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Imperialism, Sovereignty and the Making of International Law. By Antony Anghie.

Cambridge, U.K.: Cambridge University Press, 2005. Pp. xviii, 356. $100.

Reviewed by Mark Kleyna, IILJ Scholar, NYU School of Law.

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To the great trading nation, to the great manufacturing nation, no progress which any
portion of the human race can make in knowledge, in taste for the conveniences of life, or
in the wealth by which those conveniences are produced, can be matter of indifference. It
is scarcely possible to calculate the benefits which we might derive from the diffusion of
European civilisation among the vast population of the East. It would be, on the most
selfish view of the case, far better for us that the people of India were well governed and
independent of us, than ill governed and subject to us; that they were ruled by their own
kings, but wearing our broadcloth, and working with our cutlery, than that they were
performing their salams to English collectors and English magistrates, but were too
ignorant to value, or too poor to buy, English manufactures. To trade with civilised men
is infinitely more profitable than to govern savages.
– Thomas Babington Macaulay, Speech in Parliament on the Government of India
Bill (1833).

Hegel remarks somewhere that all great, world-historical facts and personages occur, as it
were, twice. He has forgotten to add: the first time as tragedy, the second as farce.
– Karl Marx, The Eighteenth Brumaire of Louis Bonaparte (1852).

I. Introduction

Antony Anghie’s recent Imperialism, Sovereignty and the Making of International Law
endeavors to approach the history of international law from an angle different than the
one from which the topic has generally been approached. Remarking on the manner in
which the history of international law has been told within the discipline, Martti
Koskenniemi has written that “one of the most remarkable feats in [international law’s]
self-construction has been its overwhelming Eurocentrism.”1 Anghie characterizes the
perspective that the majority of narratives describing the development of international
law have taken as centered upon a “Westphalian model of sovereignty.” At least since
the mid-19th century, this model focused on the role of international law in European
history, has considered the central problem of international law to be that of creating an
order among equal and autonomous sovereigns.2 To the extent that the world outside of
Europe figures in such a Eurocentric history, it is as the marginal recipient of a
sovereignty created in and disseminated from Europe.

Anghie’s work seeks to construct an alternative history of international law that tells the
story of its development from the perspective of the non-European, a “history that

1
MARTTI KOSKENNIEMI, THE GENTLE CIVILIZER OF NATIONS 9 (2004).
2
See ANTONY ANGHIE, IMPERIALISM, SOVEREIGNTY AND THE MAKING OF INTERNATIONAL LAW
310 (2005).

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focuses not on events in Europe but on the colonial confrontation between non-European
and European societies.”3 It is, in this sense, an example of what might be called ‘history
written from the margins,’ taking as its object the development of a seemingly European
edifice of international law.4 Anghie is interested in describing the relationship of
international law to the phenomena of imperialism, colonialism, and various forms of
neo-colonialism.

It has long been, of course, a commonplace notion that international law was at the very
least complicit in the development of colonialism. For example, Carl Schmitt had argued
that international law (at least at its height and in its ideal form) was a system designed to
govern the relationship of sovereigns within Europe, maintaining the peace there while
unleashing the forces of conquest and exploitation over the rest of the globe.5 Others
have also noted that various aspects of international law have tended to legitimize and
maintain the North-South economic inequities that characterize the world today.6 What
Anghie attempts to add to these earlier insights is a systematic evaluation of the
relationship of international law to the non-European over the long duree, critically
reading the history of international law’s treatment of non-Europeans to determine the
structures of continuity and disjuncture that mark the relationship of international law to
the colonial and neo-colonial project. Anghie concludes that rather than being peripheral
to international law, “colonialism was central to the constitution of international law and
sovereignty doctrine.”7

Anghie frames his analysis within a historical narrative, beginning with Vitoria’s natural
language jurisprudence and ending with the new justifications for foreign intervention
articulated in the course of the ‘War Against Terror.’ From a simplified perspective,
Anghie is primarily interested in two related subjects of inquiry within each historical
period, or formation, he describes. The first is how international law has been implicated
in the creation and maintenance of the structures of difference between the European and

3
Id.
4
The project of decentering, or marginalizing Europe, has been championed by numerous Third
World historians. Prominent among them is the Subaltern Studies Collective group of South
Asian historians and social theorists including, among others, Gayatri Spivak, Ranajit Guha,
Partha Chatterjee, Shahid Amin, Gyanendra Pandey, and Dipesh Chakrabarty. See, e.g., PARTHA
CHATTERJEE, The Nation and Its FRAGMENTS: COLONIAL AND POSTCOLONIAL HISTORIES
(1993); RANAJIT GUHA & GAYATRI CHAKRAVORTY SPIVAK, SELECTED SUBALTERN STUDIES
(1988); Dipesh Chakrabarty, Postcoloniality and the Artifice of History: Who speaks for 'Indian'
Pasts?, REPRESENTATIONS 37 (Winter 1992). Chakrabarty has also written a recent monograph on
the project of writing histories that would ‘provincialize Europe’ within World History. See,
DIPESH CHAKRABARTY, PROVINCIALIZING EUROPE: POSCOLONIAL THOUGHT AND HISTORICAL
DIFFERENCE (2000).
5
See CARL SCHMITT, NOMOS OF THE EARTH IN THE INTERNATIONAL LAW OF JUS PUBLICUM
EUROPAEUM (G.V. Ulman trans., 2003).
6
See, e.g., Ann Orford, Locating the International: Military and Monetary Interventions After the
Cold War, 38 HARV. INT'L L.J. 443 (1997); CARLOS M. CORREA, INTELLECTUAL PROPERTY
RIGHTS, THE WTO AND DEVELOPING COUNTRIES : THE TRIPS AGREEMENT AND POLICY
OPTIONS (2000)
7
ANGHIE, supra note 2, at 310.

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non-European that have historically justified colonialism and its offspring. Such
structures of difference, whether couched in racial or social terms, have been the subject
of considerable inquiry among scholars of colonialism and race.8 By bringing his focus
to bear on international law, Anghie tries to see how the need to postulate difference
influenced the development of international law. Whether the structure of difference
licenses gross violence or the benevolent liberal civilizing mission, difference has
justified the interference (at its most extreme colonization) of the West in the remainder
of the world.

This structure of difference also provides the exclusion of the non-European world from
the community of state subjects fully protected by international law; leading to
formulations of legal doctrines that justify this exclusion. Thus, Anghie’s second major
area of inquiry is how international law has treated the issue of non-European
sovereignty; it is his contention that the notions of difference that justified the civilizing
mission also “shaped the character of sovereignty – and, more broadly, of international
law and institutions.”9 At times international jurists have entirely excluded the non-
European world from the society of sovereigns; at times they have granted it nominal
entry. Anghie’s point is that never has the exercise of non-European sovereignty been as
uninhibited as the exercise of sovereignty within Europe. Non-European states, even
when sovereign, have always been subject to levels of interference, sanctioned by
international law, that have not been contemplated by international law applied in
Europe.

Anghie’s analysis is ultimately interesting for two reasons. First, his structure reveals
what can be construed as a remarkable degree of continuity in regimes of international
law that claim novelty with respect to what came before them. His account tends to mute
any self-congratulatory account of international law that would posit colonialism as a
problem that has been overcome with finality. He manages to question any simple
periodization of the history of international law that would draw a sharp division between
the colonial and the post-colonial era. Second, his argument strives to reconnect, albeit
with varying degrees of success, the doctrines and theories of international law with the
workings of power in the political realm.

8
See, e.g., THOMAS R. METCALF, IDEOLOGIES OF THE RAJ (1995)(describing the production of
difference under 19th century liberal ideologies of empire); Homi K. Bhabha, Of Mimicry and
Man: The Ambivalence of Colonial Discourse, in THE LOCATION OF CULTURE, 85-92
(1994)(exploring the creation of liminal colonized subjectivities by discourses of the colonizer);
CHATTERJEE, supra note 4 (describing the effects of the “rule of colonial difference” on the
development of Third World nationalism); FRANZ FANON, BLACK SKIN, WHITE MASKS (Charles
Markham trans. 1967)(discussing the effects of the imperial project of colonial difference on non-
Western subjectivities); RONALD B. INDEN, IMAGINING INDIA (1990) (charting notions of
difference and their representation in colonial/post-colonial historiography); MRINALINI SINHA,
COLONIAL MASCULINITY (1995)(exploring gender dimensions of racialized difference in colonial
India).
9
ANGHIE, supra note 2, at 311.

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In its conclusion, this essay will consider both of these aspects of Anghie’s work. In
particular it will consider how Anghie’s analysis might be framed, and the structure of his
narrative altered, within a narrative of capital and transformation. Before reflecting upon
the conclusions and questions presented by Anghie’s argument, it is worth rehearsing it in
greater detail.

II. Anghie’s Argument

1. Colonialism

Anghie’s account of international law’s complicity with the constitution of cultural

difference begins with Vitoria’s 16th century natural law jurisprudence. Vitoria’s res
gentium has been credited with departing considerably from the divine papal law that had
justified Spanish and Portuguese usurpation of native title. Instead of describing Indians
as inherently inferior and excluded from the realm of divine law, and therefore rightfully
dispossessed of their lands, Vitoria classed natives among the fully human and rational
subjects of a natural law administered by sovereigns. Vitoria incorporated non-
Europeans into the same realm of law as Europeans; under a natural law framework, the
colonial encounter was idealized as a meeting of equals under the law. Nevertheless,
Anghie argues that Vitoria’s jurisprudence ultimately excluded the Indian from a truly
equal status under this international law, and ultimately sanctioned Spanish colonial
conquest.

According to Anghie, Vitoria’s natural law jurisprudence produced forms of cultural

difference that reserve full sovereignty for European states and justify colonial violence
in a novel way. The framework of natural law abstractly placed the colonizer and the
colonized within a single universal framework of law, but within this framework Indian
practices were always deficient, because natural law reflected European norms. By
violating the Spanish right to “travel and sojourn” in colonial territories, the Indian
transgressed universal norms.10 The structure of deficiency is at the base of Vitoria’s
notions of sovereignty: the Indian was clearly not sovereign because by definition a
sovereign is bound by international law. Given this, the European sovereign was justified
in waging war against the nonsovereign Indian violator.11

Anghie claims the structure of Vitoria’s argument shows that natural law’s “[s]overeignty
doctrine acquired its character through the colonial encounter.”12 Anghie’s argument
seeks to demonstrate that this structure of sovereignty, capable of both containing and
excluding the non-European, is reproduced throughout the history of colonial and post-
colonial encounters between the West and the rest. The logic of difference gave rise to
multiple variations of the “civilizing mission” formulated to legitimate later imperial
conquests.13

10
See id. at 28-29. Note the commercial character of this ‘right.’
11
See id. at 28.
12
Id. at 29.
13
See id. at 30.

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The positivist international law of the late-nineteenth century was marked by a departure
from the theoretical underpinning’s of Vitoria’s natural law.14 The source of
international law was no longer a superior framework of the natural law binding
sovereigns; according to the positivists it emerged from the will and actions of sovereigns
themselves. Between the systems, however, there was significant continuity because the
non-European also was excluded as a sovereign subject of positivist international law.
What was different was the technique through which positivism articulated cultural
difference and the way in which it formulated sovereignty doctrine to exclude Europeans.

Vitoria’s jurisprudence excluded the non-European from sovereignty for his transgression
of a universal natural law; positivist jurisprudence excluded the non-European by
categorizing him as uncivilized. Non-Europeans could not be included because, by
definition, international law was constituted by the interactions of sovereigns within the
society of civilized European states. This distinction, the racial difference between the
civilized and uncivilized, justified the civilizing mission that animated rhetorics of late
19th century colonialism. As with Vitoria, commerce figured prominently in the
justification for colonialism; only now commerce was characterized as a humanitarian
technique of civilization, rather than an excuse for conquest.15

Positivist international law brought non-European peoples into the civilized nations’
sphere through treaties, colonization, the attainment of civilization, and protectorate
agreements.16 Each of these processes of assimilation produced specific legal forms
characteristic of positivist jurisprudence, and underlying each form was a notion of the
fundamental deficiency of non-European sovereignty. The first category, encompassing
agreements ranging from trade treaties to treaties ceding sovereignty to European powers,
was troublesome for positivist law because the non-European states were excluded from
international law. How then could they contract with the European powers? Doctrines,
such as recognition and quasi-sovereignty, were invented to justify these treaties and the
advantages they bestowed on the European states.17 Colonization was legitimated
through the doctrines of discovery, occupation, conquest and session; each relied upon a
particular degree of civilization, and perhaps limited sovereignty, postulated for the
colonized.18 To be admitted into the society of states, non-European nations had to sign
treaties of capitulation, which aligned internal legal standards with European legal
standards. These treaties effectively negated the possibility of real sovereignty by
requiring non-European states to internal self-government to attain sovereignty before
Europe.19 Similarly, the protectorate form, while in theory preserving the internal
sovereignty of the protected state, was a flexible instrument for controlling and exploiting
territories, denying sovereignty to the precise extent most useful for the protecting state.20

14
In discussing positivism, Anghie refers primarily to the works of Wheaton, Westlake,
Lawrence, and, to some extent, Oppenheim. See id. at 32-114.
15
See id. at 97.
16
See id. at 67.
17
See id. at 75.
18
See id. at 82-84.
19
See id. at 85-86
20
See id. at 89.

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According to Anghie, the colonial encounter and its role in constituting international law
have generally been effaced from a depiction of positivism as fixated on the problem of a
law that exists between equal sovereigns under no higher authority. This depiction fails
to accommodate Europe’s encounter with the rest of the world; it excludes the processes
that excluded much of the world the prerogatives of sovereignty and that legitimated
imperial subjugation and exploitation. Even when able to attain sovereignty, non-
European states were allotted deficient forms of sovereignty because the touchstone of
achieving sovereignty was Europeanization.21

Anghie thus argues that positivism developed two models of sovereignty; one was
interested in describing the interactions of equal European states, the other was concerned
with elaborating the notion of cultural difference and justifying the colonial enterprise.22
Positivism’s relationship to the non-European world is not, therefore, merely the sin of
Eurocentrism; it did not merely constitute a form of sovereignty that was then exported to
and accepted by the rest of the world, it was itself devoted to constructing theories of
sovereignty that justified colonialism.

2. Transition – the Mandate System

The fact of 19th century positivism’s relationship to colonialism has been matter of some
embarrassment within the discipline, leading later international jurists to distance
themselves from its heritage.23 Nevertheless, Anghie argues that the nineteenth century’s
predominant narrative of sovereignty and its vision of international law as concerned with
the problem of relations between equal sovereign states continue to infuse contemporary
international law, eliding the role of international law in colonial expansion. Despite the
recognition of the questionable role of international law during this period, non-European
legal traditions remain absent in contemporary international law, the material inequities
created by colonialism remain unredressed, and colonial treaties extracted through
coercion continue to bind post-colonial states.24

Thus for Anghie, 19th century positivism is just one instance in a recurring pattern of an
international law that fosters unjust relations justified through the civilizing mission.
However, it is the last such moment that did so through open racism. The next significant
moment in this pattern was the Mandate System of the League of Nations of the interwar
period, presented at the time as a benevolent elaboration of Vitoria’s notion of
wardship.25 According to Anghie, this was simply another stage in the development of an
international law allied with the project of civilizing the non-European world. This
period, marked by a shift from positivism to pragmatism, was a novel moment in
international law, characterized by the formation of an international organization directed

21
See id. at 104.
22
See id. at 107.
23
See id. at 109
24
See id. at 111.
25
See id. at 145.

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towards transforming colonial territories into sovereign states.26 Despite the pragmatists’
disavowal of the earlier writers’ complicity with colonialism, their approach had notable
continuities with the preceding eras.

Unlike the positivists, who were concerned with a closed system of sovereign
interactions, the pragmatists focused on the relationship of law to the new social sciences.
Sovereignty was not the unquestioned starting point of analysis; it was a sociological fact
associated with the exercise of power.27 Instead of describing a formalist order of legal
rules, they were interested in constructing a flexible system capable of addressing
political realities of power, and directing the system towards practical goals. The avowed
goal of the Mandate System was the eventual independence and sovereignty of the
former colonies, bringing them in as full members of the international order.

Due to their sociological inclinations, the pragmatists’ vision of the Mandate System was
not merely to integrate non-European sovereigns into the international community. Their
goal was more fundamental; they sought to create the conditions for sovereignty in the
non-European world. For Anghie, this is instructive of the structure of colonial
difference animating the Mandate System: Western states were already sovereign, the
non-Western had to be made into sovereigns.28 This project, coupled with a notion that
sovereignty was an external manifestation of social realities within states, justified the
large-scale intrusion into the interior politics of non-European states. When coupled with
the economic importance of the colonies to the metropolitan economies of the early 20th
century, the project of internal development of mandates by the mandatory was doomed
to be ambivalent at best.29

The development project of the Mandate System required the Permanent Mandate
Commission to develop standards for guiding the progress of the mandates towards self-
determination and sovereignty. The pragmatists’ sociological orientation led to the
development of an international administrative structure capable of analyzing large
amounts of empirical data collected by the mandatories and producing adaptable
standards of governance. According to Anghie, these techniques of governance added a
new, technocratic dimension to the enduring ‘dynamic of difference.’ Only now, even
cultural difference was rendered in the neutral terms of economic advancement rather
than in the vulgar language of racial difference.30

The Permanent Mandate Commission judged the progress of the mandates through an
economic metric because it assumed that economic integration of the territories into the

26
See id. at 116.
27
See id. at 130.
28
See id. at 133. According to Anghie, the division of mandates in the A, B, and C categories
was a distinction based on the perceived internal development of non-Western societies towards
the capacity to be sovereign. The distinctions justified distinct levels of intrusive governance by
the mandatory powers. See id. at 148.
29
See id. at 144. U.S. insistence upon economic access to mandate territories – the so-called
‘open-door policy – demonstrates the perceived economic importance of these territories. See id.
30
See id. at 155.

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global economy would lead to the social modernization required for eventual sovereignty.
Their policies focused on disciplining the mandates’ peoples into a population of efficient
laborers, adapting and overcoming traditional structures of authority in the process.31
Motivated by their own interests, the mandatories fostered the underdevelopment of the
mandate territories as sources of raw materials and destinations for finished products.
Ultimately, the Permanent Mandate Commission replicated the advanced colonial
economic system of forced dependency under the auspices of an international system.32

Under the Mandate System, the sovereignty transferred to non-European peoples was
distinct and inferior to that enjoyed by Western states; it was a partial sovereignty
deprived of economic power. The promise of formal political sovereignty was
“accompanied by the simultaneous withdrawal and transference of economic power to
external forces.”33 The sovereignty granted by the Mandate System, overdetermined by
an economized system of administration, was “irrelevant” in comparison to the economic
domination achieved by integrating non-Western societies into an inferior position within
the global economy.34

3. After Colonialism

Anghie claims that the model devised by the Mandate System, legitimating in the name
of social and economic development intrusive techniques of regulation of non-Western
states, is one that repeats itself in modern projects of development and U.N. trusteeship.
The tragedy is that international law cannot overcome its past, the “the mechanisms used
by decolonization were also the mechanisms that created neo-colonialism.” The Mandate
System set in place the “legal structures, ideologies and jurisprudential techniques”
denying full self determination and sovereignty to non-Western peoples; it devised
technologies to administer Third World states; and it articulated a justification for
intervention through the concept of economic under-development. These same forms
continue to perpetuate the subordinate status of non-European states within the
contemporary international system.35 The pragmatist project was not, the first step
towards creating a universal system of equal sovereigns; it was despite its highest
aspirations, primarily a refinement of the hierarchies established under colonialism.

When colonial states did attain formal sovereignty and campaigned for a more equitable
international order, the response of international jurists was largely to articulate doctrines
that undercut these efforts. Both the Third and First World accepted the notion that the
former were underdeveloped, but their understanding of this phenomenon was divergent.
The former considered underdevelopment a legacy of the colonial era; the latter
considered the problems of the Third World to stem from the deficient indigenous social
structures.

31
See id. at 162-68, 173.
32
See id. at 174-75.
33
Id. at 180.
34
See id. at 190.
35
See id. at 192-93.

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This difference in view came to a head on the issue of state responsibility with respect to
foreign investment. First World jurists argued that by participating in the international
order Third World states acquiesced to rules of state responsibility that helped maintain
unfavorable colonial-era concessions. In contrast, Third World jurists sought to revise
the entire system by emphasizing the real consent of the newly sovereign states to such
rules.36

The new states championed ideas such as the doctrine of Permanent Sovereignty over
Natural Resources, which would allow these states to escape agreements that had coerced
colonies to part with valuable resource concessions as a condition of independence. The
passage of General Assembly resolutions articulating the stronger notions of national
sovereignty over Third World resources met the deaf ears of international decisors. Such
jurists determined, for example in the 1975 Texaco arbitration decision (dealing with the
issue of compensation for nationalization of foreign investors’ oil concessions in Libya),
that such resolutions could not establish norms of international law binding powerful
investor states. By protecting the status quo of international law, they perpetuated a legal
system that denied new states any effective power to change unfair norms of international
law.37

Another response of international law to the challenges made by the Third World states
was the development of the notion of transnational law as a component of international
law. Transnational law was a novel category devised by jurists such as Philip Jessup to
deal with the problem of arbitrating international contracts, including those connected to
development investments.38 Early arbitral decisions had to confront the problem that,
under traditional private international law, these contracts would be governed by the laws
of Third World states intent on asserting their control over their natural resources.39
Anghie asserts that transnational law was created to govern such contracts because such
agreements were argued to be unique and thus had to be governed by a special form of
non-municipal law – an international law of contracts based upon “general principles of
law.”40 These contracts were special because they were either characterized as “quasi-
treaties,” elevating corporations to a “quasi-sovereign status,” or as contracts between
private entities, denying the Third World state the accepted residual prerogatives of
sovereigns with respect to contracts.41 These innovative characterizations removed these
contracts from the realm of municipal law, and limited the scope of the new states’
sovereignty over contracts in comparison to the unlimited sovereignty enjoyed by
European states.

Anghie points out that certain contemporary international legal trends associated with
economic globalization, particularly in the form of governance initiatives directed

36
See id. at 210.
37
See id. at 220-22.
38
See id. at 223.
39
See id. at 224. The issue was later rendered largely irrelevant by the inclusion of choice of law
clauses, some selecting ‘general principles of law,’ in such contracts. See id at 230-31.
40
See id. at 229-31.
41
See id. at 232-34.

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towards Third World development, likewise perpetuate the inferior status of non-Western
states in the global system. According to Anghie, the term governance, though avowedly
neutral and universal, denotes an “initiative” aimed exclusively at developing states that
“merely replicates the ‘civilizing mission’ that has been such a prominent feature of the
international relations system at least since the time of Vitoria.”42 In the contemporary
era, one of the major legal supports for governance initiatives is the deployment of
human rights law to justify institutions and standards that integrate Third World states
into the global economic community. For Anghie, the problem with human rights law is
that, through the triumph of a Western liberal human rights model over Third World
alternatives such as the Right to Development and the Asian Values critique of liberal
rights, it has developed into a system that developed countries can use to reform Third
World states for their own economic advantage.43

Thus, human rights join the arsenal of tools that First World-dominated International
Financial Institutions (“IFIs”), such as the World Bank and the International Monetary
Fund, can use to justify intrusions into the supposedly sovereign domain of Third World
states. Such now-notorious initiatives such as the Structural Adjustment Programs
(“SAPs”), which have arguably had detrimental effects on the status of Third World
populations, can be implemented through governance initiatives using the language of
human rights. IFIs can cite the notion of governance to explain past failures – SAPs
failed because of governance deficiencies in developing states – and to justify ever
deeper intrusion into Third World states’ internal political structures in the name of
reform.

The IFIs are, according to Anghie, nothing more than the universalization of “the
Mandate System to virtually all developing states”44 – sacrificing the sovereignty and
self-determination of Third World peoples in the name of a global economic integration
that favors Western states. The binary civilized/uncivilized has refigured itself as the
binary developed/underdeveloped. The former are favored by an international legal and
economic system that reserves for the West the advantages of an idealized national
sovereignty and spares it the intrusive technologies of international institutions deployed
in the name of development.45 As Anghie puts it, “Third World sovereignty is
distinctive: Western sovereignty was protected against the intrusion of international law,
whereas non-European societies have invariably been subject to international law.”46

Anghie ends his analysis by turning his sights on the recent developments connected to
America’s ‘War Against Terror.’ Anghie describes the War Against Terror as involving
several primary concepts: pre-emptive self-defense, the rogue state, humanitarian
intervention, and the global promotion of democracy. All of these are dependent upon a

42
Id. at 250.
43
As Anghie noted, the most egregious such deployment of rights discourse is exemplified by the
recent U.S. articulation of the “fundamental right” to “transfer capital ‘freely into and out of a
country without delay and at a market rate of exchange.’” Id. at 270.
44
Id. at 263.
45
See id. at 266-67.
46
Id. at 269.

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refinement of the civilized/uncivilized divide – this time in the language of threat and
self-defense.47 Under the new U.S. quasi-imperial project, states such as Iraq and
Afghanistan are being placed within treaty arrangements reminiscent of the colonial
protectorate and the Mandate System, whereby the U.S. can maintain considerable
control over ostensibly sovereign states.48

The U.S. has argued for doctrines such as humanitarian intervention and pre-emptive
self-defense, justified through expanded notions of human rights and self-defense. Such
arguments threaten to create a world legal order that is almost a return to a pre-1945
world; they imagine “a new form of imperialism, defensive imperialism.”49 Such a form
of imperialism, if it attains legitimacy under international law, threatens to undo the slow
progress of the U.N. system towards a more equitable international system. Because it
can only be implemented by states able to project their might for ‘self-defense,’ such a
legal order will only enlarge the powers of large, powerful states to intervene in the
affairs of other, ostensibly sovereign, states. These latter states, quite naturally, will
largely be the same Third World states whose sovereignty and participation in the
international domain has always been qualified, in some way or other, under the
consecutive regimes of international law.

III. Reflections

In considering Anghie’s arguments I would like to set up my analysis as two questions.

First, is the degree of implication of the colonial project in international law, at any given
time, is as great as Anghie suggests? I would characterize this issue as a horizontal
question – in the sense that the inquiry is about the relationship between the metropolitan
and colonial forms of international law. Asking this question bring up some of the
problems of talking about the colonial phenomenon in the language of international law,
and suggests that Anghie is expanding the scope of the term ‘international law’ to
encompass what might better be described as hybrid forms of municipal and international
laws and politics that arose on the colonial margins.

I would also like put forward a second question, which I envision as a vertical question of
a historiographic nature: namely, is the continuity between the institutional, doctrinal, and
material structures among the different eras Anghie discusses as significant as Anghie
would have it? Furthermore, does his focus on continuity tend to obscure certain
discontinuities that may be at least as important as the parallels he draws? I suggest that,
though Anghie’s account is successful in bringing out certain parallels between historical
periods, there also exists also an illuminating way to read a significant historical
disjuncture between the colonial and post-colonial period. This rupture does not merely
reproduce the narrative of the liberation of post-colonial sovereign states, but suggests the
possibility of something else entirely. This new thing might be termed a new world order
that, while producing a First/Third World divide that may just look like more of the same

47
See id. at 278.
48
See id at 287.
49
Id. at 294.

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old thing, actually represents the advent of a novel systemic order that calls into question
the future of an idealized First World sovereignty.

1. The Relationship of Third and First World International Law

Despite the impressive historical breadth and richness of Anghie’s account, it is not clear
that he has set down an alternative narrative of the constitution of international law. The
degree of the colonial past’s implication in the development of contemporary
international law is not immediately evident, even in light of his account of the
underlying linkages between metropole and colony. We may assume, as Anghie tells us,
that there exist two models of sovereignty within international law; full metropolitan
sovereignty and the various degrees of abridged colonial and post-colonial sovereignty.50
Nevertheless, his analysis does not show that the constitution of full metropolitan forms
of sovereignty has depended upon the positing subordinate forms of sovereignty in the
peripheries.

Certainly, in economic terms, metropolitan control of the colonies and, to a certain

degree, of the mandate territories, was perceived to be an economic imperative – and thus
dictated the practices of external control over these regions, justified by certain relatively
thin international legal doctrines. But this does not tell us, whether in, a more
constitutional sense, metropolitan sovereignty could have been independently constituted;
if it was not, then in some sort of fundamental or ontological sense, European sovereignty
depended upon the articulation of more marginal forms of sovereignty.

Admittedly, by its logic, this type of inquiry threatens to diminish one of Anghie’s
argument’s more compelling aspects – his refusal to allow a nice division between
international law and economic and political power. To ask the question whether, in
terms of its idealized doctrinal constitution, European sovereignty really was or was not
isolable from the doctrines of sovereignty (or the lack thereof) conceived for the margins,
presupposed some sort of independence of legal doctrine from the economic and political
structures characteristic of the colonial relationship.

But this inquiry also brings out what is likely a very significant implication of Anghie’s
argument – that international law tends to conflate with domestic law at the peripheries.
After all, for the imperial powers, the distinction between international and domestic law
was irrelevant precisely because the colonies were considered the proper domain of
international law. By definition, international law as a discreet body of law separate from
municipal law, in this interpretation of Anghie’s argument, could not exist in these
colonies. Nor, seemingly, does it exist as a clean form in the post-colonial Third World,
where domestic legal schemes cannot disentangle themselves from internationally
directed policies. International law outside of Europe may well be understood to be some
sort of hybridized form of international law, which combines with municipal law in ways
that challenge the very category of international law in the modern era.

50
Id. at 107.

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Thus, to insist upon too rigorous a doctrinal linkage between metropolitan and colonial
international law, or to insist that the latter look more convincingly like international law
proper, may well miss important implications of Anghie’s analysis. Nevertheless, asking
how colonialism is constitutive of the idealized forms of First World international law,
could also lead us to another conclusion that may be just as interesting. Perhaps, rather
than thinking about First World international law as the norm, and Third World
international law as the exception, we should ask whether First World international law is
the exceptional state. In this view the plausibility of First World sovereignty, and its
notions absolute territorial self-determination, were only enabled by the benefits and
leeway created by coercion and exploitation on the margins. In such a view, the moment
that the imperialist system founders is the moment that First World international law
proper can no longer exist. This potential moment of historical disjuncture is what I
would like to explore in the next section, which takes as its subject what I above
characterized as the vertical, historiographical aspect of Anghie’s argument.

2. The Colonial – Post-Colonial Divide

To be sure, Anghie’s analysis brings out that certain patterns of the colonial era tend to
recur in very similar ways in the post-colonial era – notably the construction of methods
of differentiation justifying intervention in the internal affair of non-Western societies.
Some aspects of these patterns appear to be reproduced in international law doctrine and
the policies of international organizations. But are these doctrines and policies properly
considered the international law components of a narrative of colonialism, or are they the
international law components of another narrative, as it exists in the colonial context?

Perhaps the more appropriate frame for discussing the relationship of colonialism and
international law is a narrative of the workings of power and capital; colonialism is but
one, albeit uniquely developed and important, chapter of this narrative. Law, both
municipal and domestic, is a significant strand, both constituted by and supportive of, this
underlying narrative. Taking the view that the forces underlying the phenomena Anghie
describes are not simply reducible to colonialism, or to the differentiation between the
First and Third World, leads one to rethink Anghie’s insight as to the continuity of the
treatment of the non-West under international law from imperialism to the present era. I
would like to suggest that there exist certain disjunctures in the underlying causes for the
non-West/West distinction, and that these disjunctures may have implications for how we
ought to think about the doctrinal content of international law in different eras.

A significant contextual lacuna in Anghie’s discussion of governmental technologies in

the periods of the Mandate System and the IFIs supports this interpretation. Due to his
focus, Anghie depicts these technologies primarily as a post-imperial phenomenon
directed at the Third World. To be sure, his work shows that governmental techniques
were deployed extensively against the subordinately sovereign mandate and post-colonial
populations in the service of colonial control and economic exploitation. These
technologies, in Anghie’s narrative, reflect a refinement of prior methods of
distinguishing between the European and non-European, the latter being the object of
these technologies – both as an object of knowledge as well as of discipline. Moreover,

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the application of these forms of knowledge depended upon international legal forms that
allow for interference in mandate territories. But, as Foucault and others have argued, the
primary significance of these technologies of rule was that they were characteristic of an
epistemological transformation, beginning in the early 19th century, that was constitutive
of a universalizing modernity.51

Thus, we should note that the use of such technologies outside of Europe was hardly an
innovation of the Mandate System. These technologies of administration and knowledge
were a component of late 19th century colonial rule, developed during the apogee of
traditional empires.52 Implicitly, Anghie acknowledges this by referring to colonial
administration techniques in his discussion of mandate rule. To a large extent, they were
developed in the context of controlling and administering sizeable and unfamiliar
indigenous populations in the late 19th century colonies for the project of integrating
these peoples into the colonial market economy. In this sense, they do not per se
represent any innovation of internationalized forms of governance characteristic of
international institutions in the 20th century.

The universalizing character of these innovations becomes particularly clear when one
considers that the governmental innovations at issue were part and parcel of the
transformation of rule and sovereignty within 19th century Europe as well.53 The social
sciences and their associated systems of expert administration, figuring prominently in
Anghie’s account of pragmatism, developed concurrently within Europe and the
colonies.54 These technologies were also instrumental in integrating marginal social
populations into the developing social order inside the European states.55 Given their
prominence both inside and outside of Europe, it is hardly surprising that the mandatory
powers and the Permanent Mandate Commission deployed these systems of knowledge
and control in non-Western societies under their control. Anghie shows us how these
techniques were developed and applied outside of Europe during the early twentieth

51
See MICHEL FOUCAULT, DISCIPLINE AND PUNISH (Alan Sheridan trans., 2nd ed. 1995); Michel
Foucault, Governmentality, in THE FOUCAULT EFFECT: ESSAYS IN GOVERNMENTALITY, 78-108
(Graham Burchall, et al., eds. 1991).
52
See, e.g., BERNARD S. COHEN, COLONIALISM AND ITS FORMS OF KNOWLEDGE, 3-15 (1996)
(outlining relationship of colonial knowledge production and British rule in India); NICHOLAS B.
DIRKS, CASTES OF MIND (2002) (describing colonial construction of caste and its implication in
British rule in India); DAVID ARNOLD, COLONIZING THE BODY (1993) (tracing rise of colonial
medical discourse in India); Arjun Appadurai, Number in the Colonial Imagination, in
ORIENTALISM AND THE POSTCOLONIAL PREDICAMENT, 314-40 (Carol A. Breckenridge and Peter
van der Veer eds., 1993) (describing rise of British statistic as modality of knowledge in mid-19th
century British administration of India); David Ludden, Orientalist Empiricism: Transformations
of Colonial Knowledge, in ORIENTALISM AND THE POSTCOLONIAL PREDICAMENT, 250-78(Carol
A. Breckenridge and Peter van der Veer eds., 1993).
53
See FOUCAULT (1995), supra note 51; Foucault (1991), supra note 51; Michel Foucault, Two
Lectures, in POWER/KNOWLEDGE, 79-108 (1980).
54
See TIMOTHY MITCHELL, COLONISING EGYPT (1991) (describing European social ordering
techniques and their universalizing application in Egypt); DIRKS, supra note 52.
55
See FOUCAULT (1995), supra note 51; MICHEL FOUCAULT, MADNESS AND CIVILIZATION
(1999).

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century; but these systems of discipline were also being perfected within Europe,
arguably on an even greater scale and with greater precision as the modern welfare state
and its complex administrative apparatus developed.

That is not to say that Anghie is entirely incorrect in his observation that these systems of
knowledge and techniques of rule were applied differently in the non-European sphere
than within Europe – particularly if we look at their application through the lens of
international law premised on the notion of the sovereignty of states’ internal affairs.
After all, in Europe, these technologies of rule were deployed within the territory of the
sovereign nation-state as a component of internal rule. Outside of Europe, in territories
that were not considered sovereign, or whose sovereignty was conceived as limited, these
technologies were, and are, deployed across national boundaries – without regard for
sovereignty. But this fact is symptomatic less of the compromised notions of sovereignty
extended to the colonial and developing world, than of the universalization of these new
technologies of rule everywhere, without regard to the niceties of the external/internal
distinction driving an idealized conception of international law.

The trend towards the universalization of these forms of rule becomes more apparent
when one considers the phenomena that Anghie describes in the second half of the
twentieth century, wherein legal norms develop that allow for the compromise of Third
World sovereignty in the interests of market expansion. The colonial and, especially, the
neo-colonial political-economic system has been oriented towards the universalization of
a market economic system. Its logic, at least in the era of globalization, marginalizes
traditional notions of national sovereignty quite generally in the interests of greater
economic integration.56 There is, from this view, a notable disjuncture between the
colonial and post-colonial era; the fall of conventional empires changes the nature of the
interventions into the sovereign sphere. The source and need for intervention is no longer
voiced from any singular site localizable within a particular imperial state acting in its
economic interest; it is, rather, the imperative of our economic system as a whole that the
exercise of states’ sovereignty be limited in some significant respect.

Michael Hardt and Antonio Negri’s Empire elaborates a strong form of this sort of
argument, positing a notable shift in the way in which power, sovereignty, and capital
operate in the latter half of the twentieth century. 57 Before this era, Hardt and Negri
56
The topic of globalization’s effects on sovereignty has consumed considerable academic and
popular discussion. See, e.g., STEPHEN KRASNER, SOVEREIGNTY: ORGANIZED HYPOCRISY
(1999); Benedict Kingsbury, Sovereignty and Inequality, 9 EJIL 599 (1998); SASKIA SASSEN,
LOSING CONTROL? SOVEREIGNTY IN AN AGE OF GLOBALIZATION (1996); Christoph Schreuer,
The Waning of the Sovereign State, 4 EJIL 447 (1993); SUSAN STRANGE, THE RETREAT OF THE
STATE: THE DIFFUSION OF POWER IN THE WORLD ECONOMY (1996). How exactly concepts of
sovereignty are being refigured by globalization may well be a question that is unanswerable, but
it seems generally conceded that there is some effect of the latter on the former. In this context,
the claim I would make is that processes of globalization places considerable constraints on the
exercise of some ‘pure’ form of internal sovereignty.
57
MICHAEL HARDT & ANTONIO NEGRI, EMPIRE (2000). Anghie references Hardt and Negri’s
text without exploring many of its implications with respect to his argument. See ANGHIE, supra
note 2, at 245-46.

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paint a Foucauldian narrative of the development of Western sovereignty from a

monarchical model to one oriented around a national population formed through
disciplinary practices – the frame of their narrative is decidedly the nation state.58
Looking outside Europe, much like Anghie, they emphasize the impossibility of Western
style sovereignty in the non-European world in the confines of the colonial world order.59
However, their account of national sovereignty experiences a critical rupture at the
moment of post-colonial liberation:
The global capitalist hierarchy that subordinates the formally sovereign
nation-states within its order is fundamentally different from the
colonialist and imperialist circuits of international domination. The end of
colonialism is also the end of the modern world and modern regimes of
rule.60

Globalization, accordingly, represents a refiguration of sovereignty on an unprecedented

scale. They call this the “passage from modern sovereignty to imperial sovereignty,”61
characterizing its epochal character as follows: “From imperialism to Empire and from
the nation-state to the political regulation of the global market: what we are witnessing,
considered from the view of historical materialism, is a qualitative passage in modern
history.”62

With respect to Anghie’s argument, the most significant claim Hardt and Negri make on
the novelty of the current global and political system is that it generally diminishes the
significance of the nation-state as a form. This claim provides a different context for
reading changes in Third and First World states’ status under international law than the
relatively static relationship of inequality that Anghie’s account provides. Anghie paints
a world where powerful sovereign, developed states interfere in the territories of
developing states, though often through the mediation of international organizations.
Hardt and Negri argue that, under globalization, national sovereignty is no longer the
locus of power; power is situated in an amorphous web of economic and political
relations outside of any state – what they call ‘Empire.’63 Thus, in a perverse way, the
logic of globalization does not so much distinguish between First and Third World
sovereignty, but subsumes and debilitates both of them, though perhaps not equally, in
the service of a new world economic order.

58
HARDT & NEGRI, supra note 57, at 93-113.
59
See id. at 114-15.
60
Id. at 134.
61
Id. at 202.
62
Id. at 237. In this context, Hardt and Negri are claiming a liberatory potential for the world
economic system, where economic and political power are clearly aligned, that did not
necessarily exist where economic demands on populations were mediated through the nation
state.
63
Hardt and Negri refer to Empire as a “new global form sovereignty,” in order to emphasize the
interstitial market order as the locus of power, replacing the modern nation-state. Id. at xii. It is
unclear to me that deploying a term ‘sovereignty’ outside the space of the nation-state particularly
elucidates the matter, for what Hardt and Negri are describing is can be seen as a disaggregation
of sovereignty, and its replacement by a novel organization of power.

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They call this process marginalizing national sovereignty “the process of imperial
constitution,” occurring simultaneously in the spheres of international and domestic law:
We should emphasize from the start that its reality is demonstrated not
only by the transformations of international law it brings about, but also
by the changes it effects in the administrative law of individual societies
and nation-states, or really in the administrative law of cosmopolitan
society. Through its contemporary transformation of supranational law,
the imperial process of constitution tends either directly or indirectly to
penetrate and reconfigure the domestic law of the nation-states, and thus
supranational law powerfully overdetermines domestic law.64

The treatment of the relationship of international and municipal law in this passage brings
out a significant aspect of the order that Hardt and Negri describe: the increasing failure
of any easy distinction between regulation internal and external to modern nation states in
the increasingly interconnected spheres of regulation.65 It also points out the potential of
a decreasing significance of the distinction between international and municipal law.

The logic of Empire, the disciplinary technologies of economic globalization, is one that
tends to return the logic of imperial rule back to the First World – in the sense that
external administration is the norm, because we are (in a manner of speaking) in a
permanent state of exception to the norm of sovereignty.66 Such a blanket statement, of
course, overbills the power and effect of international norms on powerful First World
states. But is does bring out the fact that, increasingly, even First World sovereignty isn’t
all that it’s made out to be; perhaps the First World state’s acquiescence to international
norms looks more consensual that of Third World states, but oftentimes it is not really a
choice. Moreover, it makes us consider that perhaps, in the age of globalization, the
“exceptional” forms of Third World sovereignty are more likely to become the norm;
traditional international law that conceives itself as simply the external relationships of
sovereign states becomes a historically finite concept.

That is not to say that this new economic order is any less iniquitous than the colonial
order; if anything, Hardt and Negri feel that it is more dangerous and capable of
producing economic injustice. Nor would they make the claim that this order necessarily
undoes the unfair distribution of wealth between the First and Third World – except to
the extent that this order can prompt more effective resistance and alliances directed
towards equity.67 But significantly their account captures the potential that we are seeing

64
Id. at 17. Admittedly, what Hardt and Negri’s book possesses in terms of theoretical deftness
and rhetorical impact is somewhat counterbalanced by a lack of empirical depth. This is to be
expected for a book that operates most effectively in the genre of the polemic.
65
See, e.g., Anne-Marie Slaughter, International Law in a World of Liberal States, 6 EJIL 503,
534-27 (1995) (describing the world of densely interconnected liberal states as one marked by a
‘disaggregation of sovereignty’); HARDT & NEGRI, supra note 57, at 186-90 (discussing the
forms of subjectivity resulting from the removal of the internal/external division essential to
traditional notions of sovereignty).
66
HARDT & NEGRI, supra note 57, at 18
67
Id. at 353-413.

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a refiguration of the political and economic world, and thus of the nature of the
international law that orders this world. This possibility is, in a sense, what Anghie’s
account, emphasizing continuity over rupture, does not bring out.

This is not to deny the specificity and uniqueness of the colonial relation, but it does
reframe colonialism as a site where the West tries out, with the niceties of consent, new
techniques of rule. The phenomenon of the ‘colonial laboratory’ is one that depends on
deeply unequal power relationships – but the techniques devised, whether legal doctrines
or something else, are often ones that are generalizable, and adaptable to new projects.
Perhaps, the implication of Anghie’s work is not that, with a greater awareness of
international law’s history, all states might some day be First World sovereigns. Rather,
it might be that one day all states will be, in a manner of speaking, Third World
sovereigns under a constantly refiguring international law – whether this is necessarily
bad or good is far from clear.

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