This Essay takes up Abebe, Chilton, and Ginsburg's invitation to use a social science approach to establish or ascertain some facts about international law scholarship in the United States. The specific research question that this Essay seeks to answer is to what extent scholarship has addressed international law's historical and continuing complicity in producing racial inequality and hierarchy, including slavery, as well as the subjugation and domination of the peoples of the First Nations. To answer this question, this Essay uses the content published in the American Journal of International Law (AJIL) from when it was first published in 1907 to May 2021. It also uses the content published in its sister publication AJIL Unbound from when it was first published in 2014 to May 2021. The most significant finding of this Essay is that only 64, or 1.25%, of 5,109 AJIL documents substantially engaged with race in the body of their texts. In AJIL Unbound, only 11, or 1.94%, of the 568 documents substantially engaged with race in the bodies of their text.
To account for the extremely low number of documents substantially engaging with race in the pages of the leading international law journal, I advance four hypotheses. First, that this absence is a reflection of the conscious exclusion of African Americans in the American Society of International Law in the first six decades of its existence, as the 2020 Richardson Report found. Second, it is the result of the stringent scrutiny race scholarship in international law has faced in AJIL and AJIL Unbound. Third, that the big or defining debates about international law in the United States have focused on issues other than race, and fourth that color-blindness has been the default view of American international law scholarship as represented in the journal.
Ultimately, the point of this Essay is threefold. First, to show that the social science approach that Abebe, Chilton, and Ginsburg advance can be useful to answer questions that critical scholars like myself are interested in. Second, that when this social science approach is applied to answer questions like the one pursued in this Essay the distinction between the neutrality of the scientific methodology of this social scientific approach, on the one hand, and the normativity of critical approaches that Abebe, Chilton, and Ginsburg argue characterizes other approaches, on the other, falls apart. Third, this Essay shows that there is still ample scope for more international law scholarship on race that needs to be taken up not only by scholars of color but by all scholars of international law.
James Thuo Gathii, Studying Race in International Law Scholarship Using a Social Science Approach, 22 CHI. J. INT'l L. 71 (2021).