatory authority of the state.10 These and related approaches to IEL do not have race as a focal point nor do they adopt a probing stance toward capitalism. From our vantage point, IEL has for the most part remained primarily preoccupied with highly abstract, ‘black letter’ law questions that obscure the role of race and racism in the field. This is a telling silence. This special issue therefore begins to fill that silence and to generate a research agenda that takes racial capitalism within IEL more seriously than has been the case to date. The authors in this special issue borrowed their analysis of racial capitalism from both law and other disciplines as well as from radical anti-racist theorizing.11 At least two variants of racial capitalism influence the authors to this special issue. The first variant is associated with the Black Radical Tradition with roots in the Caribbean and the USA.12 The other variant was first developed by radical opponents of Apartheid in South Africa, who wanted to oppose the separation of race and class in many Marxist accounts and the liberal critique of Apartheid that bracketed questions of political economy.13 This South African variant was therefore developed in direct relation to IEL, but it remains largely unknown within the field. In recovering both these traditions, we seek to respond to Mari Matsuda’s call to create theory out of social coalitions and political struggles in ways that bring closer together recent and past mobilizations for racial justice and IEL scholarship.14 Importantly, the authors of this special journal issue do not assume that racialized hierarchies are exhausted by a white–black paradigm or by any of the various analytic frames or historical traditions of racial capitalism.15 In fact, while the analytic racial capitalism helps to uncover global White supremacy and recovering Black internationalism, it is also evident that it helps us identify entanglements of race, racism, and capitalism that go far beyond this dualism. When DuBois, in his essay the Dawn of Freedom, wrote about the color line, he did not restrict it to a black–white paradigm. In his own words: The problem of the twentieth century is the problem of the color-line-the relation of the darker to the lighter races of men in Asia and Africa, in America and the islands of the sea. Du Bois then went on to note that this problem of the color line was what caused the US civil war.16 In his 1935 book, Black Reconstruction, Du Bois wrote about the ‘dark proletariat’, who he referred to as ‘racialized toilers whose historical presence dislodges the pretension of a universal working-class subject, who is invariably White. Instead, the struggle for freedom and justice begins with the black worker… [For him] the emancipation of labor is the freeing of that basic majority of workers who are yellow, brown and black’.17 In short, racial capitalism does not necessarily hinge on white supremacy or even have to follow pronounced racial lines. As capitalism evolves and new models of accumulation arise, new ways of stratifying and managing populations also emerge. For example, Natsu Taylor Saito’s recent book, Settler Colonialism, Race and the Law, offers a detailed panorama of the political economic underpinnings and legal modalities of the specific forms of the racialization of different groups in the United States.18 For Saito, particular forms of racialization and stereotyping reflect, in the final analysis, the particular way in which different groups were incorporated within US settler capitalism. Often, past patterns of racialization persist to date largely unchanged. However, the analytic of ‘racial capitalism’ also invites us to look for change and transmutation in response to new material realities. In addition, this special issue is also a call to move away from the heavy focus on the Americas, and especially the USA, when discussing racial capitalism. To do so, we take inspiration from both historical and contemporary works. For example, in a forthcoming piece elsewhere, Vincent Wong uses the lens of racial capitalism to explore China’s recent intensification of surveillance, incarceration, and control over Uyghurs and other non-Han native populations in the Xinjiang Uyghur Autonomous Region (XUAR). As Wong shows, as the XUAR has become a key global hub for the Belt and Road initiative, the Han-controlled Chinese government uses anti-Muslim counter-terrorism discourses to justify the expropriation and exploitation of Uyghurs and other non-Han native populations.19 The authors in this special issue are interested both in the transformations wrought by capitalism (such as how profits from the transatlantic slave trade were critical to industrial growth and capitalist ideologies)20 and also in the ways that capitalism constantly changes producing new fault-lines, alliances, and contradictions.21 In doing so, the authors help us to trace how race and racism are part and parcel unacknowledged but key argumentative tropes within IEL. For the authors in this special issue, race and racism are key to understanding the material relations of exploitation and subordination that are constructed and reproduced by IEL. The authors also trace the ways in which capitalism changes have an impact on its articulation with race. They show us what is new and what is constant about neoliberalism as a distinct form of racial capitalism, especially as ruling classes both within and beyond the West have become more diverse in their racial make-up. Further, as the various essays in this special issue show, there are many sites in many different places and contexts where IEL constructs, reproduces, and legitimizes hierarchical racial orders (e.g., by commodifying, appropriating, and/or converting nature, human beings, etc., into commercial assets) in ways that dispossess and exclude some, while enriching others. To highlight the depth and breadth of these entanglements between racial capitalism and IEL, our contributors adopt a wide range of methods, contexts, and subject matters. Drawing from their extensive ethnographic work, Donatella Alessandrini, Johanna del Pilar Cortes-Nieto, Luis Eslava, and Anil Yilmaz Vastardis write about the ‘Dream of Formality’ as one underlining the work of international financial institutions. Focusing on Colombia, the four authors deconstruct the progressivist narrative of gradual transition to formal labor for all by showing that racialized and feminized labor remains overwhelmingly informal. Their emphasis on social reproduction brings together feminist theorizing and the analytic of ‘racial capitalism’ to ask the urgent question of whether ‘[there are] more feasible and desirable ways to support the (re)productive work of informal labour beyond those associated with the dream of formality?’ as it is promoted by the World Bank and the International Monetary Fund.22 The answer is cautious as much as it is hopeful: ‘We believe there are […]. They range from extending unconditional cash transfers […] to articulating the benefits of a universal basic income or services, to demanding locally designed (but publicly funded) jobs in the green and care economies, to requesting support for popular economies and territorial markets’.23 Deepening the debate about racial capitalism in the Americas Ernesto Hernández-López focuses on corn as a site of struggle between the juridical infrastructure of racial capitalism and its detractors. Focusing on the North American Free Trade Agreement and the US Mexico Canada Agreement, Hernández-López uses the struggles over genetically modified corn to argue that IEL is racialized and racializing in a dual manner. First, IEL severely restricts Mexico’s sovereignty. Second, within Mexico, IEL contributes to the impoverishment, displacement, and malnutrition of disproportionately high numbers of Indigenous, mestizo, and rural communities.24 Hernández-López also highlights the role of law as a tool of resistance against racial capitalism. In an illustrating discussion, he revisits the Colectividad del Maíz case in which Mexican courts used the precautionary principle to order Mexico’s government to stop issuing GMO licenses and the subsequent decree (Decreto) that banned GMO corn by 2024. In so doing, Hernández-López powerfully argues that: ‘The Colectividad del Maíz and the Decreto challenge mindsets that lower prices and high-volume corn production are best. They propose justifications influenced by sustainability, food sovereignty, and protect-ing rural labor’.25 No discussion about IEL and racial capitalism would be complete without extensive discussion of labor. In fact, part of our ambition is to question the marginalization of labor within IEL. Our issue features two contributions, one by Adelle Blackett and one by Christopher Gevers, that revisit the question of slavery, forced labor, and the international economic order. Blackett’s contribution invites us to refuse the disappearance of race from contemporary cases that are considered important victories against slavery and forced labor. She offers a careful and innovative reading of the Hacienda Brasil Verde case delivered in by the Inter-American Court of Human Rights in 2016. Blackett critiques the glaring absence of discussion about race/ism, and in particular anti-Black racism, in the Court’s decision, despite the fact that the same decision was alive to the question of poverty as a source of structural discrimination and disadvantage. Her contribution treats Hacienda Brasil Verde as symptomatic of structural shortcomings within the international law of anti-slavery that is unable to repair racial subordination, since it does not even acknowledge it. Returning to the theme of resistance, Blackett powerfully reminds us that: ‘peoples’ ongoing resistance to abject commodification and insistence on being seen and recognized as workers—that is, as humans entitled to social justice in labor market relations—is nothing new: it is central to any emancipatory claim, and integral to the very idea of labor IEL can to as its struggles over slavery are also at the of Christopher both the separation of the question of race/ism from that of slavery and the fact that of international law have colonialism and imperialism from To these gaps, draws from the Black Radical Tradition and, in particular, the works of DuBois, and the structures of racial and economic domination were not only they were historically and This offers insights into and century international legal about In particular, the of that as a for slavery in in the South more into of anti-slavery within the of international In this work offers a not to the of the question of slavery into a of white superiority in ways that obscure the between law, white supremacy and international Our to the of IEL does not stop with international labor and anti-slavery In an important and us to be about the absence of the analytic of racial capitalism from the of as well as about the separation between the of justice and IEL. Focusing on the notions of capitalism’ and the authors a detailed account of the role of as a material of for violence in In particular, and our to the role of South in this but also in and patterns of subjugation and exploitation by In their own words: when the colonial have and racialized become the in as a structural also brings together questions of race, and political economy in his discussion of racial capitalism, and international trade offers a history of the and of the on and its with the material of racial capitalism. powerfully argues that any of the of the on be by that the material and caused to racialized At the same time, far from us about the of direct and by a of property and as the new juridical that racial capitalism in this this highlights the of intellectual property it domestic or to of racial and especially when is into the legal to against to a new of and racially Our to the scope of IEL do not that and approaches are not for the of this by the case of the This the by the to peoples and and how the and the but racialized of and of the from the case as a for uses it as a into the racializing of and of and into how international trade law the of racial capitalism to populations through law and to to economic this White rural and was modified rather than by the and the to control the market in what that have relationships to and on revisits the against as an point for the relationship between international law, race, and against the of IEL as to violence, that violence and are in the of the through the and In particular, argues that whether or international law the and racialization of those populations that the of to the of their In so doing, also invites us to the in our critiques of IEL and focus on those who are and on account of the of race and Our special issue with a detailed of The by uses this as a starting point for on the underpinnings of modern racial capitalism in detailed of the revisits radical and Marxist to examine the and of from the system and of the of more Her account with the that: and class […] are of political and remains a in the of the to from the but from the of the which within a structural not part of our special journal issue, we are also that this issue a by two of direct to our own At the of and International and and International and International Trade and by and that both a in international economic law and international trade and for an economic and the of in the and International Trade are that any of racial capitalism to To this special issue does not the that racial capitalism is a theory nor does it that it is the only critical theory for IEL. The various authors it as both an analytic and a historical This is our is not to how to understand the various of racial rather to how its various can be within the various issues of IEL, as a into how IEL racial capitalism, and to a that is urgent and We the for us to together this special issue and for the support the to all the authors for all the essays and the they in to make this special issue

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