Antony Anghie’s “Imperialism, Sovereignty, and the Making of International Law” is a seminal work that delves into the colonial origins of international law. His research uncovers the historical evolution of international law and illuminates its present-day implications, particularly its role in perpetuating colonial and neo-colonial relations with the Third World. Anghie’s analysis, tracing back to the 16th century, reveals how international law, despite evolving jurisprudence and terminology, remains deeply intertwined with racial discrimination, cultural subordination, and economic exploitation.
Anghie begins the book by analyzing Francisco de Vitoria’s famous lectures De Indis Recenter Inventis (1538) and De Indis sive de Iure Belli Hispanorum in Barbaros (1539). In these lectures, Vitoria rejected the conventional basis for the Spanish title in favour of a new international law system displacing divine law and its administrator, the Pope, with natural law administered by a secular sovereign. More specifically, Vitoria rejected the argument that because the Indigenous peoples were unbelievers, this automatically deprived them of rights: “Unbelief does not destroy either natural or human law; but ownership and dominion are based on either natural or human law; therefore they are not destroyed by want of faith.” (p. 18). Secondly, Vitoria rejected the universal jurisdiction of the Emperor or Pope over the Indigenous peoples. According to Vitoria, “The Pope is not civil or temporal lord of the whole world in the proper sense of the words ‘lordship’ and ‘civil power’”; papal authority is partial and limited to the spiritual dimension of the Christian world (p. 19). This creates a novel problem in relations between the Indigenous peoples and the Spaniards since a universal, overarching system does not bind them. Vitoria interprets this issue in terms of the juridical problem of jurisdiction. He resolves the issue of jurisdiction using two techniques: the “Indian personality” and the elaboration of a new system of universal natural law. Firstly, Vitoria rejects the description of the Indigenous peoples as sinners, slaves, heathens, animals, etc. Instead, Vitoria acknowledges that, despite cultural differences, the Indigenous peoples are human and, as humans, are endowed with reason. Secondly, since the Indigenous peoples are possessed of reason and so are the Spaniards, both the Indigenous peoples and the Spaniards are bound by a universal natural law based on reason, or jus gentium.
Analyzing Vitoria’s universal natural law of jus gentium, Anghie finds endless parallels in modern international law. Although Vitoria humanizes Indigenous peoples in a manner that has earned him praise, he does so essentially only to construct a jurisprudence that effectively denies Indigenous peoples any sovereignty. According to Vitoria, jus gentium includes the rights of the Spaniards to free and unhindered trade and commerce in the Americas. Indeed, jus gentium universalizes an idealized version of Spanish cultural practices. Suppose Indigenous peoples resist the Spanish, which they invariably do. In that case, the Indigenous peoples are now in violation of jus gentium and no longer offered any legal protection against war or exploitation:
“If, after the Spaniards have used all diligence, both in deed and in word, to show that nothing will come from them to interfere with the peace and well-being of the aborigines, the latter nevertheless persist in their hostility and do their best to destroy the Spaniards, then they can make war on the Indians, no longer as on innocent folk, but as against forsworn enemies, and may enforce against them all the rights of war, despoiling them of their goods, reducing them to captivity, deposing their former lords and setting up new ones, yet withal with observance of proportion as regards the nature of the circumstances and of the wrongs done to them. (p. 24).”
The result of Vitoria’s new natural law is to justify endless war and exploitation of the Indigenous peoples he so humanized. Indigenous peoples are granted a degree of sovereignty only so that they can then lose or alienate themselves from it. This granting of sovereignty only for Indigenous peoples or the Third World to lose or alienate themselves from it permeates all international law.
In the 19th century, “scientific” positivist law gradually replaced natural law. Positivists argued that the secular sovereign not only administered the law but that law was the creation of sovereign will. According to the English positivist jurist John Austin, “Laws properly so called are a species of commands. But, being a command, every law properly so called flows from a determinate source” (p. 44). Since all authority is derived from a determinate source and in the absence of an overarching international sovereign, Austin argued that “the law obtaining between nations is not positive law: for every positive law is set by a given sovereign to a person or person in a state of subjection to its author” (p. 44). Positivists such as Lawrence, Westlake, Oppenheim, and Walker took up the challenge of Austin’s criticism. Many of these jurists argued that law could be said to exist as long as states observe a set of norms, i.e., customary law. Although not originating from a sovereign or any determinate source, municipal courts administered customary laws as a form of law. Of course, Austin was prepared for such criticism and offered a solid rebuttal; however, Anghie focuses on the development of positive international law, not on the debates within positivism, which remain unresolved. More importantly, if customary law is to be a valid source of international law, this raises questions such as in what circumstances and among which actors can custom be said to arise in the diverse context of international relations? To positivist international jurists, custom presupposed the existence of “society,” or more accurately, “civilization,” thus “society” or “civilization” became the central concept used to construct the system of international law. What are the criteria of a civilized society? Like Vitoria before them, a “civilized” society bound by international law was European. As Westlake wrote: “When people of European race come into contact with American or African tribes, the prime necessity is a government under the protection of which the former may carry on the complex life to which they have been accustomed in their homes” (p. 85). For a non-European state to have sovereignty and be accepted into the family of nations, it must meet a standard of civilization that amounted to an idealized version of European standards in its external and internal relations. Like Vitoria’s jus gentium, these standards, which corresponded to the demise of trading companies and more direct colonial rule by the metropolitan state, legitimized further colonial intrusion into non-European territories.
After WWI, international law radically shifted from excluding non-European societies from the “family of nations” to transforming colonial territories into sovereign states through the League of Nations Mandate System, and later, after WWII, the United Nations and the Bretton Woods institutions (World Bank and IMF). Indeed, the claim that international law is truly universal, creating a system in which all states can participate, is based on how colonial territories were transformed into sovereign states and accepted into the “family of nations,” enabling all peoples to participate as equals. However, as Anghie argues, although the terminology and methods changed, the colonial essence of international law and the structure of the international state system did not. The “dynamic of difference” between the “civilized” and the “uncivilized” was replaced with the terms “developed” and “undeveloped” with similar consequences for the colonial peoples. “Development” meant the transformation of a colonial territory into a source of raw materials for the international market on terms disadvantageous to the colonial people and establishing “modern” political institutions that undermined native institutions in favour of those which facilitated capitalist development. Instead of colonial peoples being conquered, massacred, or enslaved, the Mandate System forced colonial peoples to pay for their exploitation to the benefit of the Mandate power through taxes or forced labour for enumeration. Thus, although officially proclaiming “self-government” as the goal for colonial peoples, the acquisition of sovereignty upon independence was accompanied by the simultaneous withdrawal and transference of economic power to external forces, otherwise known as neo-colonialism. “The characterization of non-Europeans as inferior is based on racial categories is regarded as unacceptable and unscientific,” Anghie writes, so racial categories are replaced with “neutral” economic ones, distancing race “from international law in this way, even as an alternative vocabulary with which to characterize and reform the uncivilized as ‘developing’ emerges” (p. 193).
Perhaps nowhere is this alternative vocabulary more prominent than in the promotion of “good governance” and the emergence of international human rights law. The regulation of a sovereign’s behaviour within its territory was a revolutionary development in international law. Despite being ostensibly neutral and universal, “good governance” and international human rights law represent a continuation of the “civilizing” mission described above since these are principally directed at the Third World. Whatever the political crises, corruption, election irregularities, or human rights abuses in the advanced industrial states, these are rarely, if ever, described in terms of international human rights law or the lack of “good governance.” Even if they were, no advanced industrial state would ever accept international law’s right to dictate domestic policies. Moreover, the emergence of “good governance” and international human rights law was simultaneous with the achievement of independence by numerous colonial territories, which served further to transfer political and economic power back to the former colonial powers, ensuring that the Third World would never achieve the kind of sovereignty that the advanced industrial countries of Europe and North America possess.
Angie’s analysis of international law is one of the most brilliant books I have ever read. Due to its wealth of analysis and information, it isn’t easy to write a proper review, and I cannot claim that this review does justice for this book. This book has inspired me to read more about this subject and write a new book which might expand on some of Anghie’s ideas.
T. J. Petrowski 