Symposium | Imperialism, Sovereignty and the Making of International Law at 20
Sources of Hope for
Anti-Imperial International Law
By Phattharaphong Saengkrai
Faculty of Law, Thammasat University
1. Introduction
There is an apparent paradox of hope in Imperialism, Sovereignty and the Making of International Law. The central arguments in this magisterial book do not immediately inspire much hope to Third World peoples, and yet Antony Anghie insists that they are not trapped in despair. He stresses that in international legal doctrine and jurisprudence, ‘imperialism is a constant’ (p 315): over the past five centuries, international law has largely maintained its imperial linguistic structure, creating similar discursive dichotomies that justify the domination of the Third World by the powerful First World. Anghie analyses the foundational concept of sovereignty to illustrate and elaborate on this core argument. But he also cautiously expresses hope for the emancipatory use of international law. Discussing the possibility of anti-imperial international law in the concluding chapter, Anghie writes:
‘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’ (p 317).
Karin Mickelson has persuasively resolved this paradox. Relying partly on Terry Eagleton’s discussion in Hope without Optimism, Mickelson distinguishes between hope, faith, and optimism. She argues that the Third World Approaches to International Law (TWAIL) project as a whole and its distinctive critique are profoundly marked by hope, even though TWAIL has now abandoned optimism and maintained only attenuated faith in law. She insists on the necessity of hope to sustain collective action, especially ‘as Third World peoples continue to struggle in the face of what are seemingly impossible odds’ (p 25).
This essay takes Mickelson’s analysis further and asks: how can hope for anti-imperial international law be nourished? Drawing more fully on Eagleton’s conception, I conceptualise hope as a rational desire for something regarded as attainable to show that one important starting point to cultivate hope is to grasp its rational aspect. My central claim is that the primary reason for Anghie’s cautious hope in his scholarship lies in the undecidability of the struggles for law and legal institutions. This sense of openness and undecidability, I will also suggest, can be reinforced by revisiting the Third World’s reconstruction of sources of international law.
2. Sources of Anghie’s Hope
The crux of Eagleton’s discussion on the nature of hope is that ‘hope consists of desire plus expectancy’ (p 59). Since hope encompasses expectation for what is hoped for, to maintain it requires exercise of rational judgement about such expectation. In other words, to hope for something is not simply to desire it, ‘but to believe that it is attainable, to acknowledge it as a good, to trust that it will come about, to look forward to its arrival with a sense of expectancy, and so on, all of which involves reason’ (p 51). Eagleton’s conceptualisation of hope is instructive for reflecting on Anghie’s scholarship, as his cautiously expressed hope resembles what Eagleton characterises as a paradigmatic mode of hope in political history. This is not the hope for incremental success, inevitable progress, or ultimate victory. Rather, it is the hope that persists in the wake of successive failures and defeats—a sort of tragic hope. In Eagleton’s words:
‘the most authentic kind of hope is whatever can be salvaged, stripped of guarantees, from a general dissolution. It represents an irreducible residue that refuses to give way, plucking its resilience from an openness to the possibility of unmitigated disaster’ (p 114).
A close reading of Imperialism, Sovereignty and the Making of International Law shows that the ultimate source of Anghie’s hope—his rational desire for anti-imperial international law—lies in the undecidability of the struggles over what a legal signifier, such as ‘sovereignty,’ means. In his account, many First and Third World jurists’ palpable hope for global justice and a more egalitarian world order has survived in the continuous contestation over sovereignty and the law over the past 500 years. Their enduring demand mirrors Anghie’s own hope for anti-imperial international law and Third World cosmopolitanism that he discusses in the concluding chapter and reaffirms in his 2023 reflection on TWAIL. Battles for international law feature prominently in Chapter 4 of Imperialism, Sovereignty and the Making of International Law. Anghie focuses on economic development, including foreign investment contracts, to illustrate how Third World states’ attempt to invoke newly acquired sovereignty to better protect their economic interests was persistently negated by Western jurists. These battles were pursued in the shadow of undecidability. Although there might be multiple reasons to opt for the language of international law, Third World states in the post-colonial period must have believed that it was possible to change the meaning of ‘sovereignty,’ ‘self-determination,’ and other principles. The undecidability of the struggles for law and institutions in the field of international investment law discussed in Chapter 4 has been reaffirmed, as the debates about the reform of investment treaties and investor-state dispute settlement have recently been revived. Notwithstanding the unsuccessful episodes in the 1960s-1970s discussed in this Chapter, many Third World jurists continue to offer ‘alternative visions’ of international investment law. Anghie, too, published a critical comment on an arbitral award in the ICSID-Review and additionally called for a reform of the foreign investment protection system (which he insightfully sees as part of the more complex ‘system of Western reparations’). Such sustained endeavours imply that, despite the failed attempts of the previous generation, the outcome of the battles for law and institutions in this field is still regarded as far from settled. It further implies that, as Arnulf Becker Lorca aptly puts it, imperialist discursive dichotomies ‘are not constitutive elements of a deep structure’ that defines international legal language: rather, they are ‘but elements used in legal argumentation’ (p 785). As such, they can be challenged and changed through legal arguments expressed in the language of international law.
In this light, it is worth clarifying that the reason for Anghie’s tragic hope is not merely pragmatic. It is not simply that we are compelled to hopefully engage with international law because international legal language has now become too omnipresent to ignore. To argue, like Anghie does, that we should continue to debate what the law is and what it should be even in bleak circumstances is to assume that the battle for legal signifiers has not been lost. It is reasonable to retain hope for a more egalitarian international law.
3. Sources of Hope and Sources of International Law
If Anghie’s hope and the mode of hoping in the wake of successive failures are based on reason, then they can be, to borrow Eagleton’s words, ‘groomed and nourished’ (p 60). For those jurists who seek to re-ignite hope for anti-imperial international law in the contemporary world, I suggest that this can be achieved by further investigating the many attempts to reconstruct international law and institutions in the service of the Third World and its peoples, as done by Anghie himself. The chief objective of this investigation is not so much to find evidence of progress as to excavate the unwavering demand for global justice and an egalitarian global order supported by anti-imperial law. The investigation may also help to reaffirm the undecidability of struggles for law if the temporal scope of analysis is extended to include contemporary debates. To my mind, one field that deserves more scholarly attention in this regard is the Third World’s collective endeavour to reconstruct the sources of law doctrine. For newly decolonised states and sympathetic jurists, contesting the doctrine of sources was of crucial significance for at least two reasons. Historically, participation in international lawmaking processes as sovereign states on an equal footing with Western states was politically and symbolically important for the national pride and prestige of the victims of colonisation. Furthermore, the sources of law doctrine governs how legal rules and principles are made and remade: it functions as the condition of possibility of acceptable legal arguments about what the law is and what it should be. This two-fold significance is discernible in the Third World’s attempts to reconstruct virtually all sources of international law in the second half of the 20th century. But it is perhaps the history of the Vienna Convention on the Law of Treaties (VCLT) that most vividly exhibits many Third World jurists’ ardent hope for anti-imperial international law and strong demand for global justice and an egalitarian world order.
The making of the VCLT is often narrated as a direct move from the draft articles prepared by the International Law Commission (ILC) to the Vienna Conference in 1968-69. What is often bypassed in this version of the story is the meetings at the Asian-African Legal Consultative Committee (which later became the Asian African Legal Consultative Organisation (AALCO)). There, jurists and diplomats from the Asian and African states followed the ILC’s work and prepared for their potentially collective positions at the Vienna Conference. A close reading of the arguments and choice of words from these meetings shows that Third World jurists strategically adopted the grammar of the traditional international legal language and hopefully strived to reconstruct a law of treaties that they deemed more just and egalitarian, capable of protecting their recently acquired independence as sovereign states and enhancing interdependence.
To illustrate, in 1966, the Asian-African Legal Consultative Committee requested the Thai diplomat Sompong Sucharitkul to produce a report on the ILC draft articles, later published as part of the 1969 Yearbook of the Committee, and his hopeful words there resonated with many participants in the meetings. With the draft articles, Sucharitkul remarked, ‘we have come very close to meeting the minimum requirement … for the protection of the interests of smaller and weaker nations’ (pp 184-185). An unequal treaty ‘which is unjust, or which subjects men to alien domination or imposes on a nation a status of subservience to another’ might now be seriously questioned: ‘We should,’ he argued, ‘guard against such paternalistic attitude of the big Powers’ (p 186). The rebus sic stantibus doctrine (which permits a party to exceptionally terminate or withdraw from a treaty in case of a fundamental change of circumstances) ‘has been appropriately added for the protection of Asian and African countries’ (p 188). As regards peremptory norms, in light of his critique of unequal treaties, ‘it would not be necessary to give further enumeration of illustrations of jus cogens’ (p 189); and more specifically, ‘a treaty purporting to establish a colonial regime would be considered as null and void’ (pp 189-190). Finally, coercion as a ground for invalidity ‘is necessary for further protection of the weak and undefended’ (p 190). The introductory note in the 1969 AALCC Yearbook, published after the adoption of the VCLT, reiterates the historical significance of the Vienna Conference, highlighting the participation of victims of colonialism and unequal treaties. This evaluation resonates with the words of the Iraqi Ambassador Mustafa Kamil Yasseen who participated in the 1966 session in his capacity as Chair of the ILC. His speech, inviting Asian and African states to actively join the Vienna Conference, vividly represents the hopeful engagement with the reform of the law of treaties at that time:
‘The effort to codify and progressively develop the Law of Treaties presents an important challenge and opportunity to Governments, particularly to those of newly independent States which are numerous in Asia and Africa … If this efforts succeeds, international treaty law will be placed upon a new and firmer footing’ (p 173).
While it remains an open question whether the VCLT has served to protect the weaker states in the way the jurists at the Asian-African Legal Consultative Committee expected, the hope for anti-imperial international law and global justice in the context of the law of treaties has survived. In the Chagos advisory proceedings before the International Court of Justice (ICJ), for example, Thailand elaborated on the problem of unequal treaties and, citing Judge Yusuf’s declaration in Somalia v Kenya, argued that when the ICJ approaches and interprets international agreements, ambiguity should be resolved in favour of the weaker party, especially former colonies. The undecidability of the struggles for a more egalitarian law of treaties remains alive.
4. By way of Conclusion
Building on a similar conception discussed so far, the philosopher Mara van der Lugt argues that the hope that endures after successive failures is a virtue in our time. Commenting on Greta Thunberg’s climate activism, she notes:
‘If there is hope, it’s a dark, bleak hope, full of rage and grief and pain for what is being lost – but infused also with insistence, perdurance, determination. It is clear that this activist, at least, will continue to strive even if her efforts are doomed to fail. This is not optimism: if anything, it is a hopeful pessimism, and I believe it has every right to be called a virtue in our age.’
For Eagleton, it is possible to practice a virtue of such hope. To do so, ‘the hopeful must be able to peer into the abyss of potential disaster … [and] to give reasons for their hopefulness’ (p 58). Anghie’s reason for hope is grounded in the undecidability of the battles for international law and institutions. His tragic hope can be nourished by further investigating into these battles. It might help steer us away from passivity and inaction while remaining alert to the recurring imperialist discourses in international law. Anghie’s hope can inspire contemporary jurists in our time of multiple crises.