Law, Concepts of International
Law, Concepts of International
Colonialism has been a central preoccupation of international law since the very beginnings of the discipline. One of the first texts of modern international law, Francisco de Vitoria's work, On the Indians Lately Discovered (1532), addresses the complex legal problems that arose from Spanish claims to sovereignty over the Americas following Christopher Columbus's voyage. Drawing upon the naturalist and theological jurisprudence of the period, Vitoria argued that all peoples, including the Indians, were governed by a basic "natural law." The Indians, Vitoria argued, violated this law by, for instance, interfering with the Spanish right to trade in those areas, as a consequence of which it was legal to wage war against the Indians and dispossess them of their lands. This text establishes a clear pattern, for the conquest of non-European peoples and the exploitation of their resources were invariably justified by legal doctrines.
Contact between European and non-European peoples had taken place for thousands of years. As European presence into non-European areas intensified, beginning in the fifteenth and sixteenth centuries, legal doctrines were developed to manage more complex forms of interaction between European and non-European states, and these extended, finally, to doctrines that could account for the acquisition of sovereignty over the non-European peoples. These doctrines, invariably, were created by Europeans, or adapted by Europeans, for their own purposes, although scholarship has shown that many principles relating to the law of treaties and the law of war, for example, were also developed and practiced by non-European states.
Imperial expansion intensified during the nineteenth century, and it was also during this period that positivism became established as the major jurisprudence of international law. Unlike naturalism, which argues that all states are subject to a higher universal law, positivism, in basic terms, asserts that the state is the creator of law, and cannot be bound by any law unless it has consented to it. There is no higher authority than sovereignty according to this system of jurisprudence.
Nominally, at least, under the system of naturalism, both European and non-European societies were bound by the universal natural law, which was the foundation of international law. Although non-European peoples had never been completely equal in this system of international law, positivist nineteenth-century jurists devised a series of formal doctrines that distinguished between "civilized states" that were full, sovereign members of international society, and "uncivilized states" that were not properly sovereign and were therefore deprived of international rights. In this way, racial and cultural criteria were used to exclude non-European societies from the realm of international law. Once non-European societies were so deprived of legal status, they lacked the personality to advance any legally cognizable objection to their conquest or dispossession, and were thus reduced to objects for conquest and exploitation.
During the latter part of the nineteenth century, when imperialism was at its height as European powers sought to expand and consolidate their empires, Western jurists developed and refined a variety of doctrines to justify imperialism. Under the doctrine of terra nullius, for instance, imperial powers claimed title to unoccupied lands by discovering them; often these lands were occupied by natives, but these peoples were deemed to be so inferior that they were considered less than human. As such, the lands could be simply possessed as belonging to nobody. War was a legitimate instrument of statehood during this period; as a consequence, Western states could acquire sovereignty over non-European peoples by military conquest. In other cases, imperial powers claimed that native chiefs had entered into treaties that gave those powers sovereignty over non-European territories and peoples. European states also used their superior military power to compel non-European states to provide them with extensive trading and other rights through unequal treaties. This practice was a source of enduring humiliation to the non-European states that were compelled to accept them.
Many of the legal doctrines used at this time dealt not so much with relations between European and non-European states (for the latter were regarded as simply lacking legal personality) but between European states who were intent on acquiring title over the non-European territories. These doctrines were developed in order to prevent conflict between European states over which states had proper title to a non-European state. Thus, at the Berlin Conference of 1884–85 the great European powers of the period met in Berlin to decide on the modalities by which Africa was to be occupied by European states. Within this scheme, certain non-European societies, such as China, were deemed to be "civilized" and yet possessing a sort of civilization of an entirely different character from that of the West. As a consequence, these societies too were excluded from the realm of international law, but deemed to possess certain rights under international law; they were quasi-sovereign.
Under the international law of the nineteenth century, non-European states could become incorporated into European international law only by being subjected to European sovereignty—by becoming colonies—or else, by changing their social, political, economic, and legal systems in such a manner as to ensure that they complied with European standards. This was the arduous task successfully undertaken by Japan, which was accepted into the "family of nations."
States such as Siam, which were never formally colonized, were nevertheless compelled to enter into unequal treaties, and to a system of capitulations, according to which foreigners were governed by their own law, rather than being subjected to the laws of the local sovereigns. By the end of the nineteenth century, European expansion had ensured that European international law had been established globally as the one system that applied to all societies.
The trauma of World War I (1914–1918) brought about many changes in international law and relations. The imperial character of the discipline was recognized and criticized by scholars and political leaders of the interwar period who denounced the international law of the nineteenth century that had legitimized colonial exploitation. The League of Nations attempted to formulate a new approach toward colonies that were now termed "backward territories." As a consequence, the territories of the defeated powers of the Ottoman Empire and Germany, rather than being acquired as colonies by the victorious powers, were placed under the authority of the Mandate System of the League of Nations. The purpose of this system was, through international supervision, to ensure "well-being and development" of the mandate territories; and it was even contemplated that some of these territories, such as Iraq, would become sovereign states.
Nationalist struggles in the third world had been profoundly affecting the international system, and by the time the United Nations had emerged, decolonization had become a central preoccupation of the international system. The United Nations responded by creating a number of institutional mechanisms for the furtherance of decolonization. The acquisition of independence by colonized states significantly changed the composition of the international community, as they became a majority in the United Nations system. These new states attempted to use their numbers in the General Assembly to establish a set of principles that would outlaw colonialism, and reverse its economic effects. The emerging law of international human rights provided one vehicle in which anticolonial initiatives could be furthered. Thus the right to self-determination was one of the principal human rights that the new states asserted and developed.
Further, the General Assembly passed a number of resolutions dealing with issues ranging from the outlawing of intervention, to the creation of a New International Economic Order.
The latter initiative was especially important, as the new states realized that political independence would be meaningless without corresponding economic independence. Thus the new states attempted to articulate a series of doctrines designed to enable them to regain control over their natural resources. Consequently, issues such as the terms on which a state could nationalize a foreign entity became particularly controversial. The arena of international economic law now became a central arena of struggle between the West and the new states, as the new states argued that this body of law had been created by the West to further its own interests. On the whole, the new states were unable to realize their ambitions to change international economic law, as General Assembly resolutions are not in themselves binding on states.
By the end of the 1980s, virtually all colonies had achieved independence. The end of formal colonialism, while extremely significant, did not, however, result in the end of colonial relations. Rather, in the view of third world leaders, colonialism was replaced by neocolonialism; third world states continued to play a subordinate role in the international system because they were economically dependent on the West and the rules of international economic law continued to ensure that this would be the case. U.S. and Soviet involvement in the affairs of third world states because of the ongoing cold war raised important issues as to the legal principles prohibiting intervention and the use of force.
The collapse of the Soviet Union and the intensification of globalization, together with civil wars in third world states—including the genocide in Rwanda—were prominent features of the 1990s, as was the view that democratic governance had become the international norm. The ascendancy of neoliberal economic policy and the creation of the World Trade Organization presented new challenges to third world states. International financial institutions such as the International Monetary Fund and the World Bank played an increasingly intrusive role in the economies of third world states, and indeed, attempted to use their considerable powers to reform the political and social structures of these states, this in the name of promoting good governance. In this way, these institutions attempted to use human rights law to further their particular policies. The demand made by the international financial institutions that these states reform their internal arrangements was compared by some scholars with the system of capitulations that had previously been used by European states to demand the reform of non-European states.
The twenty-first century war on terrorism suggests a new phase in the relations between the West (and the United States in particular) and the third world. Recourse by the Bush administration to the unilateral use of force, coupled with the intention to transform Middle Eastern states into democracies, raise new challenges to the law relating to the use of force, international humanitarian law, and human rights law, and it remains to be seen what impact the war on terrorism will have on international law.
The conventional history of international law is based on the view that all the major doctrines and principles of international law originated in Europe, and were then gradually transferred to the non-European world as a consequence of European imperialism. Sovereignty is the foundation of international law, and the treaty of Westphalia of 1648 is traditionally viewed as articulating a version of sovereignty that has prevailed since then. The Westphalian model holds that all sovereigns are equal and, further, that intervention in the affairs of a sovereign state, most particularly in the exercise of its powers over its own territory, is prohibited. Colonization and decolonization, then, can be viewed as the processes by which Westphalian sovereignty was transferred to non-European states, which, upon acquiring independence, were viewed as formally equal with Western states.
More recent scholarship, however, has questioned some of these basic assumptions. Rather than viewing colonialism as peripheral to the discipline, this scholarship has argued that colonialism is central to the formation of international law. European international law could not have become universally applicable if not for colonialism. Colonialism justified itself as a civilizing mission. This project, then, was furthered through a structure of ideas by which European practices were asserted to be civilized and universal, and non-European societies were barbaric and particular.
International law participated in this mission by developing a set of doctrines by which distinctions could be made between the civilized and the uncivilized. This essential distinction having been made, the project then remained of civilizing the barbaric—and international law devised a set of doctrines, such as conquest or the protectorate regime—for the purposes of doing so. Further, scholars have argued that the very foundational doctrines, for example of sovereignty, were formulated in such a manner as to exclude the non-European world. This is most evident in the international law of the nineteenth century, when the question of who was sovereign was decided by using racial criteria. Sovereignty, then, might be viewed as containing within itself a series of mechanisms by which exclusion and discrimination can be effected; and these mechanisms were developed for and animated by the purpose of disempowering the non-European world. Thus, while it is possible to view certain doctrines, such as conquest and the validity of unequal treaties, as being colonial because they were used for explicitly colonial purposes, this newer scholarship suggests that colonialism has shaped the very basic concepts of international law including those that appear to be neutral.
It is arguable that the standard of civilization that was such an important aspect of nineteenth-century law continues to shape international relations. Some scholars have called for the explicit reinstatement of the standard of civilization, civilization in this context being assessed by the extent to which a state complies with international human rights law. Others have argued that the civilizing mission continues today: the nineteenth-century division between the so-called civilized and uncivilized, excised from the vocabulary of international law on account of its racism, has now been reformulated in more acceptable ways in distinctions that play a profound role in contemporary international relations, between states that are developed and developing, liberal and nonliberal, postmodern and premodern.
Each of these distinctions refers to a particular set of concerns and areas of inquiry, and is supported by different doctrinal structures. In this way, even ostensibly neutral doctrines such as human rights, for instance, may be used for these purposes, to bring about transformations in the internal polities of a state. The ramifications of this scholarship are still being developed. Recent scholarship thus focused on questions of how colonial relations and structures of thought continue to operate in an ostensibly neutral setting. Further, jurists, principally from the non-European world, have continued their efforts to incorporate legal principles from very rich traditions of jurisprudence into the system of international law.
The war against terrorism launched by the United States, with its avowed attempt to transform the Middle East and its willingness to use preemptive force for the purposes of doing so, resemble in many ways a much earlier version of the civilizing mission. The question arises: How can international law respond to these challenges? The major issue remains whether international law has ever successfully rid itself of its imperial dimensions and whether or not it is possible to create a nonimperial international law.
see also Law, Colonial Systems of.
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