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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
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© Antony Anghie 2004
Information on this title: www.cambrid
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/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.
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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
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