Imperialism, Sovereignty and the Making of International Law

Antony Anghie opened a new direction in the study of international law with his book "Imperialism, Sovereignty and the Making of International Law" (2005), published by Cambridge. The book is a significant contribution (nearly 5,000 citations as of this writing, not including the citations to the papers that are included in the book). This highly influential work shows the power of academic work and of ideas, as its has influenced entirely new areas of research since. There is much worthy of quoting from this book, I've tried to select several that reflect the key arguments below, worth reading in full for those who have not yet done so.

"My broad argument is that colonialism was central to the constitution of international law in that many of the basic doctrines of international law -- including, most importantly, sovereignty doctrine -- were forged out of the attempt to create a legal system that could account for relations between the European and non-European worlds in the colonial confrontation. In making this argument, I focus on the colonial origins of international law; I attempt, furthermore, to show how these origins create a set of structures that continually repeat themselves at various stages in the history of international law. In so doing I seek to challenge conventional histories of the discipline which present colonialism as peripheral, an unfortunate episode that has long since been overcome by the heroic initiatives of decolonization that resulted in the emergence of colonial societies as independent, sovereign states" (p. 3)

"As against conventional histories, then, what may be required is the telling of alternative histories -- histories of resistance to colonial power, history from the vantage point of the peoples who were subjected to international law and which are sensitive to the tendencies within such conventional histories to assimilate the specific, unique histories of non-European peoples within the broader concepts and controlling structures of such conventional histories." (p. 8)

"Vitoria asserts that 'to keep certain people out of the city or province as being enemies, or to expel them when already there, are acts of war'. Thus any Indian attempt to resist Spanish penetration would amount to an act of war; which would justify Spanish retaliation. Each encounter between the Spanish and the Indians therefore entitles the Spanish to 'defend' themselves against Indian aggression and, in so doing, continuously expand Spanish territory" (p. 21-22)

"In looking within their own discipline for jurists who could act as a foundation for such a humanist project, the League lawyers returned to the work of Vitoria. They focused in particular on his argument that the Indians were the wards of the Spanish, and that Spanish governance of the Indians was to be dictated at all times by the interests of the latter. Vitoria, as discussed, characterized the natives as 'infants', further reinforcing the notion that they required guardianship. Consequently, the Mandate System was now presented as an elaboration of the important ideas first enunciated by Vitoria, that had been neglected and dismissed, together with so much else of value in international jurisprudence, as a result of the dominance of positivism, which now was itself discredited. The circle was complete: in seeking to end colonialism, international law returned to the origins of the colonial encounter" (p. 144-145)

"If my analysis is correct, then the tragedy for the Third World is that the mechanisms used by international law to achieve decolonization were also the mechanisms that created neo-colonialism; and that, furthermore, the legal structures, ideologies and jurisprudential techniques for furthering neo-colonialism largely were in place before Third World states actually attained independence. The Mandate System had devised a set of technologies that would compromise that independence and maintain -- indeed, entrench -- the division between advanced and backward states." (p. 192)

"Virtually every facet of the UN system participated in this project: the provisions in the UN Charter that dealt with non-self-governing and trusteeship territories, the famous General Assembly Resolutions articulating the right to self determination and the opinions of the International Court of Justice (ICJ) in Western Sahara and Namibia, all addressed this question. The modern doctrine of self-determination, then, was formulated in response to the whole phenomenon of colonialism." (p. 196)

"A new 'natural law' of contracts emerges, a law by which the law of the Third World state is in effect selectively replaced by the law of England through the invocation of 'general principles of law'. Startling consequences follow from this reasoning: not only is the concession not governed by the law of Abu Dhabi, but it could, rather, be governed by the law of England because that law represented the 'modern law of nature'. As mentioned, these early decisions are now regarded as an embarrassment by arbitrators who now, like their counterparts in the field of public international law, have attempted to distance themselves from the colonial origins of their particular specialization, international arbitral law" (p. 229)

"Lord Asquith dismissed Abu Dhabi as having no law in the 1950s. By the time of the AMINOIL arbitration in 1982, the arbitrators insist by contrast that another Middle Eastern state, Kuwait, possesses a very sophisticated legal system. They assert that 'Kuwait law is a highly evolved system', even while gracefully making the transition to international law on the basis that 'established public international law is necessarily a part of the law of Kuwait' and, further, that 'general principles of international law are part of public international law'.120 The international law that proclaims general principles that protect acquired rights is thus transformed into the law of Kuwait itself. It is only at this point, when these self-negating, colonizing principles of acquired rights have become an integral part of its foundation, that the Kuwaiti legal system is recognized as having any validity. The outcome, then, for the Arab states is the same, whether through the reasoning of Lord Asquith (Middle Eastern states have no sophisticated laws) or the arbitrators in AMINOIL (Middle Eastern states have very sophisticated laws). The Middle Eastern state is bound by an international law that nullifies its sovereignty" (p. 243)

"Good governance, then, provides the moral and intellectual foundation for the development of a set of doctrines, policies and principles, formulated and implemented by various international actors, to manage, specifically, the Third World state and Third World peoples. Attempts by Western states to promote 'good governance' in the Third World – and this involves far-reaching transformations, relating to the promotion of democracy, free markets and the rule of law -- are directed at reproducing in the Third World a set of principles and institutions which are seen as having been perfected in the West, and which the non-European world must adopt if it is to make progress and achieve stability" (p. 249)