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 [...]... system of international law which essentially displaces divine law and its administrator, the Pope, and replaces it with natural law administered 11 12 13 Alfred P Rubin, International Law in the Age of Columbus’ (19 92) XXXIX Netherlands International Law Review 5 35 at 11 14 See Rubin, International Law and Anthony Pagden, Lords of All The World, Ideologies of Empire in Spain, Britain and France c 15 00... 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 major textbooks of international law, which introduce the subject by outlining the problem and offering some sort of solution to it by suggesting the. .. Origins of International Law , 5(3) Social and Legal Studies, 3 21 336 (19 96); ‘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 (19 99), pp 89 10 9; ‘Finding the Peripheries: Sovereignty and Colonialism in Nineteenth Century International Law , 40 (1) Harvard International Law Journal... relations; rather, international law was created out of the unique issues generated by the encounter between the Spanish and the Indians It is in this context that the question arises: what is the relationship between the origins of international law and the colonial encounter in these, the first teachings on international law? Further, what does an examination of these origins suggest about the relationship... 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 19 92... in this way in the positivist era Chapter 3 focuses on the jurisprudence of the inter-war period (19 19-39) and traces in general 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. .. (Winter 19 99), 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 xvii Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, ICJ Reports 19 96, p 226 273,293,305 Lighthouses in Crete and. .. Mohammed Bedjaoui, International Law: Achievements and Prospects (Boston: Martinus Nijhoff, 19 91) , p 7 introduction 5 short, the doctrines of international law solved the problem of difference by preceding it This understanding of the colonial encounter is characteristic of the traditional approach to international law, which understands the discipline in terms of the fundamental question of how order is... Press, 19 97), p 263 See Nathaniel Berman, ‘In the Wake of Empire’, (19 99) 14 American University International Law Review 15 21 1554 at 15 23 introduction 7 these doctrines and institutions as being generated by problems relating to colonial order Broadly, then, this approach enables an exploration of the problems and politics of who was sovereign and why, the relationship between ideas of culture and sovereignty. .. regarding the character and exercise of authority Secondly, many of these writers denounced classical international law as being the product of imperialism and a means by which European interests were promoted and maintained .12 The law regulating the nationalization of alien property was classically cited as an example of this imperialist international law. 13 The project, then, was to excise these colonial . League of Nations 11 5 Introduction 11 5 The creation of the Mandate System 11 9 vii viii c ontents TheLeagueofNationsandthenewinternationallaw123 The Mandate System and colonial problems 13 6 The Mandate. System and the construction of the non-European state 14 7 Government, sovereignty and economy 15 6 The mandate and the dissolution of sovereignty 17 9 The legacies of the Mandate System: toward the present. (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