Symposium | Imperialism, Sovereignty and the Making of International Law at 20
Response by Professor Antony Anghie
I am deeply grateful to the authors who have engaged so thoughtfully and generously with Imperialism, Sovereignty and the Making of International Law (ISMIL). The essays range widely. Lin Zhaoran explores how a book is received within a particular context: the cultural, scholarly, political milieu of China. Sahiba Maqbool and Zeina Jallad study the how colonial technologies are reproduced, and the struggles of people fighting for self-determination in Kashmir and Palestine. Sundhya Pahuja explores the shifting role of the corporation at a time when ‘Empire comes home’. And then there is the large issue raised by Phattharaphong Saengkrai, one that TWAIL scholars have grappled with before because of the ambiguous legacies of international law: is there hope? Can international law indeed make good on its promise and respond to the crises of our time?
I fear I cannot do justice to the far-reaching issues raised by these authors whose explorations provide rich insights and commentary that proceed well beyond the confines of my book. Thus, I will simplify the essays considerably by discussing some of the major issues they raise.
Lin Zhaoran’s essay that so meticulously traces the reception of ISMIL in Chinese scholarly circles raises the large and intriguing question of how a work is received within the scholarly ecology of a particular country. I appreciate the interest that Chinese scholars have taken in my work even while they harbor strong reservations about the broader implications of that work for the practice and methodology of international law. According to Lin’s account, one of the principal reasons for the ambivalence of Chinese scholars is that my critique of Eurocentrism and imperial international law accords with Chinese scholarship on the history of international law, but my critique of sovereignty generates far more uncertainty and skepticism. I, like many TWAIL scholars, think of sovereignty in two different ways. Self-determination, the Third World’s campaign to win sovereignty was fundamental to liberation. Sovereignty is the beginning point for everything else. At the same time, as Sahiba Maqbool points out, I am concerned by the ways in which the post-colonial state itself reproduces imperial practices, both in relation to its own communities, as well as in its external relations. Minorities and Indigenous peoples are often the worst victims of these practices. This argument is no doubt discomforting to Third World states and scholars for whom sovereignty is unassailable.
Scholarship is inevitably shaped by the national context of which it is a part. I can only speculate here, but I wonder about the extent to which Chinese scholarship is influenced by China’s dual position, first as a leading member of the Third World, which was present at the Bandung Conference and continues to mark and celebrate the achievements of Bandung, and second, as an emerging Great Power or a ‘New Great Power’ in Cai Congyan’s terms. China has been remarkably successful, after many decades of struggle in using the existing system of international law to ensure its own progress by exercising emphatically its internal sovereignty while gradually connecting with a globalised world through, for instance, joining the WTO. China’s success in using international law is not entirely surprising. International law is made by powerful states for powerful states, and a state that is powerful, as China is, can use the system to its advantage and further its interests through it. It is more likely that a Great Power, a permanent member of the Security Council, can advance and protect its interests through the current system. Thus, Jia Bingbing asserts that, ‘[t]he policies implemented by the Chinese government can achieve more ideal results in international practice when based on respect of the current legal order’. Jia writes further that this approach ‘is more beneficial to the “Third World”, including China’.
In ISMIL, I was exploring precisely the issue of whether and to what extent the Third World could pursue its goals through the ‘current legal order’ (a term that needs elaboration). Through my study of legal and political initiatives such as the New International Economic Order, I tried to understand why the Third World, despite its numbers, ingenuity, and the several campaigns waged over many decades in many international fora, has failed to create an equitable international system. Given the extended crises of global inequality, climate change, and escalating debt, questions arise as to whether the Third World has been able to bring about meaningful change within the current system. Thus, the contrast between myself and Professor Jia is marked. I should hasten to add, as others have noted—and here I refer to Phattharaphong Saengkrai’s reading of ISMIL—that I do not advocate the complete repudiation of the current system and the protections it offers, the doctrines of sovereign equality and human rights being foremost among them. The issue for me is whether it is possible to work on both fronts simultaneously: to transform the current legal order with the given tools, and to call for much more drastic changes when those tools seem insufficient. In ISMIL I was trying to explore the limitations of the current legal order when confronted with the ongoing crises of the time, clearing the way hopefully for a different jurisprudence. Or at least, persuading the reader that a different jurisprudence is needed. I think the task of illuminating the role of international law in furthering injustice is important, even at the ‘cost of appearing foolish or naïve’.
The issue of how Chinese scholars develop a ‘theoretical subjectivity’ and a ‘self-consistent legal narrative’ to use Lin’s evocative phrases is a compelling one. The question for me, as it has been for some time, is whether it is possible for China to be at the same time a great power and an anti-imperial force, and how it positions itself not only in relation to the West and in particular, the United States, but also the Third World. Historically at least, Great Powers have been invariably imperial. I suspect that for many developing countries—and perhaps not only for developing countries—an international system driven by competing great powers is undesirable.
Sahiba Maqbool’s searching study illustrates how the post-colonial state, in this case India, used many of the same colonial doctrines that it opposed in the international arena to further its own interests in Jammu and Kashmir. For example, the doctrine of state succession was used against newly independent states to argue that they had ‘succeeded’ to the debts incurred by their erstwhile colonial masters. In the context of Kashmir, India relies on the doctrine of state succession to justify its claims to the territory. Maqbool alludes to the many features of colonial international law—unequal treaties, corporations, succession, protectorates—that shaped Jammu and Kashmir. India’s earlier stance, that Jammu and Kasmir had been ‘ceded’ to India by a treaty between India and Maharaj Hari Singh was an attempt to use yet another classic colonial practice, the treaty of cession, to support its position. Maqbool’s study demonstrates how colonial logics continue and, in her own words, how India has ‘reproduced the legal architecture that had once entrenched its own colonisation’. India’s ongoing militarisation of Kashmir and violation of human rights—Kashmir is one of the most militarised regions of the world—draws upon yet another colonial technology that has been eagerly seized upon, refined and expanded by the post-colonial state, the resort to ‘emergency powers’ and the accompanying rhetoric of terrorism. Colonial technologies are still with us through the actions of the post-colonial state.
Underlying all these developments are the anxieties, resentments, insecurities, and tragedies arising from the Partition and the emergence of India and Pakistan as sovereign states. Added to this is the post-colonial fear of secession that haunts GA Resolution 1514, a fear exacerbated by attempts of departing colonial powers to foster secession, as exemplified by Belgium’s promotion of Katanga’s effort to secede from the Congo. And then there is the further violence and trauma of the birth of Bangladesh.
Another way of framing the Kashmir dispute in terms of post-colonial imperatives that reproduce colonialism, as Rishabh Bajoria has done in his searching recent work, is to see Kashmir as caught between competing claims and compulsions of India and Pakistan. Both these states have territorial ambitions and both intent on development, a driving force of the post-colonial state that often lends itself to colonial practices. These drives are evident in the Indus Water Treaty where the rivers passing through Kashmir are in effect divided up between India and Pakistan. The entire regime is established for the interests of Pakistan and India who were able to agree, at least initially between themselves, about the division of these resources with little regard to the people of Kashmir, effacing their legal presence and identity. The task then remains of recovering the independent voice of the people of Kashmir.
Zeina Jallad’s powerful essay illustrates yet another instance of colonial technologies being applied and refined to manage and disempower a people, the people of Palestine. The Oslo Accords and the Paris Protocols created the illusion of self-government and a transition plan with prospects of real sovereignty to be achieved in time. In reality, as Jallad points out, the system that was supposed to lead to sovereignty put in place economic conditions that caused immense hardship and undermined the prospect of meaningful political sovereignty for Palestinians.
We might see the theme of subordinated and conditional sovereignty that Jallad explores with such depth as symptomatic, as a further iteration of a process that commenced with the League of Nations, when contemporary international law and institutions engaged with the ‘problem’ of Palestine, by establishing the Palestine Mandate in 1920. ‘His Britannic Majesty’ was appointed Mandate Power. This, then, was a much earlier version of subordinated sovereignty. Indeed, in ISMIL I explored how the Mandate System created lasting forms of economic dependence. The Mandate had many shortcomings in protecting the rights of Palestinians, but even the limited protections the Mandate did specify, to ensure the ‘well-being and development’ of the people, were ineffective. A group of Palestinians in England are now pursuing reparations and apology for the UK’s actions in Palestine. In so doing, they are revealing a history that should be acknowledged and addressed. Jallad’s essay has enduring significance, not only because it outlines an aspect of the history of the Palestinians that is not generally known—and there is so much that we do not know—but because there is a larger lesson here. Her essay shows how the international community formulates regimes which appear to provide a pathway to self-determination and human rights and then ignores the granular details of the impossible everyday conditions created for those living under that regime. Her work provides a vivid account of another form of slow violence that the Palestinians had to endure.
The larger and more haunting question that Jallad raises is the relationship between Palestine and international law as reflected in her title, ‘The Law Was Never Meant to Protect Us’. Her essay is a further contribution to a theme that has been explored in depth by the superb works of scholars such as Noura Erakat, who has powerfully argued that law and justice are only for some, not for Palestinians, and Ardi Imseis, who demonstrates Palestine as the ultimate subaltern in the system of international law. The General Assembly has continuously affirmed the right of Palestine to self-determination; the International Court of Justice (ICJ), first in the Wall and then in the Occupied Palestinian Territories advisory opinions has again in effect affirmed Palestine’s right to become a sovereign state. And yet, over the decades, sovereignty seems a distant, if not ever receding prospect.
Hamas’s deadly attack and capture of hostages on October 7th constituted grave violations of international law. Israel immediately launched a massive military operation that prompted proceedings in the ICJ. The ICJ has issued provisional measures that call on Israel to refrain from violating the plausible rights of Palestinians to protection against genocide. And yet, Israel’s violence continued and intensified in different forms and registers: the destroyed hospitals and universities, the bombings, the starvation. Human rights organisations such as Amnesty International and B’Tselem have concluded that Israel is committing genocide, as has the United Nations Independent Commission of Inquiry on the Occupied Territories. But human rights have no effect without the power to enforce them, and the states that are in a position to do so continued to abet and enable the violence. Given all this, I feel it is presumptuous of me to disagree with Jallad’s conclusion, that ‘the law was not meant to protect us’.
International law may not have protected Palestinians, but I suspect that Palestine has profoundly changed international law—at least that international law which aspires to create a peaceful and humane world in which the protection of human rights is a fundamental tenet. The Holocaust has a central, defining place in the history of human rights. I will venture to suggest that for many of my generation, even those of us who studied human rights from a great distance from the West where these rights were said to originate, the historical and political reality we had in mind and that gave meaning, urgency, and inspiration to the abstract texts of human rights law, was the Holocaust. It was hardly possible for any developments in human rights, and international criminal law to be detached from the images of the Holocaust and Nuremberg and the inspiring works of Lauterpacht, Lemkin, and Sohn and others as they strove with dedication and ingenuity to create international law norms, systems of human rights and international criminal law, which would protect people all over the world from atrocities. Gaza has now utterly changed everything, in ineffable ways. The unique tragedy of the Holocaust and the unique tragedy of Gaza are now, for international human rights law, inextricably linked. To the extent that there is a ‘sentimental life’ of international law, and especially for younger generations, it is surely now Gaza that is at its emotional centre. Palestine is an ongoing and somehow recurring tragedy that must be faced if international law is to make good on its claims and ambitions to protect human dignity. It compels at least a rethinking and expansion of the meaning of human rights and self-determination and humanitarian law. In the midst of the death and ruins, Palestine is generating its own language and jurisprudence.
In her incisive contribution, Sundhya Pahuja points to the role of corporations in imperialism, a topic that she and her larger project team are studying in a new and revealing ways. Her essay explores two themes: the return of imperial violence to the centers of Empire themselves; and the role of corporations in international governance and the furtherance of imperialism. One way of thinking about current developments is that they involve three versions of imperialism that intersect, complement and compete with each other. The first, neo-liberal imperialism, became ascendant with the end of the Cold War, the creation of the WTO, the expansion of the discourse of human rights and foreign investment regimes. The second is the period which we live in, where aggressive nationalism and conquest—we can think of Gaza, Ukraine, and Trump’s declarations of annexing Greenland and Canada—have returned in a startling way and authoritarianism is on the ascendant. The third form of imperialism is corporate imperialism, an imperialism that was very much behind neo-liberal imperialism. It is corporate imperialism, allied with the formidable powers of shifting financial systems and technological advancements that has in many ways brought about the shift from neoliberal imperialism to the current moment of nationalist empire. Corporations are now both adapting to the complications of that transition and seeking to expand even further in these new conditions. Corporations, whose global identity was largely developed and unquestioned in an earlier time, must now re-align with this nationalist Empire.
There is a strong tendency now to think nostalgically about the period of neo-liberal imperialism. It was a system that operated through the language of human rights, market-driven economic development, and an efflorescence of international institutions and regimes. This might be thought of as ‘stable Empire’, an empire that justifies itself as operating according to and furthering the cause of law and order even and especially when using force. It projected itself as a rule-driven system, and this was important for international lawyers, the keepers, guardians, authors, and interlocutors of these rules. This system, I argue in ISMIL, was unfair and imperial. But it provided, for instance, through the WTO, some measure of stability and predictability. With ingenuity and sacrifice, developing countries and many people within them could live with and even to some extent prosper under this system. The complication with this vision, however, is that there really is no such thing as ‘stable Empire’. Empire by its very character is about extraction and disempowerment. Until recently, the consequence of these processes, of unfolding Empire, was not felt in any significant way in the West; violence was concentrated largely in the Third World whose peoples experienced economic inequality and immiseration, rising and uncontrollable levels of debt, environmental degradation and forced migration, even as globalisation promised to usher in a brave new world of prosperity and peace for all. Now, however, as Pahuja points out, ‘Empire has come Home’. Inequality and immiseration are an inescapable reality of life in the West itself. And the reversals that have followed are dramatic: it is the United States, the architect of the WTO, that is intent on undermining it. It is trite to note that economic hardship inevitably leads to nationalist sentiment that traditionally projects minorities and aliens as the enemy and that must keep producing enemies to justify itself. The blowback that Pahuja insightfully notes is evident everywhere, as the Trump administration describes Chicago and Portland in terms redolent of a troublesome Third World city or country. It is now Portland that is assessed through the language of ‘unable or unwilling’. The point is it is neo-liberal Empire that has generated this Empire of nationalism and conquest. Return to what is seen by many now to be the halcyon days of international law is not the solution, as Pahuja soberly notes.
Finally, there is Phattharaphong Saengkrai’s subtle and eloquent meditation on a theme of hope. As he points out, this is a theme that has long preoccupied TWAIL scholars, and the essay builds on the insights of Karin Mickelson’s powerful account of hope and its place in TWAIL scholarship. As Mickelson suggests, TWAIL hope is, perhaps has always been, a hope born out of an initial disillusion—if not despair—precisely because most TWAIL scholars have harbored hopes for international law which have then been replaced, as a result of further study and historical experience, with disillusionment. At least that was my own trajectory as perceptively noted by Sundhya Pahuja in her review of ISMIL some twenty years ago. And yet, international law is not abandoned. This theme of hope and despair of course, resonates even more at a time when international law is questioned with unprecedented insistence. This is on account of the apparent powerlessness and inconsistent application of international law, the ineffectual United Nations, the flagrant violation of fundamental principles of human rights and the use of force, the disturbing deployment of a law developed to protect people into a justification for violence. We should not underestimate the shifts brought about in the international system in a world that has witnessed Gaza, Ukraine, the Sudan, shifts driven by Great Power rivalries and the ambitions and obsessions of nationalism that seem entirely indifferent to the idea of international law. And yet, I would speculate all the questions causing such anxiety are entirely familiar to many people of the Third World who have endured and have had to endure debt driven crises, civil wars, and environmental devastation. And it is often these people who have no choice but to confront these tragedies with solidarity and hope. They are inspiring. This is a point made by Karin Mickelson in her original article. Third World hope is a tragic hope born out of disillusion with international law. It may even be the case that this species of disillusion, one born out of a familiarity with all the failures and contradictions of international law, and the role it plays in reproducing imperialism is an existential feature, precondition even, of being a TWAIL scholar.
There are two aspects to Saengkrai’s essay. The first is: is it possible to develop a different, more encompassing vision of international law? The second is: even if such a jurisprudential vision is possible, will it be of any use in a world overwhelmed by climate change, tyranny, atrocity and indifference to the very idea of law itself?
As to the first, Saengkrai focuses on the openness of international law and its potential to further justice. He focuses on the efforts by AALCO and Professor Sompong Sucharitkul in particular, to rethink the law of treaties. He argues that reformulating the sources of international law could be a means of reshaping international law. It is one of my concerns, one of the TWAIL concerns, to point to these works, to recover these efforts and histories. The work of jurists such as Christopher Weeramantry and Professor Abi-Saab continues to be inspiring because it shows how ‘traditional’ international law might be expanded to expose injustice and further transformative causes. In the case of Judge Weeramantry, his opinions in Nuclear Weapons and Gabčíkovo illustrate this potential. His jurisprudence brilliantly shows how the traditions of those ignored by the history of international law—Indigenous people and non-European peoples—might be drawn upon to enrich international law as it seeks solutions to ongoing problems. And of course, there are many other such jurists from all over the world whose innovative and inspiring work TWAIL has tried to recognise. If what we term the ‘current system of international law’ encompasses such approaches, then there is hope for international law. And international law has, however imperfectly, been a means of responding to the convulsions of the world. It is also an old idea that conscience animates or should animate the work of international lawyers.
The second question raised by Saengkrai is equally, if not more, difficult. How can hope emerge out of despair? We cannot think of hope in isolation from other human experiences. We have to consider hope within a broader context. Hope has to relate to meaning. What meaning will there be in our lives if we give up on the possibility of working for a better world? International law is a language by which we can envision a better world. It is a way of being in the world, a mode of seeking a way in the world. It cannot explore the human condition with the same intimacy and depth as fiction, or music, art, or religion. And yet, it immerses us in the destructive elements of life, in issues of war and atrocities, as well as in issues of identity, humanity, and resistance. The failures of international law are myriad, no more so than in Gaza, Sudan, Ukraine, and Myanmar. And yet paradoxically, it is international law that has become a crucial language by which to understand and act in the world. More intimately, the search for meaning, for understanding, no matter what disturbing insights that search may reveal, is one of the defining characteristics of being human. So, in both these cases, hope and meaning are allied; the hope, certainly of change, but at the very least, the hope of understanding, of awareness of the world and our place in it. And that understanding itself is a part of the process of change. Although not under circumstances of their own choosing, people do make their own history.
I now tend to think of ISMIL as ‘the book’ rather than ‘my book’, as it has extended well and truly beyond my grasp and intentions-and I am now hazy as to what my intentions were in the first place. I often feel that writers such as the authors in this Symposium have far more interesting conversations with ‘my’ book than they would with me. This sometimes makes me feel a little resentful. After all, where would the book be without me? As I hope to have suggested, each of these essays is a rich study in its own right. The book is no more than a prompt, if that. Perhaps that is what gives me the greatest satisfaction. Redundance is its own legacy. And finally, after all these years, it seems the book has earned the accolade of acronymism. Call it ISMIL.
Antony Anghie is Professor of Law at the National University of Singapore and University of Utah. The opinions expressed in this essay are personal.