By Dr Clair Gammage & Dr Amaka Vanni, For and on behalf of the IEL Collective
In 2019, a group of scholars in the discipline of International Economic Law (IEL) launched the IEL Collective to provide a space for critical reflections of the regulation and conduct of states, international organisations and private actors in economic governance within and across state boundaries. International economic law (IEL) as an arena of scholarship, policy and practice has developed exponentially over the past three decades, evolving from a sub-field of public international law into a multi-layered, highly specialised discipline of its own. As a field of study, IEL encompasses a broad range of issues relating to the law, regulation and governance of the global economy, including trade, investment, finance, intellectual property, business regulation, energy and competition law. It is a discipline that intersects with other disciplines, such as international and domestic labour law, human rights, and environment as recognised by the United Nation’s 2030 Agenda for Sustainable Development. However, in the discipline of IEL there remain significant questions over the plurality and diversity of methodologies, voices and viewpoints.
For many scholars, practitioners, teachers and students of IEL, the discipline is constrained by an orthodoxy that structures, produces and reproduces knowledge about the law and the operation of the law without cognisance to the social, cultural, economic, political, geopolitical and historical contexts in which the law is embedded. Importantly, thinking, teaching and doing international economic law without recognition or understanding of these broader structural forces is to confer ‘epistemological privilege’ (Santos, 2014: 152) to sites of knowledge production and to knowledge producers rooted in historical and contemporary asymmetries of power and patriarchy. A core objective of the IEL Collective is to explore how epistemological and methodological diversity in the discipline can contribute towards the development of a more holistic landscape of scholarship on law and the governance of the global economy. As a collective, we aim to stimulate conversations about plurality, representation and criticality in researching, teaching and practising international economic law and spark new conversations about the future of the discipline.
With the overarching theme of the conference, ‘Disrupting Narratives and Pluralising Engagement in International Economic Law Scholarship, Teaching and Practice’, our inaugural conference, held on 6-7 November 2019, attracted over 80 delegates who responded to our call to pluralise, decolonise and disrupt narratives on IEL. Some of the ideas presented in the conference are being published through a series of symposia, the first of which focused on ‘Global South Perspectives for Pluralising and Decolonising IEL’ and was hosted by our friends at AfronomicsLaw. In the first symposium, contributions questioned the legitimacy of the origins of international law, identified the effects of ‘hustling’ in IEL and challenged the conceptual constraints of narratives of ‘development’ in international investment law. The complex interconnections between state and private actors across boundaries in pursuit of materialism was discussed in the context of Latin America, with a focus on human rights dimensions and the need to recognise community interests in foreign direct investment disputes arising in developing countries. Our contributors have recognised the constraining discourses of colonialism in investment state dispute settlement (ISDS) and explored how the interdisciplinarity of the international investment law and human rights dispute could be reconciled through existing normative frameworks, like the duty to regulate paradigm.
In this symposium our contributors use diverse theoretical and methodological approaches to invert dominant normative frameworks and understandings of IEL. It is split into two parts with the first three posts examining how critical approaches to IEL can provide a new frame for analysis, interrogation and critique of embedded structures of hegemony, inequality, and subjugation perpetuated by actors in international investment and international trade law. In the second part of the symposium, our contributors explore how we can ‘know and do IEL’ differently using epistemologies from the Global South and alternative methodologies.
This symposium begins with a thought-provoking piece on the role of the arbitrator in international investment law by Paolo Vargiu, who argues that the role of the arbitrator needs to be redefined. Using the teacher/student relationship discussed in the philosophy of Roland Barthes as an analogy to the investment arbitrator and stakeholder relationship, Vargiu offers a compelling account of the arbitrator as “active participants” in the investment arbitration process with “the duty of developing the community they guide”. He argues that “by analysing the role of the arbitrator through a Barthesian lens, the significance of their agency and participation in the process of shaping and (re)developing international investment law is revealed.”
The second post of this symposium by Lorenzo Cotula analyses the transformative potential of human rights for advancing social justice in IEL. With a focus on rights strategies in the context of natural resource extraction, this post highlights the intersection of juristic and discursive practices in advocacy initiatives, which aim to give voice to marginalised groups and provide redress for harms caused through economic practices. He proposes the utilisation of rights strategies can be a powerful mechanism for the legitimisation of counter-hegemonic worldview(s). Cotula concludes that we are caught ‘between hope and critique’ and, while he notes that “any social justice advocacy – whether rights-based or not – can meet stiff opposition, and change is inevitably slow and difficult”, he sees promise for change in the economic and epistemological peripheries.
In the third post of this symposium, Edoardo Stoppioni adopts a neo-Gramscian analysis of the WTO judge to reveal the ways in which neoliberal discourses and hegemony are embedded and perpetuated through legal language, expression and dissemination in the quasi-judicial setting of WTO dispute settlement. With insights from Gramsci’s infamous Notebooks, he shows how the “self-contained attitudes of the judge” in the WTO setting enables the neoliberal bias of the international trading system to reproduce itself through the reports and recommendations of the Appellate Body. It is the prioritisation of the idea of the market in international trade law that silences other possibilities and Stoppioni claims that “liberal international law parlance and indeterminacy allow the normalization of such neoliberal bias” within this system.
In the fourth post, Yentyl Williams invites us to explore IEL through the lens of Rastafarian philosophy. She posits that “international law through the process of colonialism used cultural difference as a means to facilitate the mental, moral and physical domination of Europeans over non-European cultures.” Rastafarian philosophy, which rejects claims of Euro-centrism and universalism, offers an alternative epistemological frame through which the struggles, inequalities and injustices that are legitimised through normative frameworks of IEL can be revealed. Williams argues that there is a place for Rastafari philosophy in IEL because of its “transformative nature, grappling with imperialism’s past, its informal present, and the post-imperial possibilities”. It is the “poly-tricks” of IEL, which have long enabled the oppression of Global South norms and values, that should be interrogated, critiqued and rejected.
The fifth post is a reflective piece by Suzzie Onyeka Oyakhire on teaching IEL in Nigeria. In her post, Oyakhire identifies epistemological and methodological blindspots in the teaching of IEL generally and, specifically, in the Global South. With its predominantly Western frame, IEL silences and excludes other knowledge systems making the effort(s) to reclaim the curriculum – by dismantling and disrupting accepted modes of pedagogy – a challenging task. Oyakhire argues for the focus to shift toward the development of indigenous skills and expertise in IEL which, in turn, will “help students challenge the norms and perspectives of IEL especially about the experiences of African countries in the multilateral trading system as expressed by scholars from the global north.” Pluralising epistemologies and methodologies in IEL is fundamental to creating more diverse and inclusive pedagogical practices.
In the final post of this symposium, Amanda Perry-Kessaris explores how to make ‘unity for and from diversity’. At the inaugural conference, Perry-Kessaris organised the “IEL Pop-Up Collection” to generate “a ‘structured but free’ prefigurative space for practical, critical and imaginative thinking, both solitary and collective”. Delegates were invited to bring along an artefact, an object or image, that they felt was relevant to their approach of knowing and doing IEL. At the heart of this dynamic exercise was the intention to create inclusive spaces to generate communication, co-production of knowledge, and the dissemination of ideas among delegates from diverse backgrounds. The Pop-Up Collection adds to Perry-Kessaris’ extensive and innovative research on IEL, which uses “design-based strategies of emphasising communication and experimentation, and making things visible and tangible”.