Reviewing Imperialism, Sovereignty and the Making of International Law (November 2024)

Published in 2005, Imperialism, Sovereignty and the Making of International Law is Antony Anghie’s seminal book on the connection between European colonialism and modern international law, and as such it is an important text in postcolonial studies. It was one of four valuable book recommendations(1) by Aslı Ü. Bâli, Professor of International and Comparative Law at Yale Law School, on the occasion of an interview with the New York Times’ Ezra Klein on May 17, 2024. Anghie is Professor of International Law, National University of Singapore and Professor of Law at the University of Utah.

Anghie’s thesis is that modern international law is to a great extent a product of Europe’s interactions with the non-Western world since the ‘discovery’ of America. Anghie returns to the 16^th century when the Spanish theologian and jurist, Francisco de Vitoria, produced the rudimentary beginnings of international law in the context of Spain’s colonization of the West Indies. It was here and then that the opposition of European and non-European cultures led to the framing of what Anghie regards as a very asymmetric law of nations. Anghie’s narrative then picks up again later in the 19^th century with the European contest for colonies accelerated—a global phenomenon nowhere better illustrated than in the Berlin Conference (1884-85) and the divvying up of Africa’s land and people. Then, in the 20^th century, the two world wars gave rise to the first international institutions to unite Europe and non-Europe.

International law is universal. It is a body of law which applies to all states regardless of their specific and distinctive cultures, belief systems and political organizations. It is a common set of doctrines which all states, whether from Europe or Latin America, Africa or Asia use to regulate relations with each other. The association between international law and universality is so ingrained that pointing to this connection appears tautologous; it is today hard to conceive of an international law which is not universal. And yet, the universality of international law is a relatively recent development. It was not until the end of the nineteenth century that a set of doctrines was established as applicable to all states, whether these were in Asia, Africa or Europe.

After this précis of where things stand now, Anghie delivers his bold assertion that modern international law’s origins are quite different from what might be assumed by students of international relations (IR) who follow the standard evolutionary narrative of European-based international law.

The universalization of international law was principally a consequence of the imperial expansion which took place towards the end of the ‘long nineteenth century’.

And later, Anghie elaborates on how imperialism and the relationship between the Europeans and non-Europeans helped shape a previously Eurocentric law among nations:

[T]he nineteenth century could be said to embody a particular set of attitudes and methods. It posits an essentialist dichotomy between the non-European and the European; it characterizes relations between these entities to be inherently antagonistic; it establishes a hierarchy between these entities, suggesting that one is advanced, just and authoritative while the other is backward, violent and barbaric; it asserts that the only history which may be written of the backward is in terms of its progress towards the advanced; it silences the backward and denies it any subjectivity or autonomy; it assumes and promotes the centrality of the civilized; and it contemplates no other approaches to the problems of society than those which have been formulated by the civilized. Many of these elements are evident in the work of prominent international relations scholars from Samuel Huntington’s influential argument regarding the ‘clash of civilizations’, to Francis Fukuyama’s assertions as to the ‘end of history’.

Ironically, the international law described by Anghie appears to be reducible to the law of the jungle. It appears otherwise owing to the law’s institutionalization intended, among other things, to make international law respectable for polite society. This seems to be the case across all Anghie’s named schools of thought: the secular naturalism of Vitoria and Grotius, the positivist system with its superimposed layer of science to remediate the metaphysical turn of the naturalists and justify the proceedings of the Berlin Conference of 1884-85, and the pragmatism that followed World War I and became manifest through international institutions such as the League of Nations’ mandate system, the United Nation’s trusteeship system, and the International Financial Institutions (IFIs) of the of the IMF and the World Bank. Not surprisingly, the same would be true of the 4^th school of thought hinted at towards the end of the book—American exceptionalism.

With respect to these different schools of thought, Anghie finds commonality in what he characterizes as an unbridgeable gap separating the European and non-European worlds. This gap is variously framed in the oppositions of civilized versus uncivilized and developed versus undeveloped or underdeveloped.

[His] argument is that while these schools are distinctive, what is disturbing is that they all have served to reproduce colonial relations. It is in this sense that [he] argue[s] that, far from being ancillary to the discipline, colonialism is central to its very constitution.

Furthermore, “formal acquisition of sovereignty and equality did not translate into the real power that the Third World states had hoped for.”

[T]the continuing effect of the colonial encounter and the persistence of the structure of the civilizing mission . . . creates this discrepancy. The innovations and reforms of the UN period served in important ways to reproduce and reinstate the inequalities and power disparities that had characterized formal colonialism. These same issues informed [Anghie’s] analysis of Mandate System . . . which attempted to examine why it was that non-European sovereignty was somehow destined to become distinctive and dependent and lacking in real economic power.

In the nearly two decades since Anghie’s book appeared, the world has become more multipolar and the opportunities for America’s global hegemony have significantly diminished with China’s rapid economic growth and increasingly activist foreign policy in the Global South, America’s back-to-back failures in nation-building in Iraq and Afghanistan, and the spectacle of a second mass bloodletting in Europe ending the pretensions of lessons learned from the two 20^th century world wars—an atavistic turn to days of the Thirty Years’ War that occasioned Grotius Laws of War and Peace and the observation that “Throughout the Christian world I have seen a lawlessness in warfare that even barbarian races would think shameful.” It was the cruel reality of the inevitability of warfare that prompted Grotius to attempt to ‘civilize’ it.

Finally, the Global South—the post-Cold War term for the Third World—appears to be exerting influence on the global stage by means of alliances such as BRICS (originally Brazil, Russia, India, China and South Africa but now including Iran, Egypt, Ethiopia and the U.A.E. ) and the G20 (19 countries including the original five BRICS members, all seven members of the G7 as well as Argentina, Australia, Indonesia, Mexico, Saudi Arabia, South Korea and Turkey. An evolutionary path towards greater equality among nations could expect Anghie’s full endorsement. However, deep reforms of the U.N. and the IFIs, i.e., the existing international order, seem improbable, despite calls from the Global South for a fairer system. Nothing short of a worldwide catastrophe would seemingly be required, given that the League of Nations and the U.N. could only have arisen after such shocking and protracted global periods of violence as World War I and World War II. Imagine for a moment the conditions that would have to obtain in our world for it ever to be conceivable that the U.S. (or the U.K. or France or Russia or China) would lose or voluntarily give up its U.N. Security Council veto.

Endnotes