Antony Anghie, Imperialism, Sovereignty, and the Making of International Law, Cambridge University Press, 2005.
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Antony Anghie argues that ‘colonialism was central to the development of international law, and that sovereignty doctrine emerged out of the colonial encounter’, giving rise to 'a set of structures that continually repeat themselves at various stages in the history of international law' (2-3). However, this prompted questions that he was unable to answer, concerning the seemingly inescapable logic of the 'dynamic of difference':
‘I use the term ‘dynamic of difference’ to denote, broadly, the endless process of creating a gap between two cultures, demarcating one as ‘universal’ and civilized and the other as ‘particular’ and uncivilized, and seeking to bridge the gap by developing techniques to normalize the aberrant society. My argument is that this dynamic animated the development of many of the central doctrines of international law - most particularly, sovereignty doctrine. The dynamic is self-sustaining and indeed, as I shall argue, endless; each act of arrival reveals further horizons, each act of bridging further differences that international law must seek to overcome. It is in this way that international law extends itself horizontally, to encompass the entire globe and, once this is achieved, vertically, within each society, to ensure the emergence of civilized states’ (4).
So, he reasoned: ‘If ... the colonial encounter, with all its exclusions and subordinations, shaped the very foundations of international law, then grave questions must arise as to whether and how it is possible for the post-colonial world to construct a new international law that is liberated from these colonial origins’ (8). Over 300 pages further on, though, he still felt unable to give an answer. In the face of the necessarily endless drive of international law towards universality, he remarked, '[p]ioneering Third World jurists [had] attempted to transform the old, Eurocentric, international law into an international law responsive to the needs, the interests and the histories of the developing world' (312). But still-unresolved questions followed:
'If this imperial structure of ideas is so pervasive within the doctrines and jurisprudence of international law, then a question that naturally arises is: why is this the case? This is only one of the many questions raised by the issues I have examined here to which I have no clear answer. Perhaps it has to do with the very character of sovereignty itself' (316).
'The further important issue is the question of whether it is possible to create an international law that is not imperial; that can, in fact, further justice, increase the well being of humanity, without relapsing into the imperial project that I have attempted to sketch here. This is a large question, to which again I have no adequate answer. It is not my intention here to be deterministic, to relentlessly demonstrate that colonialism has always been reproduced by international law over the last five centuries of its existence and that this will therefore inevitably continue to be the case. Rather, I see this work as expressing certain historically based concerns which, if recognised, can surely be remedied. In making this argument regarding imperial sovereignty, I hope I have also demonstrated that there is no inherent logic to sovereignty doctrine; that imperialism has been continuously contested by jurists, peoples and individuals from both the First and the Third Worlds; and that it is possible to imagine and argue for very different understandings of the meaning of sovereignty - and, indeed, of international law'' (317).
This conclusion left various loose ends, first because of the questions that Anghie could not answer; second because the fact of contestation and the possibility of different understandings of sovereignty did not mean that sovereignty doctrine had no inherent logic, but rather that it was a particular logic (albeit one that Anghie could not identify), but not the only possible one; and third because Anghie introduced some further complexity into his argument in his closing pages. First, offering the summary statement that'[c]olonizer and colonized: this is the basic dichotomy that has structured the "civilizing mission" which has been the focus of my analysis', he remarked that it was not a true dichotomy, as 'the relationship between these two roles continually shifts with history and circumstance' (318), and the US had gone from colony to imperial power. Second, in a clarification that seems to have been forgotten, he added that there was 'no inherent virtue in the ideologies or principles articulated by Third World states, as 'hierarchy and inequality, the strict maintenance of the division between the "civilized" and the "barbarian", is far from peculiar to Western societies' (319); and that, following Edward Said, the search for purely "Western" or "non-Western" ideas is futile, as cultures have continuously influenced each other over many centuries'. He held out the hope of 'a truly universal international law that promotes a compelling vision of international justice', conceived in what were quintessentially liberal terms: 'The point is not to condemn the ideas of "the rule of law" "good governance" and "democracy" as being inherently imperial constructs, but rather to question how it is that these ideals have become used as a means furthering imperialism and why it is that international law and institutions seem so often to fail to make these ideals a reality'. And he concluded, despite the loose ends he identified, that 'there is no substitute for continuously questioning developments in international law on the basis of a vision of international justice that is informed by an understanding of the colonial history of international law and its enduring effects' (320). This was a long-held conviction. He had made pretty much the same argument twelve years early, in his first publication, on the Nauru case. Although the primary focus there was on the claims arising out of Australia's role in the exploitation of phosphate under a League of Nations Mandate and subsequently under UN Trusteeship, Anghie set it in a larger context:
'The relationship between colonialism and international law is the central theoretical focus of this Article. The imperial idea that cultural differences divided the European and non-European worlds is important to an understanding of the colonial project' - the dispossession of the non-European world and the implementation of a civilizing mission of suppressing and transforming
peoples perceived as different, as "other." This dichotomy between the two worlds posed novel problems for European jurists who had to account for the colonial project in legal terms. Attempts to solve these problems gave rise to many of international law's central doctrines, particularly sovereignty doctrine. This Article seeks to displace approaches to sovereignty doctrine that traditionally focus on how order is created among sovereign states without giving much weight to the history of the doctrine. These approaches are Eurocentric in outlook. This Article is different because it emphasizes the problem of cultural difference and not the issue of order among sovereign states. Second, this Article seeks to show that sovereignty doctrine, as applied to colonies, was not simply a European idea extended to peripheral areas. Rather, it developed out of the colonial encounter, and adopted a form different from accepted notions of Western sovereignty. Third, this Article avoids presenting the history of sovereignty as simply the background necessary to arrive at the conceptual question of how order is maintained among states. My argument is that conceptual and historical renditions of sovereignty are related and that the history of the doctrine is selectively included in its most contemporary "conceptual" version. This raises the issue of what is included and excluded and why? The inquiry into sovereignty must be understood in the context of the "civilizing mission." This mission advanced European civilization as embodying universal standards. Jurists, however, had difficulty claiming that European civilization, in all its avowed specificity, was "universal" and binding on non-European societies. Furthermore, the argument asserted a fundamental difference between Europe and non-Europe even as it sought to eradicate this difference. My argument is that the civilizing mission, the historical maintenance of a dichotomy between what was posited as two different cultural worlds, combined with the task of bridging the resulting gap, provided international law with a dynamic that had important consequences for the generation of international institutions and doctrines, particularly sovereignty doctrine' (Anghie 1993: 447-8).
And he commented further, towards the end of the paper: 'Colonizer and colonized: this is the central dichotomy used to frame the Nauru experience and the larger themes it represents. That these concepts have an enduring significance is suggested by the fact that so many vital contemporary debates are presented as debates between former colonial powers and their subjects, the developed and the developing. And yet, my postulated dichotomy does not hold true. Australia is both colonizer and colonized' (Anghie 1993: 505).
Twelve years on, then, Anghie was in the same position, except that the United States had replaced Australia as the exemplar. There was something very odd about this: the 'larger context' that Anghie offered in 1993 was developed briefly alongside the Nauru case, but bore virtually no relationship to it. Nauru, less than nine square miles in area, with a population at the time of little more than a thousand, fortuitously became a German colony in 1886 (officially annexed 1888) as a consequence of the drawing of a straight line from lat. 8°50'S and long. 159°50'E to lat. 6°N and long. 173°30'E on a British Admiralty chart as British and German negotiators in Berlin sought to define spheres of interest in the Solomons and eastern Micronesia respectively (Viviani 1970: ix, 20-22). Then a modest source of copra, it was of little interest to anyone until it was discovered in 1900 that it was essentially a mass of high grade phosphate, with a narrow coastal fringe. In 1905-6 the 'right' to mine phosphate was acquired from the German Jaluit Gesellschaft by the Pacific Phosphate Company, in which British, Australian, and New Zealand interests were involved, and mining began in 1907. As Viviani comments: 'In the agreements between the German Government, the Jaluit Gesellschaft, and the Pacific Phosphate Company, only two clauses referred to the inhabitants of the island; one made it necessary for the mining company to give notice of commencement of operations so as to allow ‘the necessary measures required in the interests of the natives’ to be taken. The other allowed the Gesellschaft to assist the company in ‘any claims by the natives of the Island against the Company’. Concern for the Nauruans was marked by its paucity emphasising that the phosphate concession was based, if not on conquest, then on the island’s occupation' (ibid: 34-5). The Nauruans were granted a royalty of approximately 1.4 per cent of the value of phosphate shipped. Production was already in British hands and even before Germany's defeat in the First World War the island came under Australian control. In these circumstances:
'Lord Milner, Secretary of State for Colonies, arranged for representation of Australia and New Zealand in a conference to settle the demands for Nauru phosphate amicably. This conference resulted in the Nauru Island Agreement, signed on 2 July 1919 between His Majesty’s Government in London, the Commonwealth of Australia, and the Dominion of New Zealand. Its preamble claimed that a mandate for the administration of the island had been conferred by the Allied Powers upon the British Empire but it was not until seventeen months later, on 17 December 1920, that the mandate was officially granted to the British Empire' (ibid: 43).
Before this, the three governments had bought out the Pacific Phosphate Company, and allocated shares of the phosphate between themselves, so that when the Permanent Mandates Commission of the League of Nations came into being at the end of 1920 it was faced with a fait accompli. Nauru, with its estimated one hundred million tons of phosphate, duly became a class 'C' mandate, essentially annexed to the British Empire and administered by Australia.
There were two limiting features to this analysis. First, Anghie adopted a liberal cosmopolitan perspective, and second, he could not see beyond the horizon of colonialism. The two were related, and if the second was specific to Anghie, the first was more broadly a characteristic of discourse on international law, and of international law itself. What these two features share is a lack of interest in the political economy of colonialism, and in particular its relationship to the politics of production and exchange.
This is evident from the start. On the very first page, Anghie invokes the 1986 Nauru Commission of Inquiry, in which he participated in a junior capacity. It concerned the disastrous consequences of phosphate mining on this Pacific island, first under a League of Nations mandate awarded to Australia, New Zealand, and the United Kingdom, then under UN Trusteeship. It was this experience, he says, that led him to focus on the relationship between colonialism, sovereignty, and international law.
There is a formal contradiction in the first of these two formulations: if each act of bridging endlessly reveals further differences, there can never be a world made up entirely of ‘civilized states’. But if a world made up entirely of ‘civilized states’ is imaginable, the ‘dynamic of difference’ may not necessarily be a permanent feature either of international law or the international system. The second formulation reveals the positive agenda that informed Anghie's analysis: from his liberal cosmopolitan perspective, the mark of colonial origins remained strong, and the prospects for an egalitarian order that would escape them seemed remote, but all the same it was a project that had to be pursued.
And if this is so, there must be other forces at work in the shaping of international law and international order. So, anyway, I shall suggest.
But it was over-stated. It was highly selective in its approach, and more a lawyer’s brief than a comprehensive and even-handed analysis. First, after a very brief chapter on Vitoria, it moved straight to the mid-nineteenth century, despite describing Grotius in passing as ‘the principal forerunner of modern international law’ (13). Second, it paid no attention to property, production and commerce, despite the emphasis placed by Vitoria and others on the right to travel and trade freely, as distinct from the right to occupy and rule. Third, in dismissing the alternative argument that international law and sovereignty doctrine arose exclusively out of concerns related to the dealings of European powers with each other, and had nothing to do with their identity as imperial as well as sovereign powers, it ignored completely the problem of order within Europe itself. Fourth, after the briefest of reflections on the Spanish case, it did not explore the trajectory of any colonial encounter until the late nineteenth century. Fifth, as a consequence of all this, it did not decisively resolve the relative significance of colonialism and the colonial encounter in the making of sovereignty doctrine and the development of international law; and sixth, and of most relevance for the present day, it left open the question of whether the ‘dynamic of difference’ it identified was necessarily a permanent feature of international law, or alternatively one that might be overcome.
My argument, which is consistent with all the evidence that Anghie provides, is that from the start it was the right to travel and trade that was the driving force behind the development of international law, and that this has shaped successive doctrines of sovereignty up to the present day. Private international law based on contract regulated international trade long before the onset of European colonial rule, and where property rights were acknowledged and trade could be pursued without colonial occupation and rule, it was - either through the recognition of local 'sovereigns' or through non-sovereign bodies such as the British and Dutch East India Companies. Formal occupation and direct colonial rule was all but a last resort,
Not 'how is order created among sovereign states' but 'what global order will best secure the development of capitalism on a global scale'. Not important merely to assert that 'all sovereigns are equal and exercise absolute power within their own territory', but to secure a universal system comprised of independent territorial states whose sovereigns are all committed to the development and preservation of the disciplines that will secure the hegemony of capital on a global scale. In other words, it turns on the appropriate form of sovereignty at a moment when the world market is all-embracing, and the hegemony of capital needs to be secured. The 'creation of international law in its necessarily endless drive towards universality is based on the compelling invocation of this [primitive, , violent, uncivilised and therefore non-sovereign] "other"' (312).
'I argue that the application of sovereignty doctrine to the colonies cannot be properly understood as the simple extension of sovereignty, as it developed in Europe, into the peripheral colonies. According to this version of the conventional history, the European model of sovereignty, established by the defining event of the Peace of Westphalia, was gradually extended to the non-European peripheries. My argument, by contrast, is that sovereignty was improvised out of the colonial encounter, and adopted unique forms which differed from and destabilized given notions of European sovereignty. As a consequence, Third World sovereignty is distinctive, and rendered uniquely vulnerable and dependent by international law' (6).
Throughout, the text oscillates between presenting colonialism as a contributory or a defining influence on international law. So, he develops the claim that 'the colonial encounter shaped the underlying structures of the doctrine' (6), as follows:
'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 subordinations, shaped the very foundations of international law, then grave questions must arise as to whether and how it is possible for the post-colonial world to construct a new international law that is liberated from these colonial origins. The question is an old one: can the post-colonial world deploy for its own purposes the law which had enabled its suppression in the first place? It is approached here from the different perspective offered by focusing on the impact of the colonial encounter on the underlying structures of international law' (8).
Classical international law certainly was complicit in the imperial project and the exploitation which accompanied it. Even so, for the colonial encounter to shape the very foundations of international law is one thing, and for the colonial encounter to impact on the underlying structures of international law is another. In fact, Anghie's principal contribution (32-114) is to show how nineteenth century positivist jurists systematically reshaped international law, rejecting previous appeals to 'natural law', placing a distinction between the 'universal civilisation of Europe' on the one hand and the 'uncivilised' world beyond 'Europe' on the other at the centre of their analysis, and discounting the evidence of sovereignty in non-European states on the grounds that they stood outside international society. It was, as it were, 'the wrong kind of sovereignty'. And the 'dynamic of difference' to which this gave rise ('the endless process of creating a gap between two cultures, demarcating one as ‘universal’ and civilized and the other as ‘particular’ and uncivilized, and seeking to bridge the gap by developing techniques to normalize the aberrant society', 4) created a massive and perhaps insuperable obstacle to the emergence of a body of international law that could treat all states as equal.
In Chapter 2, 'Finding the peripheries: colonialism in nineteenth-century international law', then, Anghie develops the argument that 'the manoeuvres engaged in by positivist jurists with respect to colonialism may be best understood in terms of what might be termed the ‘dynamic of difference’: jurists using the conceptual tools of positivism postulated a gap, understood principally in terms of cultural differences, between the civilized European and uncivilized non-European world; having established this gap they then proceeded to devise a series of techniques for bridging this gap, of civilizing the uncivilized’ (37). They did so on the understanding, contra natural law, that 'the sovereign state was the foundation of the entire legal system, and their broad project was to reconstitute the entire framework of international law based on this premise. Thus positivists rejected completely the naturalist notions that sovereign states were bound by an overarching natural law or that state action had to be guided by a higher morality. The sovereign was the highest authority, and could be bound only by that to which it had agreed. Thus for positivists, the rules of international law were to be discovered not by speculative inquiries into the nature of justice or teleology, but by a careful study of the actual behaviour of states and the institutions and laws which they created’ (43).
But of course the jurists concerned were not simply trying to discover the rules of international law. They were trying to frame them in such a way that the rule of some states over other communities and territories could be justified and perpetuated. Anghie shows how Westlake, Lawrence, Oppenheim and Walker, all associated with the University of Cambridge, sought to challenge their fellow positivist John Austin, who argued not only that only sovereigns could make law, but also that it followed that as there was no global sovereign, there could be no such thing as international law - it was nothing more than a 'morality' (44-5). They did so by making society, rather than sovereignty, the 'central concept used to construct the system of international law' (48), and as Anghie comments:
'This is an important shift. for implicit in the idea of society is membership; only those states accepted into society and which agree upon principles regulating their behaviour can be regarded as belonging to society. The concepts of society, furthermore, enabled the formulation and elaboration of the various cultural distinctions that were crucial to the constitution of the sovereignty doctrine' (48).
Quite so. Although not flagged in the title of the book, this argument, understanding sovereignty in terms of a prior definition of 'society', is crucially important. And it is worth noting in passing that one of its leading proponents, John Westlake, was an impeccable liberal, an early supporter of female suffrage, and a participant in the founding of the Working Men's College in London in 1854.
No immutable, transcendent laws, 50.
Defining and excluding the uncivilised 52-65: for Westlake diff between civilized and not depended on 'the presence or absence of certain institutions or in their greater or lesser perfection' 55. 'Once the connection between "law" and "institutions" had been established, it followed from this premise that jurists could focus on the character of institutions, a shift, which facilitated the racialization of law by delimiting the notion of Lawton very specific European institutions' (55) - NB European, let's see. Occupation of land 55.
So first, only civilized states were admitted to the society of states; second, sovereignty entailed control over territory, i.e. became 'territorial sovereignty' 57. Supported by the separate test of society ("membership of the family of nations").
Native personality and managing the colonial encounter 65-100. All this in the context of the fact that: 'Jurisprudentially, the task confronting the positivists was that of formulating the doctrines which could legally account for [the] expansion of Europe' (65). Anghie sees positivists as expelling non-European states from civilized society, then setting tests for readmission 65. Three questions considered: how the positivist method, with its ambitions to be scientific and coherent, effected 'the assimilation of the non-European world into international society, and the different doctrines and techniques it developed for this purpose'; second, the notion of "quasi-sovereignty" developed in order to remedy 'problematic aspects of positivist theory of assimilation'; and third, the characterisation of the different peoples of Asia, Africa, and the Pacific, and its consequences. Focus on Berlin Africa Conference of 1884-5.
[THE QUESTION IS, WHAT WAS THE OVERALL LOGIC OF THESE THREE THINGS?]
Assimilation: treaty-making, colonisation, meeting the 'standards of civilisation' (Siam, Japan), protectorate agreements. Treaties problematic, as in principle they could not be made with entities outside the society of lawful states.
Vitoria problematic generalised. Property: ownership and dominium. Trade as a right over-rides issues of sovereignty.
Sison and Redín, 625: ' trade is subject to moral principles; free trade contributes to human flourishing and moral perfection through justice and friendship; states have a duty to protect and guarantee free trade as well as the free movement of peoples in travel, tourism, and migration'. 'Ius gentium refers to laws based on natural justice that govern relationships among human beings as “peoples,” regardless of citizenship in states', ibid. 'Ius gentium may be considered a precedent of international law. There are essential differences, nonetheless. The main difference refers to the statist character of modern international law, which recognizes only states as subjects' (627). 'Thus Vitoria proclaims freedom of international trade as a natural right, identifying three features: first, trade must be mutually beneficial; second, it is above the will of states; and third, it must be exercised in accordance with common utility (Urdánoz, 1960)' (629).
'So far, we have studied mainly Vitoria’s relections on the Spanish conquest of the New World. However, drawing on other writings, particularly his commentaries on Aquinas’s Summa Theologiae, we may be able to develop more fully his ideas on business or commerce, not only as legitimate activities, but also as constituting a worthy Christian profession, open to moral perfection (Castillo Cordova & Zorroza, 2015). Much of this relies on his theory of a “just price,” the agreed price (“common estimation”) between buyer and seller in the free market, absent ignorance, force, or fraud (Cendejas, 2018). Thus Vitoria opposes monopolies, monopsonies, and hoarding. Besides the cost of production, the just price also takes into account demand and supply, the subjective value or desirability of goods, the risks they entail in transport, competition, and so forth (Vitoria, 1991: 83–85). Consequently, merchants who buy goods where abundant and sell them where scarce may command a higher price for their service (Vitoria, 1991: 86). Here lies the particular expertise or virtue of merchants, in their keen speculative ability' (635).
Related but separate question of how the world market came into being
Vitoria - law of war and rights of dependent peoples 14. 'The problem confronting Vitoria, then, was not the problem of order among sovereign states, but the problem of creating a system of law to account for relations between societies which he understood to belong to two very different cultural orders, each with its own ideas of propriety and governance' (16). 'Indians' are not deprived of rights of ownership and dominium by virtue of unbelief. They are capable of reason, so: 'Natural law administered by sovereigns rather than divine law articulated by the Pope becomes the source of international law governing Spanish-Indian relations' (20).
Right to travel and sojourn 20. So 'jus gentium, naturalizes and legitimates a system of commerce and Spanish penetration. Spanish forms of economic and political life are all-encompassing because ostensibly supported by doctrines prescribed by Vitoria’s system of universal law' (21). [Not precisely true, if they do not reflect ius gentium].
trade and freedom of commerce 67.
'In contrast to the view that the colonial confrontation illuminates a minor and negligible aspect of sovereignty doctrine, my argument is that no adequate account of sovereignty can be given without analysing the constitutive effect of colonialism on sovereignty. Colonialism was not an example of the application of sovereignty; rather, sovereignty was constituted through colonialism' (37-8).
References
Anghie, Antony. 1993. 'The Heart of My Home: Colonialism, Environmental Damage, and the Nauru Case', Harvard International Law Journal, 34, 2, pp. 445-506.
Anghie, Antony. 1996. 'Francisco de Vitoria and the Colonial Origins of International Law', Social & Legal Studies, 5, 3, 321-336.
Anghie, Antony. 1999. 'Finding the peripheries: sovereignty and colonialism in nineteenth-century international law'. Harvard International Law Journal, 40, 1, pp. 1-80.
Kennedy, David. 1996. 'International Law and the Nineteenth Century: History of an Illusion', Leiden Journal of International Law, 12, 1, 9-133.
Kennedy, David. 1999. 'The Disciplines of International Law and Policy', Nordic Journal of International Law, 65, 385-420.
Viviani, Nancy. 1970. Nauru: Phosphate and Political Progress, Canberra: ANU Press.
Anghie 1993
It was through this system and its successor, the trusteeship system, that international law and the civilizing mission promised to fulfill its task of incorpo- rating all territories into international society on equal terms as part of one, universal system 448
This Article's exploration of the doctrines of self-determination and permanent sovereignty over natural resources demonstrates, rather, that the dynamic of the civilizing mission persists in ways that have an enduring significance for international law 448-9.
'well-being and development' forms a 'sacred trust for civilization' 456
‘I use the term ‘dynamic of difference’ to denote, broadly, the endless process of creating a gap between two cultures, demarcating one as ‘universal’ and civilized and the other as ‘particular’ and uncivilized, and seeking to bridge the gap by developing techniques to normalize the aberrant society. My argument is that this dynamic animated the development of many of the central doctrines of international law - most particularly, sovereignty doctrine. The dynamic is self-sustaining and indeed, as I shall argue, endless; each act of arrival reveals further horizons, each act of bridging further differences that international law must seek to overcome. It is in this way that international law extends itself horizontally, to encompass the entire globe and, once this is achieved, vertically, within each society, to ensure the emergence of civilized states’ (4).
So, he reasoned: ‘If ... the colonial encounter, with all its exclusions and subordinations, shaped the very foundations of international law, then grave questions must arise as to whether and how it is possible for the post-colonial world to construct a new international law that is liberated from these colonial origins’ (8). Over 300 pages further on, though, he still felt unable to give an answer. In the face of the necessarily endless drive of international law towards universality, he remarked, '[p]ioneering Third World jurists [had] attempted to transform the old, Eurocentric, international law into an international law responsive to the needs, the interests and the histories of the developing world' (312). But still-unresolved questions followed:
'If this imperial structure of ideas is so pervasive within the doctrines and jurisprudence of international law, then a question that naturally arises is: why is this the case? This is only one of the many questions raised by the issues I have examined here to which I have no clear answer. Perhaps it has to do with the very character of sovereignty itself' (316).
'The further important issue is the question of whether it is possible to create an international law that is not imperial; that can, in fact, further justice, increase the well being of humanity, without relapsing into the imperial project that I have attempted to sketch here. This is a large question, to which again I have no adequate answer. It is not my intention here to be deterministic, to relentlessly demonstrate that colonialism has always been reproduced by international law over the last five centuries of its existence and that this will therefore inevitably continue to be the case. Rather, I see this work as expressing certain historically based concerns which, if recognised, can surely be remedied. In making this argument regarding imperial sovereignty, I hope I have also demonstrated that there is no inherent logic to sovereignty doctrine; that imperialism has been continuously contested by jurists, peoples and individuals from both the First and the Third Worlds; and that it is possible to imagine and argue for very different understandings of the meaning of sovereignty - and, indeed, of international law'' (317).
This conclusion left various loose ends, first because of the questions that Anghie could not answer; second because the fact of contestation and the possibility of different understandings of sovereignty did not mean that sovereignty doctrine had no inherent logic, but rather that it was a particular logic (albeit one that Anghie could not identify), but not the only possible one; and third because Anghie introduced some further complexity into his argument in his closing pages. First, offering the summary statement that'[c]olonizer and colonized: this is the basic dichotomy that has structured the "civilizing mission" which has been the focus of my analysis', he remarked that it was not a true dichotomy, as 'the relationship between these two roles continually shifts with history and circumstance' (318), and the US had gone from colony to imperial power. Second, in a clarification that seems to have been forgotten, he added that there was 'no inherent virtue in the ideologies or principles articulated by Third World states, as 'hierarchy and inequality, the strict maintenance of the division between the "civilized" and the "barbarian", is far from peculiar to Western societies' (319); and that, following Edward Said, the search for purely "Western" or "non-Western" ideas is futile, as cultures have continuously influenced each other over many centuries'. He held out the hope of 'a truly universal international law that promotes a compelling vision of international justice', conceived in what were quintessentially liberal terms: 'The point is not to condemn the ideas of "the rule of law" "good governance" and "democracy" as being inherently imperial constructs, but rather to question how it is that these ideals have become used as a means furthering imperialism and why it is that international law and institutions seem so often to fail to make these ideals a reality'. And he concluded, despite the loose ends he identified, that 'there is no substitute for continuously questioning developments in international law on the basis of a vision of international justice that is informed by an understanding of the colonial history of international law and its enduring effects' (320). This was a long-held conviction. He had made pretty much the same argument twelve years early, in his first publication, on the Nauru case. Although the primary focus there was on the claims arising out of Australia's role in the exploitation of phosphate under a League of Nations Mandate and subsequently under UN Trusteeship, Anghie set it in a larger context:
'The relationship between colonialism and international law is the central theoretical focus of this Article. The imperial idea that cultural differences divided the European and non-European worlds is important to an understanding of the colonial project' - the dispossession of the non-European world and the implementation of a civilizing mission of suppressing and transforming
peoples perceived as different, as "other." This dichotomy between the two worlds posed novel problems for European jurists who had to account for the colonial project in legal terms. Attempts to solve these problems gave rise to many of international law's central doctrines, particularly sovereignty doctrine. This Article seeks to displace approaches to sovereignty doctrine that traditionally focus on how order is created among sovereign states without giving much weight to the history of the doctrine. These approaches are Eurocentric in outlook. This Article is different because it emphasizes the problem of cultural difference and not the issue of order among sovereign states. Second, this Article seeks to show that sovereignty doctrine, as applied to colonies, was not simply a European idea extended to peripheral areas. Rather, it developed out of the colonial encounter, and adopted a form different from accepted notions of Western sovereignty. Third, this Article avoids presenting the history of sovereignty as simply the background necessary to arrive at the conceptual question of how order is maintained among states. My argument is that conceptual and historical renditions of sovereignty are related and that the history of the doctrine is selectively included in its most contemporary "conceptual" version. This raises the issue of what is included and excluded and why? The inquiry into sovereignty must be understood in the context of the "civilizing mission." This mission advanced European civilization as embodying universal standards. Jurists, however, had difficulty claiming that European civilization, in all its avowed specificity, was "universal" and binding on non-European societies. Furthermore, the argument asserted a fundamental difference between Europe and non-Europe even as it sought to eradicate this difference. My argument is that the civilizing mission, the historical maintenance of a dichotomy between what was posited as two different cultural worlds, combined with the task of bridging the resulting gap, provided international law with a dynamic that had important consequences for the generation of international institutions and doctrines, particularly sovereignty doctrine' (Anghie 1993: 447-8).
And he commented further, towards the end of the paper: 'Colonizer and colonized: this is the central dichotomy used to frame the Nauru experience and the larger themes it represents. That these concepts have an enduring significance is suggested by the fact that so many vital contemporary debates are presented as debates between former colonial powers and their subjects, the developed and the developing. And yet, my postulated dichotomy does not hold true. Australia is both colonizer and colonized' (Anghie 1993: 505).
Twelve years on, then, Anghie was in the same position, except that the United States had replaced Australia as the exemplar. There was something very odd about this: the 'larger context' that Anghie offered in 1993 was developed briefly alongside the Nauru case, but bore virtually no relationship to it. Nauru, less than nine square miles in area, with a population at the time of little more than a thousand, fortuitously became a German colony in 1886 (officially annexed 1888) as a consequence of the drawing of a straight line from lat. 8°50'S and long. 159°50'E to lat. 6°N and long. 173°30'E on a British Admiralty chart as British and German negotiators in Berlin sought to define spheres of interest in the Solomons and eastern Micronesia respectively (Viviani 1970: ix, 20-22). Then a modest source of copra, it was of little interest to anyone until it was discovered in 1900 that it was essentially a mass of high grade phosphate, with a narrow coastal fringe. In 1905-6 the 'right' to mine phosphate was acquired from the German Jaluit Gesellschaft by the Pacific Phosphate Company, in which British, Australian, and New Zealand interests were involved, and mining began in 1907. As Viviani comments: 'In the agreements between the German Government, the Jaluit Gesellschaft, and the Pacific Phosphate Company, only two clauses referred to the inhabitants of the island; one made it necessary for the mining company to give notice of commencement of operations so as to allow ‘the necessary measures required in the interests of the natives’ to be taken. The other allowed the Gesellschaft to assist the company in ‘any claims by the natives of the Island against the Company’. Concern for the Nauruans was marked by its paucity emphasising that the phosphate concession was based, if not on conquest, then on the island’s occupation' (ibid: 34-5). The Nauruans were granted a royalty of approximately 1.4 per cent of the value of phosphate shipped. Production was already in British hands and even before Germany's defeat in the First World War the island came under Australian control. In these circumstances:
'Lord Milner, Secretary of State for Colonies, arranged for representation of Australia and New Zealand in a conference to settle the demands for Nauru phosphate amicably. This conference resulted in the Nauru Island Agreement, signed on 2 July 1919 between His Majesty’s Government in London, the Commonwealth of Australia, and the Dominion of New Zealand. Its preamble claimed that a mandate for the administration of the island had been conferred by the Allied Powers upon the British Empire but it was not until seventeen months later, on 17 December 1920, that the mandate was officially granted to the British Empire' (ibid: 43).
Before this, the three governments had bought out the Pacific Phosphate Company, and allocated shares of the phosphate between themselves, so that when the Permanent Mandates Commission of the League of Nations came into being at the end of 1920 it was faced with a fait accompli. Nauru, with its estimated one hundred million tons of phosphate, duly became a class 'C' mandate, essentially annexed to the British Empire and administered by Australia.
There were two limiting features to this analysis. First, Anghie adopted a liberal cosmopolitan perspective, and second, he could not see beyond the horizon of colonialism. The two were related, and if the second was specific to Anghie, the first was more broadly a characteristic of discourse on international law, and of international law itself. What these two features share is a lack of interest in the political economy of colonialism, and in particular its relationship to the politics of production and exchange.
This is evident from the start. On the very first page, Anghie invokes the 1986 Nauru Commission of Inquiry, in which he participated in a junior capacity. It concerned the disastrous consequences of phosphate mining on this Pacific island, first under a League of Nations mandate awarded to Australia, New Zealand, and the United Kingdom, then under UN Trusteeship. It was this experience, he says, that led him to focus on the relationship between colonialism, sovereignty, and international law.
There is a formal contradiction in the first of these two formulations: if each act of bridging endlessly reveals further differences, there can never be a world made up entirely of ‘civilized states’. But if a world made up entirely of ‘civilized states’ is imaginable, the ‘dynamic of difference’ may not necessarily be a permanent feature either of international law or the international system. The second formulation reveals the positive agenda that informed Anghie's analysis: from his liberal cosmopolitan perspective, the mark of colonial origins remained strong, and the prospects for an egalitarian order that would escape them seemed remote, but all the same it was a project that had to be pursued.
And if this is so, there must be other forces at work in the shaping of international law and international order. So, anyway, I shall suggest.
But it was over-stated. It was highly selective in its approach, and more a lawyer’s brief than a comprehensive and even-handed analysis. First, after a very brief chapter on Vitoria, it moved straight to the mid-nineteenth century, despite describing Grotius in passing as ‘the principal forerunner of modern international law’ (13). Second, it paid no attention to property, production and commerce, despite the emphasis placed by Vitoria and others on the right to travel and trade freely, as distinct from the right to occupy and rule. Third, in dismissing the alternative argument that international law and sovereignty doctrine arose exclusively out of concerns related to the dealings of European powers with each other, and had nothing to do with their identity as imperial as well as sovereign powers, it ignored completely the problem of order within Europe itself. Fourth, after the briefest of reflections on the Spanish case, it did not explore the trajectory of any colonial encounter until the late nineteenth century. Fifth, as a consequence of all this, it did not decisively resolve the relative significance of colonialism and the colonial encounter in the making of sovereignty doctrine and the development of international law; and sixth, and of most relevance for the present day, it left open the question of whether the ‘dynamic of difference’ it identified was necessarily a permanent feature of international law, or alternatively one that might be overcome.
My argument, which is consistent with all the evidence that Anghie provides, is that from the start it was the right to travel and trade that was the driving force behind the development of international law, and that this has shaped successive doctrines of sovereignty up to the present day. Private international law based on contract regulated international trade long before the onset of European colonial rule, and where property rights were acknowledged and trade could be pursued without colonial occupation and rule, it was - either through the recognition of local 'sovereigns' or through non-sovereign bodies such as the British and Dutch East India Companies. Formal occupation and direct colonial rule was all but a last resort,
Not 'how is order created among sovereign states' but 'what global order will best secure the development of capitalism on a global scale'. Not important merely to assert that 'all sovereigns are equal and exercise absolute power within their own territory', but to secure a universal system comprised of independent territorial states whose sovereigns are all committed to the development and preservation of the disciplines that will secure the hegemony of capital on a global scale. In other words, it turns on the appropriate form of sovereignty at a moment when the world market is all-embracing, and the hegemony of capital needs to be secured. The 'creation of international law in its necessarily endless drive towards universality is based on the compelling invocation of this [primitive, , violent, uncivilised and therefore non-sovereign] "other"' (312).
'I argue that the application of sovereignty doctrine to the colonies cannot be properly understood as the simple extension of sovereignty, as it developed in Europe, into the peripheral colonies. According to this version of the conventional history, the European model of sovereignty, established by the defining event of the Peace of Westphalia, was gradually extended to the non-European peripheries. My argument, by contrast, is that sovereignty was improvised out of the colonial encounter, and adopted unique forms which differed from and destabilized given notions of European sovereignty. As a consequence, Third World sovereignty is distinctive, and rendered uniquely vulnerable and dependent by international law' (6).
Throughout, the text oscillates between presenting colonialism as a contributory or a defining influence on international law. So, he develops the claim that 'the colonial encounter shaped the underlying structures of the doctrine' (6), as follows:
'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 subordinations, shaped the very foundations of international law, then grave questions must arise as to whether and how it is possible for the post-colonial world to construct a new international law that is liberated from these colonial origins. The question is an old one: can the post-colonial world deploy for its own purposes the law which had enabled its suppression in the first place? It is approached here from the different perspective offered by focusing on the impact of the colonial encounter on the underlying structures of international law' (8).
Classical international law certainly was complicit in the imperial project and the exploitation which accompanied it. Even so, for the colonial encounter to shape the very foundations of international law is one thing, and for the colonial encounter to impact on the underlying structures of international law is another. In fact, Anghie's principal contribution (32-114) is to show how nineteenth century positivist jurists systematically reshaped international law, rejecting previous appeals to 'natural law', placing a distinction between the 'universal civilisation of Europe' on the one hand and the 'uncivilised' world beyond 'Europe' on the other at the centre of their analysis, and discounting the evidence of sovereignty in non-European states on the grounds that they stood outside international society. It was, as it were, 'the wrong kind of sovereignty'. And the 'dynamic of difference' to which this gave rise ('the endless process of creating a gap between two cultures, demarcating one as ‘universal’ and civilized and the other as ‘particular’ and uncivilized, and seeking to bridge the gap by developing techniques to normalize the aberrant society', 4) created a massive and perhaps insuperable obstacle to the emergence of a body of international law that could treat all states as equal.
In Chapter 2, 'Finding the peripheries: colonialism in nineteenth-century international law', then, Anghie develops the argument that 'the manoeuvres engaged in by positivist jurists with respect to colonialism may be best understood in terms of what might be termed the ‘dynamic of difference’: jurists using the conceptual tools of positivism postulated a gap, understood principally in terms of cultural differences, between the civilized European and uncivilized non-European world; having established this gap they then proceeded to devise a series of techniques for bridging this gap, of civilizing the uncivilized’ (37). They did so on the understanding, contra natural law, that 'the sovereign state was the foundation of the entire legal system, and their broad project was to reconstitute the entire framework of international law based on this premise. Thus positivists rejected completely the naturalist notions that sovereign states were bound by an overarching natural law or that state action had to be guided by a higher morality. The sovereign was the highest authority, and could be bound only by that to which it had agreed. Thus for positivists, the rules of international law were to be discovered not by speculative inquiries into the nature of justice or teleology, but by a careful study of the actual behaviour of states and the institutions and laws which they created’ (43).
But of course the jurists concerned were not simply trying to discover the rules of international law. They were trying to frame them in such a way that the rule of some states over other communities and territories could be justified and perpetuated. Anghie shows how Westlake, Lawrence, Oppenheim and Walker, all associated with the University of Cambridge, sought to challenge their fellow positivist John Austin, who argued not only that only sovereigns could make law, but also that it followed that as there was no global sovereign, there could be no such thing as international law - it was nothing more than a 'morality' (44-5). They did so by making society, rather than sovereignty, the 'central concept used to construct the system of international law' (48), and as Anghie comments:
'This is an important shift. for implicit in the idea of society is membership; only those states accepted into society and which agree upon principles regulating their behaviour can be regarded as belonging to society. The concepts of society, furthermore, enabled the formulation and elaboration of the various cultural distinctions that were crucial to the constitution of the sovereignty doctrine' (48).
Quite so. Although not flagged in the title of the book, this argument, understanding sovereignty in terms of a prior definition of 'society', is crucially important. And it is worth noting in passing that one of its leading proponents, John Westlake, was an impeccable liberal, an early supporter of female suffrage, and a participant in the founding of the Working Men's College in London in 1854.
No immutable, transcendent laws, 50.
Defining and excluding the uncivilised 52-65: for Westlake diff between civilized and not depended on 'the presence or absence of certain institutions or in their greater or lesser perfection' 55. 'Once the connection between "law" and "institutions" had been established, it followed from this premise that jurists could focus on the character of institutions, a shift, which facilitated the racialization of law by delimiting the notion of Lawton very specific European institutions' (55) - NB European, let's see. Occupation of land 55.
So first, only civilized states were admitted to the society of states; second, sovereignty entailed control over territory, i.e. became 'territorial sovereignty' 57. Supported by the separate test of society ("membership of the family of nations").
Native personality and managing the colonial encounter 65-100. All this in the context of the fact that: 'Jurisprudentially, the task confronting the positivists was that of formulating the doctrines which could legally account for [the] expansion of Europe' (65). Anghie sees positivists as expelling non-European states from civilized society, then setting tests for readmission 65. Three questions considered: how the positivist method, with its ambitions to be scientific and coherent, effected 'the assimilation of the non-European world into international society, and the different doctrines and techniques it developed for this purpose'; second, the notion of "quasi-sovereignty" developed in order to remedy 'problematic aspects of positivist theory of assimilation'; and third, the characterisation of the different peoples of Asia, Africa, and the Pacific, and its consequences. Focus on Berlin Africa Conference of 1884-5.
[THE QUESTION IS, WHAT WAS THE OVERALL LOGIC OF THESE THREE THINGS?]
Assimilation: treaty-making, colonisation, meeting the 'standards of civilisation' (Siam, Japan), protectorate agreements. Treaties problematic, as in principle they could not be made with entities outside the society of lawful states.
Vitoria problematic generalised. Property: ownership and dominium. Trade as a right over-rides issues of sovereignty.
Sison and Redín, 625: ' trade is subject to moral principles; free trade contributes to human flourishing and moral perfection through justice and friendship; states have a duty to protect and guarantee free trade as well as the free movement of peoples in travel, tourism, and migration'. 'Ius gentium refers to laws based on natural justice that govern relationships among human beings as “peoples,” regardless of citizenship in states', ibid. 'Ius gentium may be considered a precedent of international law. There are essential differences, nonetheless. The main difference refers to the statist character of modern international law, which recognizes only states as subjects' (627). 'Thus Vitoria proclaims freedom of international trade as a natural right, identifying three features: first, trade must be mutually beneficial; second, it is above the will of states; and third, it must be exercised in accordance with common utility (Urdánoz, 1960)' (629).
'So far, we have studied mainly Vitoria’s relections on the Spanish conquest of the New World. However, drawing on other writings, particularly his commentaries on Aquinas’s Summa Theologiae, we may be able to develop more fully his ideas on business or commerce, not only as legitimate activities, but also as constituting a worthy Christian profession, open to moral perfection (Castillo Cordova & Zorroza, 2015). Much of this relies on his theory of a “just price,” the agreed price (“common estimation”) between buyer and seller in the free market, absent ignorance, force, or fraud (Cendejas, 2018). Thus Vitoria opposes monopolies, monopsonies, and hoarding. Besides the cost of production, the just price also takes into account demand and supply, the subjective value or desirability of goods, the risks they entail in transport, competition, and so forth (Vitoria, 1991: 83–85). Consequently, merchants who buy goods where abundant and sell them where scarce may command a higher price for their service (Vitoria, 1991: 86). Here lies the particular expertise or virtue of merchants, in their keen speculative ability' (635).
Related but separate question of how the world market came into being
Vitoria - law of war and rights of dependent peoples 14. 'The problem confronting Vitoria, then, was not the problem of order among sovereign states, but the problem of creating a system of law to account for relations between societies which he understood to belong to two very different cultural orders, each with its own ideas of propriety and governance' (16). 'Indians' are not deprived of rights of ownership and dominium by virtue of unbelief. They are capable of reason, so: 'Natural law administered by sovereigns rather than divine law articulated by the Pope becomes the source of international law governing Spanish-Indian relations' (20).
Right to travel and sojourn 20. So 'jus gentium, naturalizes and legitimates a system of commerce and Spanish penetration. Spanish forms of economic and political life are all-encompassing because ostensibly supported by doctrines prescribed by Vitoria’s system of universal law' (21). [Not precisely true, if they do not reflect ius gentium].
trade and freedom of commerce 67.
'In contrast to the view that the colonial confrontation illuminates a minor and negligible aspect of sovereignty doctrine, my argument is that no adequate account of sovereignty can be given without analysing the constitutive effect of colonialism on sovereignty. Colonialism was not an example of the application of sovereignty; rather, sovereignty was constituted through colonialism' (37-8).
References
Anghie, Antony. 1993. 'The Heart of My Home: Colonialism, Environmental Damage, and the Nauru Case', Harvard International Law Journal, 34, 2, pp. 445-506.
Anghie, Antony. 1996. 'Francisco de Vitoria and the Colonial Origins of International Law', Social & Legal Studies, 5, 3, 321-336.
Anghie, Antony. 1999. 'Finding the peripheries: sovereignty and colonialism in nineteenth-century international law'. Harvard International Law Journal, 40, 1, pp. 1-80.
Kennedy, David. 1996. 'International Law and the Nineteenth Century: History of an Illusion', Leiden Journal of International Law, 12, 1, 9-133.
Kennedy, David. 1999. 'The Disciplines of International Law and Policy', Nordic Journal of International Law, 65, 385-420.
Viviani, Nancy. 1970. Nauru: Phosphate and Political Progress, Canberra: ANU Press.
Anghie 1993
It was through this system and its successor, the trusteeship system, that international law and the civilizing mission promised to fulfill its task of incorpo- rating all territories into international society on equal terms as part of one, universal system 448
This Article's exploration of the doctrines of self-determination and permanent sovereignty over natural resources demonstrates, rather, that the dynamic of the civilizing mission persists in ways that have an enduring significance for international law 448-9.
'well-being and development' forms a 'sacred trust for civilization' 456