... we should expose International Law as Colonial

by Antony Anghie

Earth, how are you doing? (Issue I/2018)

If you believe lawyers and jurists who work in international law, the world has become an increasingly fair place over the last few centuries. International law is considered by most to be a force for good in the world. The rules that govern global co-operation have a reputation for guaranteeing individual freedom and justice.

But international law also has an often overlooked flipside which is dark, violent and misanthropic and hails from its history. To understand this, it pays to look closely at how laws, norms and codes of conduct were first internationalized. One example of this lies in property rights. During the 19th century, many European states saw protecting private property as part of their legal DNA. As people moved to Asia, they brought with them their notion of property rights, which they forced onto the governments of Beijing, Delhi and elsewhere, which now had to abide by laws set by Western colonial officials. Western law, in effect, became Asian law.

The internationalization of ownership, however, did not halt after colonies regained their freedom. To the contrary, former colonialists now offered bilateral agreements to newly formed states - a less direct, but equally efficient way of spreading their ideas of right and wrong around the world.

If the Chinese government wanted to seize British property for whatever reason, the case could now be brought before an inter-state arbitral tribunal. And, more often than not, they came out in support of the powerful. Of course, the governments signing up to such contracts were complicit but many feared staying outside the emerging legal system and loosing their voice completely. In addition, a number of governments in Africa and Asia underestimated the content of the treaties, often because of a lack of legal expertise.

In this way, laws and standards which largely originated in Europe and the United States have taken hold across the globe. An awareness of this leads to an awareness that our international law is far from innocent. Without the conquests of the colonial era, laws on possession, free trade and democracy would be far from a global phenomenon. From this perspective, it is clear that international law often does not serve to ensure justice but rather boils down to protecting the strongest. Within institutions like the World Bank and the International Monetary Fund, founding members usually have the say. Meanwhile the United Nations' agenda is also dictated by the most powerful, with the ideological leadership usually coming from the western founding members.

Against this background, I am in favour of exposing international law as colonial, thus highlighting its imperialist streak. International law stands for freedom and humanity, but it undoubtedly has a dark side too. Accepting this means gaining a deeper understanding of power imbalances, which further marginalizes the marginalized and strengthens the hand of the powerful. International institutions are propagating the imperialist structures which first brought about international law. To praise international law as the power of good is therefore highly dubious. Governments from the global South have repeatedly criticized this in the past. But the world will only become fairer when those states which steer the system wake up to the reality of international law.

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