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Excerpted From: Ama Ruth Francis, Global Southerners in the North, 93 Temple Law Review 689 (Summer, 2021) (144 Footnotes) (Full Document)


AmaRFrancisThird World Approaches to International Law (TWAIL) posits that international law unevenly structures power dynamics between nation-states. Rather than serving as a neutral generator and arbiter of legal rules and norms, international law produces winners and losers. The winners are industrialized nation-states following the colonial period: the Global North. The losers are developing nation-states that were formerly colonized: the Global South. Climate change law serves as a seemingly paradigmatic example within this North-South apparatus. The United States, the European Union, and other top emitters remain responsible for 41.5% of global greenhouse gas emissions, while climate-vulnerable states have been largely unable to leverage the United Nations Framework Convention on Climate Change (UNFCCC) process to produce legally binding liability. While attending to asymmetrical relationships between nation-states remains important for any critical endeavor in international legal scholarship, this Essay proposes that understanding the North-South divide solely in terms of nation-states is misguided.

First, the emerging economic success of some developing nation-states--namely, Brazil, Russia, India, China, and South Africa--destabilizes the coherence of the Global South category. In the climate change realm, for example, China is a major emitter of greenhouse gases, but it remains part of the Global South negotiating bloc. Scholars insist on preserving the notion of the Global South as a set of economically disadvantaged states in Latin America and the Caribbean, Africa, Asia, and the Pacific, claiming that Global South nation-states need not all be the same. While the Global South category may be sufficiently tensile to accommodate heterogeneity, globalization's erosion of the nation-state still calls in to question the utility of theorizing power exclusively in Westphalian terms.

Second, global capitalism operates across national borders to construct a widening divide between the rich and the poor in both the geographic North and South. According to the U.S. Federal Reserve, in the second quarter of 2020, the top 1% of Americans held 30.7% of all household wealth in the United States, while the bottom 50% of the population held 1.9% of total wealth in the United States. Scholars William Robinson and Jerry Harris argue that wealthy elites increasingly constitute a transnational capitalist class, including elites from the geographic South, who benefit from the transnational concentration of capital. This transnational accumulation of capital operates to the exclusion of an oppressed class in both the geographic North and South. In contemporary terms, then, the Global South, whose conceptual power lies in theorizing oppression, might more aptly encompass people and spaces commonly excluded under global capitalism regardless of their geographic location. As such, the Global South becomes a deterritorialized, socio-spatial mapping of the externalities of capitalist accumulation.

Leveraging the analytic lens of racial capitalism allows for an even sharper view. Capitalism operates to devalue racialized humans so that their lives become externalities. Accordingly, Black, Indigenous, and People of Color (BIPOC) around the world become disposable humanity who balance capitalist excess. In the logic of racial capitalism, Pacific Islanders rightly perish as climate change's adverse effects render atoll and low-lying nation-states increasingly uninhabitable. Moreover, racial capitalism suggests that leaving Indigenous communities in the United States to face eroding lands, sacred sites, and cultural practices without a clear relocation plan is a necessary externality of a carbon-based economy. Global capitalism renders racialized humans as expendable across the North-South divide.

Although international law traditionally governs interstate relations, making the Westphalian notion of the North-South divide a useful critical tool, global capitalism's production of Global Souths in the North calls for a more nuanced analytical lens. This Essay proposes that the primary prism of analysis for TWAIL theorists--the geographic North-South divide--needs revising. It argues for reconceptualizing the Global South to include not only nation-states but also the people and spaces that racial capitalism positions as expendable in both the geographic North and South. This theoretical palimpsest is useful because it allows for the naming of a heretofore disregarded site of resistance in international law--Global Southerners in the North.

Section I pays homage to TWAIL, the nation-state-based frame of critiquing international law along the North-South divide, tracing TWAIL scholarship's evolution from the colonial to the neoliberal period. This Section shows that the literature primarily lies on a Westphalian notion of the Global South. It then highlights an emerging thread of TWAIL scholarship that understands the Global South as a political practice in order to push for a deterritorialized view of the Global South.

Section II takes the deconstruction argument further, claiming that racial capitalism breaks down the geographic North-South divide. It posits that racial capitalism creates Global Souths and Southerners in the North--that is, racialized surplus populations that are also present in Latin America and the Caribbean, Asia, Africa, and the Pacific. Section II uses climate displacement as an example to highlight expendability as a common defining experience for BIPOC across the geographic North-South divide.

Section III builds on Section II's claim that expendable Global South populations exist in the geographic North. It ultimately contends that Global Southerners in the geographic North are political agents with the capacity to shift the global political economy of international law. This Essay thus seeks to reinvigorate TWAIL scholarship by offering a new analytical understanding of the Global South.

[. . .]

Although  [Third World Approaches to International Law] TWAIL scholarship's aim to analyze questions of power within international law is a central one, the literature's primary mode of analysis-- that is, a Westphalian-framed North-South divide--needs revision. This Essay argues that global capitalism renders racialized humans in both the geographic North and South expendable. As such, there are Global Southerners in the North and Global Northerners in the South. It is therefore no longer appropriate to analyze the power imbalances that international law shapes solely in terms of inequality between nation-states. Instead, this Essay proposes that people and spaces across the North-South divide share common negative experiences under global capitalism. This claim allows the Essay to argue that Global Southerners in the North serve as a heretofore unnamed site of resistance in international law. Their hybrid positionality offers useful potential for overcoming intransigent issues across the North-South divide. This Essay therefore offers a new perspective to the central debate in the literature over international law's disadvantaging of Global Southerners.

The author is a nonresident fellow at the Sabin Center for Climate Change Law at Columbia Law School and the Climate Displacement Project Strategist at the International Refugee Assistance Project and Natural Resources Defense Council.

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