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This page intentionally left blank 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 theformation 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. c ambridge studies in international and comparative law Established in 1946, this series produces high-quality scholarship in the fields of public and private international law and comparative law. Although these are distinct legal subdisciplines, developments since 1946 confirm their interrelation. Comparative law is increasingly used as a tool in the making of law at national, regional and international levels. Private international law is now often affected by international conventions, and the issues faced by classical conflicts rules are frequently dealt with by substantive harmonisation of law under international auspices. Mixed international arbitrations, especially those involving state economic activity, raise mixed questions of public and private international law, while in many fields (such as the protection of human rights and democratic standards, investment guarantees and international criminal law) international and national systems interact. National constitutional arrangements relating to ‘foreign affairs’, and to the implementation of international norms, are a focus of attention. The Board welcomes works of a theoretical or interdisciplinary character, and those focusing on the new approaches to international or comparative law or conflicts of law. Studies of particular institutions or problems are equally welcome, as are translations of the best work published in other languages. General Editors James Crawford SC FBA Whewell Professor of International Law, Faculty of Law, and Director, Lauterpacht Research Centre for International Law, University of Cambridge John S. Bell FBA Professor of Law, Faculty of Law, University of Cambridge Editorial Board Professor Hilary Charlesworth Australian National University Professor Lori Damrosch Columbia University Law School Professor John Dugard Universiteit Leiden Professor Mary-Ann Glendon Harvard Law School Professor Christopher Greenwood London School of Economics Professor David Johnston University of Edinburgh Professor Hein Kötz Max-Planck-Institut, Hamburg Professor Donald McRae University of Ottawa Professor Onuma Yasuaki University of Tokyo Professor Reinhard Zimmermann Universität Regensburg Advisory Committee Professor D. W. Bowett qc Judge Rosalyn Higgins qc Professor J. A. Jolowicz qc Professor Sir Elihu Lauterpacht cbe qc Professor Kurt Lipstein Judge Stephen Schwebel A list of books in the series can be found at the end of this volume. Imperialism, Sovereignty and the Making of International Law Antony Anghie S. J. Quinney School of Law, University of Utah    Cambridge, New York, Melbourne, Madrid, Cape Town, Singapore, São Paulo Cambridge University Press The Edinburgh Building, Cambridge  , UK First published in print format - ---- - ---- © Antony Anghie 2004 Information on this title: www.cambrid g e.or g /9780521828925 This book is in copyright. Subject to statutory exception and to the provision of relevant collective licensing agreements, no reproduction of any part may take place without the written permission of Cambridge University Press. - --- - --- Cambridge University Press has no responsibility for the persistence or accuracy of s for external or third-party internet websites referred to in this book, and does not guarantee that any content on such websites is, or will remain, accurate or appropriate. Published in the United States of America by Cambridge University Press, New York www.cambridge.org hardback eBook (EBL) eBook (EBL) hardback Formyparents Contents ForewordJamesC.Crawfordpagexi Acknowledgementsxiv Table of cases xvi Table of treaties xix Introduction 1 1FranciscodeVitoriaandthecolonialoriginsof international law 13 Introduction 13 Vitoria and the problem of universal law 17 War,sovereigntyandthetransformationoftheIndian23 Conclusion28 2Findingtheperipheries:colonialismin nineteenth-century international law 32 Introduction 32 Elements of positivist jurisprudence 40 Defining and excluding the uncivilized 52 Native personality and managing the colonial encounter 65 Reconceptualizing sovereignty 100 3Colonialismandthebirthofinternational institutions: the Mandate System of the League of Nations 115 Introduction 115 The creation of the Mandate System 119 vii viii c ontents TheLeagueofNationsandthenewinternationallaw123 The Mandate System and colonial problems 136 The Mandate System and the construction of the non-European state 147 Government, sovereignty and economy 156 The mandate and the dissolution of sovereignty 179 The legacies of the Mandate System: toward the present 190 Conclusion194 4Sovereignty and the post-colonial state 196 Introduction 196 Decolonization and the universality of international law 199 Development,nationalismandthepost-colonialstate204 Developmentandthereformofinternationallaw207 Permanent sovereignty over natural resources and theNewInternationalEconomicOrder211 The 1962 Resolution on PSNR 216 The1974CharterofRightsandDutiesAmongStates220 Colonialismandtheemergenceoftransnationallaw223 Sources of law and international contracts 226 Overviewandconclusions235 5Governance and globalization, civilization and commerce 245 Introduction245 Good governance and the Third World 247 Governance, human rights and the universal 254 International financial institutions, human rights and good governance 258 InternationalfinancialinstitutionsandtheMandate System 263 Conclusions and overview 268 6Onmaking war on the terrorist: imperialism as self-defence 273 Introduction 273 The war against terrorism 274 The United States and imperial democracy 279 [...]... that international law was not law properly so called because it did not emanate from a single, global sovereign The attempts to resolve this problem, and the critiques of these attempts have, on the whole, constituted the central theoretical debate of the discipline.6 The defining character of this problem to the whole discipline of international law is further reflected by the structure of many of the. .. 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... society, to ensure the emergence of civilized states Despite what I claim to be the centrality of colonialism for the generation of international law, the relationship between international law and the colonial encounter has not been seen in this way Rather, many international lawyers, from both the First and the Third world5 write as if international law came to the colonies fully formed and ready for... 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... international law. 13 The project, then, was to excise these colonial aspects of international law from the system of international law and to recreate a new, open and non-colonial international law It is now hardly disputable that classical international law was complicit in the imperial project and the exploitation which accompanied it If, however, the colonial encounter, with all its exclusions and. .. I have offered here might suggest new lines of research and make some contribution towards the writing of alternative histories of the discipline: histories of resistance to colonial power, history from the vantage point of the peoples who were, in many ways, the victims of international law Further, if we understand how colonialism has shaped the fundamental structures of international law, then it... 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. .. terms the shift from positivism to the new jurisprudence of pragmatism that was related to the emergence of the first major international institution, the League of Nations My particular focus is on the Mandate System of the League of Nations that provided the international system with a new means of managing colonial relations through the technologies developed by international institutions The Mandate... constructed the case that was later argued before the International Court of Justice While the needs and demands of the Inquiry consumed my immediate attention, what I found both curious and disturbing, as I researched the questions arising from the dispute and this involved examining many aspects of the relationship between colonialism and international law was the fact that international law had... discipline and to the enduring significance of Vitoria’s thinking on the law of war and on the rights of dependent peoples.6 Vitoria’s two lectures, as their titles suggest, are essentially concerned with relations between the Spanish and the Indians Colonialism is the central theme of these two works designated as the founding texts of international law It is hardly possible to ignore the fact that Vitoria . sovereignty 100 3Colonialismandthebirthofinternational institutions: the Mandate System of the League of Nations 115 Introduction 115 The creation of the. Mandate System 119 vii viii c ontents TheLeagueofNationsandthenewinternationallaw123 The Mandate System and colonial problems 136 The Mandate System and