Symposium | Imperialism, Sovereignty and the Making of International Law at 20
Empire Comes Home?
The Continued Relevance of ISMIL today
By Sundhya Pahuja
The United States is flexing its muscles: Western countries with ‘special relationships’ are being bullied with tariffs; Canada is threatened with annexation; Western leaders are feeling ‘betrayed’. But they should not be surprised. Empire always comes home—the question is not whether but how.
Diplomats and international lawyers in the North who are wondering what to make of the present would do well to (re)turn to Anghie’s seminal work, Imperialism, Sovereignty and the Making of International Law (ISMIL). Published twenty years ago now, children of the South have long carried ISMIL around as a field-guide to international law. Anghie’s shoulders must be tired from all the people standing on them (myself included). But it’s not too late for those who might have written it off as special pleading, to notice—and learn from—the general applicability of its arguments.
As Anghie himself observed (with typical understatement) in the European Journal of International law in 2023, ‘many of the legal technologies developed to dispossess the Third World are now being redeployed in the First World’. The (American) empire in its present guise has long been familiar to the Third World. Greenlanders are being offered the ‘right’ to self-determination for the price of their natural resources (remember Katanga?). Ukraine is caught between the malevolence of two monstrosities, one a mytho-historical union, the other a racketeer: trading protection for resources (remember Iran?). Socialised health systems in Australia are being threatened with the can opener of American capital (remember the structural adjustment in Jamaica, Argentina, Mexico, Tanzania, etc.?) In the United States, domestic democracy is quickly being corrupted by authoritarian techniques redolent of fascism, as Karon has argued and Drayton predicted. If the feeling is new for Western actors, the tactics should be familiar: to paraphrase Césaire—long before rich countries were the victims of US Imperialism, they were its accomplices.
Besides those (law firms, university presidents, world leaders) still massaging their principles to ensure continued access or favourable treatment, there are some cling to the idea of a return to the ‘rules-based order’ as a talisman against Donald Trump. Some might call this ‘going high’ and shrug it off as a useless political stratagem in times in which shamelessness is rewarded. But the whole conversation is a distraction. As Anghie taught us long ago, the ‘rules-based order’ is itself an imperial formation. It is not just that international law has never been effective against the most powerful states. It is that the world of states and corporations, the idioms of sovereignty and self-determination, the rubrics of harm, compensation, wrongs and justice are all patterned by their imperial origins. The template comes pre-set with plugins for domination and dispossession. It is not that there is no difference between Democrats and Republicans from the inside, but from the outside, the difference is aesthetic (remember this meme of the American bomber?) For most of the world, the political economy of American foreign policy stays remarkably constant regardless of who is in power. It is true that many people will suffer from the abrupt cessation of the United States Agency for International Development’s (USAID) programs. But USAID is part of a machinery of development which enables the continued transfer of resources from the poorest to the richest in the name of improvement (Pahuja). The disagreement now is about which kind of domination is most effective—naked hard power, or hard power wrapped in liberal amelioration—and what kind of global self-projection do warring American elites want?
Even the act of bringing corporate titans into the oval office to advise on American Foreign Policy is not new. The Marshall Plan to rebuild Europe was led by corporate executives. Paul Hoffman, the man who oversaw the implementation of the Marshall Plan was the President of the Studebaker Corporation. Averell Harriman, the man who led the US president’s eponymous committee on foreign aid—instrumental in getting the Marshall Plan funded—was the founder of Harriman & Co, an important private investment bank. (Steil) Interventionism in the Third World by the United States has always been a public-private proposition. Hoffman was the first administrator of the United Nations Development Programme. How could we forget that Ford ‘whizz kid’ (and later President) Robert McNamara, led both the American war in Vietnam and served as the president of the World Bank in its most significant period of expansion? When leaders in the Third World began the slow task of building national economies after independence, they knew they had to nationalise the assets of key resources sold to foreign corporations by their colonisers. But even with compensation, nationalisation put a target on your back. Mossadeq, Allende, Lumumba … they knew only too well that the newly established intelligence agencies and much older large corporations were working together to provide and protect continuity of foreign ownership of property in the decolonised world. Perhaps what is different now is the return to more explicit forms of company-state alliance in the exercise of power (Stern).
The corporation was a latent presence in ISMIL. Anghie’s new work—adumbrated in his 2023 European Journal article—dives more deeply into some of its aspects. The question of according rights to aliens, for instance, had companies at its heart probably long before human beings had rights. And investment law is powerfully redescribed by Anghie as an ongoing system of reparations for corporations, one quickly embraced and normalised, in contrast to the predictions of catastrophe which accompany any call for reparations for slavery.
My own work centres on drawing out the presence of the corporation in making international law. Together with my collaborators, I am critically redescribing the triangle of company, state and international law from the early modern period to the present day. My research is revealing that rather than acting with delegated authority, the corporation was a rival jurisdictional form to the state, and imperialism a kind of extended, public-private partnership (see also Stern). This could apply historically to state law itself. So, if we understand the nation-state as a legal form which has historically gained ascendancy by asserting the authority of a single law in a fixed territory, displacing other laws in the name of state law (‘empire writ small’ as Fitzpatrick often said), then that assertion has been supported by corporations who benefit from the guarantee of rights (property. contract) that it permits. Or to put it differently, if we are familiar with the idea that dividing law school subjects as public or private causes us to forget the way that state law guarantees private law (Otto, Polanyi), it also encourages us to forget the role that those so called ‘private relations’ have historically played in turn, in authorising, performing and stabilising state authority (Pahuja).
A version of this mutually constitutive relationship is surfacing in Elon Musk’s assertions that he will colonise Mars. By what right does he make that claim? What status has Space X in the galaxy? The United States is supporting the asserted right but again, by what right? This feels like a return to the legal techniques of colonial conquest. In fact, the Deputy Leader of the Australian opposition made the analogy explicit when she liked the colonisation of Australia to Mars (Evans). The law of the coloniser is putatively extended by pure arrogation to a place it has no authority, as a companion to and support for a corporate claim, in return for the corporation helping to actualise the assertion of the authority of state law. Think of the so-called ‘monopoly’ of the East India company being asserted where British law did not run. Now though, it seems that the combination of state assertion plus corporate actualisation, is not just putatively extraterritorial in effect, but extraterrestrial.
Back on earth, corporations are collectively asserting a right to govern. Think of the tagline of Davos: ‘Committed to improving the state of the world’. Who died and made them boss? And anyway, this is as long as ‘improvement’ does not mean challenging the structures of enrichment (or immiseration) (Giridharadas). We have invited corporations to the governance table as ‘stakeholders’ at our peril. Remember the ‘free’ technology provided during the pandemic, to ‘track and trace’? The embedding of proprietary technology and corporations rich enough to pay private armies at the heart of a system of citizen surveillance. Who needs to gather data with the promise of frequent flyer points?
On the radio, commentators are bemoaning the destruction being wrought by Trump. But even as iPhones are being exempted from the tariffs as I write, I suspect that the supply chains will be righted faster than democracy. And the states and programs dependent on the poisoned chalice of American aid will benefit from the righting of neither. In his book, Anghie may not have sought to prefigure a dystopic future, but in his own quiet way, he did describe an historical ordering of the world which is continuous rather than discontinuous with our own. The jurisdictional forms he described are the ones in which we still live (Dorsett and McVeigh), and legal techniques he drew out remain operative. Unless we want to be what Viet Thanh Nguyen calls ‘Empire’s Diplomats’, what is required to tackle this imperial homecoming is more than the restoration of the velvet glove. Remembering and extending the lessons of ISMIL for our times is a good place to begin.
Sundhya Pahuja is Melbourne Laureate Professor, ARC Kathleen Fitzpatrick Laureate Professor and Director of the Laureate Program in Global Corporations and International Law at the University of Melbourne.