Imperialism Sovereignty And The Making Of International Law Cambridge Studies In International
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The kind of relationship that existed between the third-world people and international law (an edifice of the Westerners) is such that it is directly or indirectly concerned with the estrangement of international law from the people of third world, based on strings that strongly, but inextricably connect or bond them with the past, current and the future international law. The term estrangement here means a kind of alienated, but complex relationship that exists between the individuals, society and nature of international law under global capitalism; and the slow transformation of international law into internal law.17 This isolation of the people of third world from international law manifests on the relegated place assigned to third-world people in the history of international law. This is because during the early stage of international law, they were seen as backward, crude, barbaric and uncivilised, and therefore incapable of participating in the international legal order. For example, argument is put forward that African states lacked the power to sign legal treaties to transfer their sovereignty to a European power.18 The beginning and the emergence of a Global State, was marked through greater application of cleverness and subtleness in the use of international law to secure the interest of the powerful Westerners than in the past when legitimacy is derived by the employment of force.
This book argues that the 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, and that the economic exploitation and cultural subordination that resulted were constitutively significant for the discipline. 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 on terror'. Anghie provides a new approach to the history of international law, illuminating the enduring imperial character of the discipline and its continuing importance for peoples of the Third World. This book will be of interest to students of international law and relations, history, post-colonial studies and development studies.
At first sight, politics, governance, and the law seem distinct and easily categorized as separate disciplines within the social sciences. Yet when considering them from global perspectives, they are ultimately contested, as are the relations among them. Generically, politics might be seen as the continuous self-design of a polity through ways of gaining and arranging power; governance as the way in which governments might function effectively and simultaneously, when conceived of globally, as transnational and global regimes beyond national realms of sovereignty; and law as a social technique by which societies and the international community choose and live by the norms they have reason to value.
Firstly, the argument will address the idea of consent, reciprocity and the United Nations Security Council (UNSC) structure, as the indicators of sovereign will. It shall be established that the sovereign will of states is hegemonic in the international legal system. The argument will then highlight the inequalities of international law making amongst states. Instead of all states having an equal reflection in international law, there is a distinct colonial legacy of Eurocentric states acquiring much of the construction and application. By arguing that the pursuit for universal sovereignty and international law is a colonial mission, the extent to which international law reflects Western hegemonic states becomes apparent. Building on this historical argument, a legal perspective will infer that the domestic judicial systems of post-colonial states are still entrenched in the colonial judicial systems during the time of imperialism. Thus even if there is a significant input from non-Western states in international law making, it is still instilled with domestic sovereign structures inherently designed to benefit the colonial masters. In sum, international law reflects the sovereign will of Western states to a great extent and obstructs legal plurality from post-colonial states.
It has been the purpose of this section to display characteristics in international law that reflect the sovereign will of states. Through mechanisms such as consent and reciprocity and the ad hoc approaches to international law, sovereignty still lies with the state. In the next section it will be argued that although the sovereign will of states is reflected in international law, it is only for a select group of Eurocentric states. Through the medium of post-colonialism, it shall be argued that the notion of sovereignty itself, and therefore international law, is part of the colonial mission. Thereby, the conception of sovereignty in a colonial lens reflects upon and shapes international law.
In order to assess to what extent international law reflects the sovereign will of Western states, one has to explore what sovereignty is and how it has shaped world order today. Moreover, it is necessary to provide an explanation as to the inequalities amongst states in international law, in order to prove it is derived from the sovereign will of states. Throughout this section the notion of sovereignty and how it is equipped to develop and influence international law will be recognised. However, an argument will be made for the colonial bias infringing on the novel notion of universality in international law.
The principal analytic frameworks governing the [international law] discipline precluded any real examination of non-European societies and people, and the ways in which they impinged upon and shaped the making of international law.
In other words, Anghie argues there is a historical bias within scholarship that overlooks epistemological flaws in understanding colonialism, thereby misshaping views on international law. Instead of thoroughly analysing how colonialism shaped modern day international law, the discipline has looked more towards an Austinian dialogue of sovereignty and justice. This in turn, has neglected to highlight the inequalities between post-colonial states and the West in international law practice.
In this section it has been argued that sovereignty has been a colonial export from European hegemony. European imperialism replicated sovereign will across the globe in a Eurocentric structure. This was in order to continue creating international law to reflect the sovereign will of European states, not the post-colonial societies forced to accept statehood through decolonisation. By doing so, international law was historically created to reflect the will of Western sovereign states. In light of this, it will now be argued that domestic judicial systems of post-colonial states are shaped to continue a colonial legacy that reflects on international law.
It was argued in the previous section that state sovereignty has been a colonial export through the process of decolonisation. In order to participate in and be reflected in international law making in any capacity, a post-colonial society was required to accept the Western construct of the nation-state. In this section, building on the previous argument, there will be an analysis of internal sovereign justice structures of post-colonial states and the notion of self-determination. This will exemplify the colonial mission to export Western judicial systems, in order to ensure that future international law reflects the sovereign will of Eurocentric states.
Arghyrios Fatouros argues that cultural difference between European states and the non-European world is exaggerated and unconvincing; instead it is insignificant in contemporary international law making. However, he dismisses cultural entities that existed with different political structures before colonisation and the exportation of the nation-state model. Furthermore, by arguing there is little difference between the West and non-West is Westernisation in itself. By subjugating cultural differences, Fatouros denies the existence of a plurality of participants, thus emulating the colonising mission. Moreover, he conceptualises the non-Western world as submissive to the dominant international structure of Western hegemony. 153554b96e