Imperialism, Sovereignty and the Making of International Law

This book examines the relationship between imperialism and international law. It argues that colonial confrontation was central to the formation of international law and, in particular, its founding concept, sovereignty. Traditional histories of the discipline present colonialism and non-European peoples as peripheral concerns. By contrast, Anghie argues that international law has always been animated by the ‘civilizing mission’ – the project of governing non-European peoples. Racial discrimination, cultural subordination and economic exploitation are constitutively significant for the discipline, rather than aberrations that have been overcome by modern international law. In developing these arguments, the book examines different phases of the colonial encounter, ranging from the sixteenth century to the League of Nations period and the current ‘war against terror’. Anghie provides a new approach to the history of international law, illuminating the imperial character of the discipline and its enduring significance for peoples of the Third World.

ANTONY ANGHIE is Professor of Law at the S. J. Quinney School of Law, University of Utah. He received his LLB (Hons.) and BA (Hons.) degrees from Monash University, Melbourne, Australia, and his SJD degree from Harvard Law School. He practised law for several years in Melbourne, and now teaches Contracts and various subjects in the International Law curriculum, including International Business Transactions and International Environmental Law. He has served as a tutor at Monash and Melbourne Universities, where he has taught Development Politics and International Relations; and as a Teaching Fellow at Harvard College where he has taught International Relations. He also served as Senior Fellow at Harvard Law School and a Visiting Professor at the University of Tokyo. He is a member of the Third World Approaches to International Law network of scholars.

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Imperialism, Sovereignty and the Making of International Law

Antony Anghie
S. J. Quinney School of Law, University of Utah

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© Antony Anghie 2004

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First published 2005

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Library of Congress Cataloguing in Publication data
Anghie, Antony.
Imperialism, sovereignty, and the making of international law/Antony Anghie.
p.  cm. – (Cambridge studies in international and comparative law; 37)
Includes bibliographical references and index.
ISBN 0 521 82892 9
1. International law. 2. Imperialism. 3. Sovereignty. 4. Indigenous peoples – Legal status, laws, etc. I. Title. II. Cambridge studies in international and comparative law (Cambridge, England : 1996); 37.
KZ3410.A54   2004
341 – dc22       2004049732

ISBN 0 521 82892 9 hardback

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For my parents

Contents

Foreword

In this challenging book, Dr. Anghie examines a series of episodes in the legal history of the relations between the West and non-Western polities. He argues that they possess common features, reproducing at different epochs and in different ways an underlying pattern of domination and subordination – and doing so despite continued professions of idealism and universal values by the (Western) lawyers and leaders who have been dominantly engaged.

   The first of these episodes dates from the earliest phase of international law. Of the five studied, it is the least institutional. Rather it is an episode of justification and apology – Vitoria’s attempt to deal with the rights of the Amerindians faced with Spanish colonization. Of course, Vitoria was dealing with this problem after the event and he was teaching (a generation after Columbus) in the Catholic tradition of moral–religious theory and not as a self-perceived international lawyer. But his work, Anghie argues, inaugurated our subject. From the beginning, international law was not exclusively concerned with the relations between states but, and more importantly, with the relations between civilizations and peoples. Moreover these were relations of domination. Colonization and Empire were present at the creation, and the apologetic use of universalist ideals has never been abandoned, whatever new forms it may have taken.

   The second episode is that of the 1884–5 Congress of Berlin and the final stages of colonial expansion. It was as a result of this process – or, as with Japan and Siam, of the pre-emptive adoption of Western techniques (including international law) by the few entities that managed to survive it without losing their independence – that international law became global. The ancient ideal of universality was realized as a result of and in the course of the substantial (and historically rather recent) suppression of the non-Western world. In the process the concept of ‘civilization’ was used as a form of the exclusion of non-Western values, of non-Western identity and even of legal personality. This process can be traced through writers such as Westlake just as much as through statesmen such as Bismarck or events such as the Maori wars.

   The third episode is that of the Mandate System under the League of Nations, the beginning of the reversal of colonization that was effectively completed under the United Nations. Under the guise of a ‘sacred trust of civilization’, Western powers (and Japan) under nominal international tutelage applied the concept of the sacred trust to effect the reality of exploitation. The 1992 Nauru Case is an illustration, even if it is one for which a modicum of compensation was, uniquely, obtained after the event.¹

   And when, after a long process, independence was achieved (for all but one of the mandated territories²) and extended beyond the original list of mandates to all colonial territories, the independence that was granted turned out to be less than it seemed. The newly independent states (this is the fourth episode) fought to develop new rules, even a new international economic order. But in the event the Bretton Woods Institutions triumphed, imposing their own view of development and a certain set of structures of governance on half the world’s population and a majority of its governments. The outcome has been, on the whole, increased indebtedness and new forms of dependence.

   Finally (for the time being) we have the war on terrorism, a new form of branding of a significant fraction of the world, in particular the Muslim world, as barbarian and as enemies. In Dr Anghie’s words, ‘law  . . . in the name of security, reproduces a new form of imperialism.’ Moreover it is a new imperialism in which neo-conservatism vies with neo-liberalism in the assertion of control.

   International lawyers have always assumed that their subject existed BC (before colonization), just as they have tended to assume its florescence, as yet open and undetermined, in our time of AD (after decolonization). Anghie’s thesis is that we live still in a common era of Continued Empire (CE), albeit under new forms. Not everyone will agree with his argument, or that each of his chosen instances necessarily exemplifies it. Evidently there is a measure of generalization and simplification. There are many differences among ‘Third World’ states, and we should resist equating ‘Third World’ with ‘the countries that lack governance’ or those in which ‘development has failed’; otherwise debates about governance and development will become viciously circular.

   It must be admitted that the general theme of the work – that ‘[t]he colonial history of international law is concealed even when it is reproduced’ – is sobering. The book is not, however, unrelievedly pessimistic. In Anghie’s view ‘the Third World cannot abandon international law because law now plays such a vital role in the public realm in the interpretation of virtually all international events’. It may be doubted whether ‘it is possible to create an international law that is not imperial’, and faith in the future is hardly balanced by our recorded history of good works. But the fact remains that, although not under circumstances of their own choosing, people and communities do nevertheless make their own history; indeed they are condemned to do so. An understanding of those circumstances, we may hope, may help prevent their endless repetition under new forms. In this way, we can read Anghie as challenging us to think of ways of creating a non-imperial international law.

James Crawford

Lauterpacht Research Centre for International Law
University of Cambridge

Acknowledgements

I have acquired many debts over the years it has taken me to write this book. My profound thanks are due to Nathaniel Berman, Abram Chayes, B. S. Chimni, Robert Chu, Karen Engle, James Thuo Gathii, Daniel Greenwood, Qadri Ismail, Susil Jayaratne, Karen Knop, Martti Koskenniemi, Mitchel Lasser, Karin Mickelson, Herbert Morais, Vasuki Nesiah, Celestine Nyamu, Liliana Obregon, Obiora Okafor, Onuma Yasuaki, Ileana Porras, Balakrishnan Rajagopal, Rhee Zha Hyoung, Annelise Riles, Kerry Rittich, Henry Steiner, Detlev Vagts and Robert Wai, who all contributed in different ways to my thinking on the issues I explore in this book. I owe a special debt to my colleagues in the Third World Approaches to International Law network of scholars who persuaded me that the lines of inquiry undertaken here were worth pursuing. This book originated as a SJD thesis which I completed at Harvard Law School, and I am grateful to K. Anthony Appiah and Duncan Kennedy, who were on my thesis committee, for their valuable guidance. Thomas Franck, one of my examiners, provided me with extremely acute, detailed and illuminating comments, the true significance of which, in some cases, I realised only years later. I have the great good fortune of being the student of two extraordinary teachers. Christopher Weeramantry inspired me by his example to take up the study of international law and he has been unstinting in his support and concern ever since I was his student. His vision of international justice, his integrity, his erudition and wisdom establish the standards to which I will always aspire but never attain. David Kennedy supervised my thesis, and his brilliance, support, encouragement and provocation were indispensable to the writing of this work. It was only gradually, as I embarked on my own teaching career, that I better appreciated the magnitude of the generosity, insight and understanding that he extended to me, and that made this work, for better or worse, possible. His vision and dedication created a remarkable SJD programme at Harvard Law School, which supported not only my own scholarship, but that of many other younger scholars whose important and innovative work was uniquely appreciated and encouraged. I am indebted to two institutions in particular. My colleagues at the S. J. Quinney School of Law, at the University of Utah, through their kindness and support, provided an ideal environment in which I could pursue my work, as did the Graduate Programme at Harvard Law School and all the people associated with it during the five years I spent there. Mike Truman and Aaron Jordan provided both superb research assistance and much-needed organization. John Bevan and Laura Ngai of the S. J. Quinney law library were indefatigable in locating and providing me with the most obscure and elusive materials. The University of Utah provided me with a Faculty Fellowship and sabbatical leave that made my research possible during the last stages of the writing of this work. The S. J. Quinney School of Law provided me with financial support through the Summer Stipend Program. My thanks to the University of Tokyo and Onuma Yasuaki for enabling me to spend three valuable months at the University of Tokyo. I am also very grateful to James Crawford who was kind enough to write the Foreword to this book, and who also made several valuable suggestions and corrections. At Cambridge University Press, many thanks to Finola O’Sullivan, Jane O’Regan, Mary Leighton and Barbara Docherty for their patience and professionalism. This book was completed in February 2004.

   Parts of this book have been previously published, in somewhat different form, as ‘Francisco de Vitoria and the Colonial Origins of International Law’, 5(3) Social and Legal Studies, 321–336 (1996); ‘Francisco de Vitoria and the Colonial Origins of International Law’, in Laws of the Postcolonial, edited by Eve Darian-Smith and Peter Fitzpatrick, University of Michigan Press (1999), pp. 89–109; ‘Finding the Peripheries: Sovereignty and Colonialism in Nineteenth Century International Law’, 40(1)  Harvard International Law Journal (Winter 1999), 1–80; ‘Colonialism and the Birth of International Institutions: Sovereignty, Economy and the Mandate System of the League of Nations’, 34(3) New York University Journal of International Law and Politics (Spring 2002), 513–633. Omnia pro deo.

Table of cases

Table of treaties