LL278
Colonialism and Decolonisation/Self-Determination Revision Notes
Colonialism:
Main History of International Law (per Evans):
points/facts: European Middles Ages offers universality both philosophically
and jurisprudentially in natural law, and politically in Roman
Empire and Roman Law; natural law and jus gentium were laws
of states and private individuals, comprising a collection of laws
common to all nations
But this is unlikely to be held in day-to-day relation of different
States and peoples with one another
Grotius was known as ‘founding father of international law’;
distinguished natural law as applying to all, and international
law as a combination of law of nature and international law (the
latter had its origin in the expression of human will)
Hobbes alternatively was a naturalist and believes the natural
right of self-preservation which led to a justified and legitimate
state and laws; although relations between states were still in
‘state of nature’, they had to adhere to contracts as in their own
states
Westphalia 1648; Peace settlement within framework of Roman
Empire with older medieval idea of ‘independent’ States being
also subject to certain higher norms; providing a template for
later on which marked division of labour between national and
international spheres
Then came System of Europe who created a new peace
settlement with a continent wide set of political arrangements
that would prevent revolution; policed by major powers
(Britain, Prussia, Russia and Austria) – not considered to be
great framework at all
Rise of positivism: Law became seen as scientific, technocratic,
political law between States, not as law above States, with
States as principal subject of international law
This era was period in which we first see international
community ‘legislating’ by way of multilateral treaties
But, economic inequality grew steadily even as growth
accelerated. The subjection of much of the world to the
European imperial powers, together with the ‘gunboat
diplomacy’ that sometimes followed in the wake of legal claims,
stored up a strong reservoir of ill-will between the developed
and the developing worlds. Nor did the Concert of Europe
prove adequate, in the longer term, to the maintenance of
international peace. The Franco-Prussian War of 1870–71
proved, all too dramatically, that war between major powers on
the continent of Europe was far from unthinkable
Then came WW1 – view was that nothing short of a permanently
existing organisation dedicated to maintenance of peace would
suffice = formed in League of Nations and Versailles Treaty
, 1919 – didn’t completely end war/aggression, but was a time for
development of international law
Post 1945 – United Nations replaced League of Nations and ICJ –
international law as we know it today developed from here with
its bodies/lawyers and modern challenges
(see other notes)
1. Theoretical Context
Recent writing on the interrelation of international law and
colonialism draws inspiration from ‘post-colonial’ theory. Post-colonial
theory is concerned with the processes of colonialism and its
contemporary legacies in post-independence states and communities.
One aspect of this is the question of how colonial rule was
legitimated, and what part international law played in that regard.
2. Territorial Title
International legal norms dealing with territorial title have specified
five ‘modes of acquisition’: occupation, prescription, cession,
conquest and accretion. The role of international law in legitimating
dispossession is perhaps most vivid in the case of occupation. Under
this mode, title is acquired over terra nullius – land belonging to no-
one. But what constitutes terra nullius, and who decides this?
3. Unequal Treaties
Treaties played a central part both in colonial dispossession and in
‘informal empire’. (The latter refers to the practice whereby, although
there was no formal assumption of sovereignty over territory,
constraints were imposed on local authorities, typically aimed at
forcing open their economies and securing free trade for the
European power’s businesses.) The treaties concerned were unequal,
most obviously in the sense that they were dramatically
asymmetrical, but this did not affect their legality.
4. Sovereignty
The concept of sovereignty was similarly used to justify colonial
dispossession, inasmuch as colonised peoples were deemed incapable
of exercising sovereignty. According to Antony Anghie, this is not
simply because of the way the concept was applied; it is because of
the way the concept was re-fashioned – assuming its modern form –
in the specific circumstances of the colonial encounter. If Anghie is
right, we need to consider the possibility that this central structural
concept of international law remains marked by its origins.
Core
readings
Gerry 3 pertinent questions:
Simpson
Internatio 1) Does international law influence or found the diplomatic system, or is
nal Law in it largely anirrelevance or trifling preoccupation?
,Diplomati 2) Has international law been a force ford good (global well-being) in
c History diplomatic history?
2012 3) Is it possible to speak intelligbly of a single body of norms, or way of
thinking/acting, called ‘international law’?
= Might lead us to think of international law as virtuous and marginal,
constitutive and responsible, or a combination of norm and aspiration
Virtuous/marginal:
From this perspective, international law is mostly a frustrated project
to civilise global politics, humanise war, tame anarchy, retrain the
Great Powers and ensure fairer re-distributive outcomes
Ie finds itself aligned with a vaguely leftitst, liberal, progressive
politics or anti-politics; conferences to combat global warming or
create international criminal courts, international law is cast ina.
Heroic role, capable of providing the necessary tools or language
(and politicians stand in their way)
Because of the overwhelming power of politics (and politicians)
international law is also understood as a marginal enterprise which is
reinforced at moments of political crisis – international law is largely
ignored in matters of great economic and political importance
This may be advantageous for international law; remaining marginal
allows international lawyers to advance virtuous ends with an
absence of responsibility (always being right means never being held
to account)
Constitutive
International law may also be thought of as constitutive of global
politics; international lawyers have created a system without which
international diplomacy would shrivel and international political life
would be unrecognisable
If we take this view, international law has participlated in and
facilitated the conditions for many practices that are thought to be
impediments to a just world order eg society of comeptitive states
with entitlements over their own citizenry are creations of
international law not obstacles to its implementation
This may be seen if we look from Westphalian sovereignty through
European colonialism to late-modern global capitalism – it could be
argued that at each stage, international law has established,
legitamised and structured defining relationships of that era = may
be a force for bad
, Law and aspiration
The above two views depend on us assuming that we can speak of
‘international law’ as a coherent activity that is somehow one thing or
another
There may be two ways to look at the international order that is : a)
the functional inteernational law based on deeper covenants of
cooperation or permanent interests or b) a political international law
that is opportunistic
However this view may not survive closer examination ie example of
the Charter of the United Nations = a key foundation of international
legal and political order but also an opportunistic response to a
particular and immediate situation (conseuqences of German
aggression in 1939)
Often international societies are the product of post-traumitc
constitutional architectures
Episodic story of international law in diplomacy
Empire to sovereignty:
Westphalia has come to represent a point of inauguration for modern
international law and for the modern state – a moment when the core
concepts of sovereignty, hegemony and balance became part of
international laws official inventory; it coincides with the work of
Hobbes, Grotius and Pufendorf = a self conscious effort to
contractualise relations between European states and formalises a
transition from empire to sovereignty in European political order
This period confirms the centrality of a language of law and legality
that states deploy in their relations with each other – however it also
rejected the structural ideal that inter-state relations can be
organised on the basis of a centrally enforced accountability for
illegal acts (affirmation of sovereignty can be thought of as a defeat
for a particular conception of international law as the basis for a
world society)
Sovereignty to empire (colonialism):
This transition can be seen in 2 ways: a) International law tempers
empire then dismantles it b) International law facilitates empire then
obscures it
Some think of international law as anti-imperial; doctrines of
sovereign equality or human rights are applied on behalf of colonised
peoples in order to promote self-determination or liberation – the
