narcissistic positive to natural universal international law: dialectics of absentee colonialism

8/14/2019 Narcissistic Positive to Natural Universal International Law: Dialectics of Absentee Colonialism

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FROM NARCISSISTIC POSITIVE INTERNATIONALLAW TO UNIVERSAL NATURAL INTERNATIONALLAW: THE DIALECTICS OF ABSENTEE COLONIALISM

PRABHAKAR SINGH*

I. INTRODUCTION

The classic notions of antiquity had very imperfect notions of

international justice. With the Greeks and Romans, foreigners and

Barbarians or enemy were synonymous in language and in fact. Bytheir rude theory of public law, the persons of alien were doomed to

slavery (. . . ) piracy was unblushingly practised by the most civilized

states which then existed (. . . ) Grecian philosophers gravely assert

that they (barbarians or foreigners) were intended by nature to be the

slaves of the Greeks.1

Colonialism has been the first gift of science to the non-European world.

Developments in natural science through inventions set the pace for industrial

revolution in Europe. The industrial revolution, further, set the sail for discovering

new markets, resources and raw materials. An attempt to find markets and

materials exposed the fragile Asian and African states to the imperial designs

of colonisers, hidden in the garb of civilisers and merchants. The marriage of

mercantilism and civilisationalism on the Asian and African soil fertilised byadvances in science gave birth to colonialism. This couple conceived many a

time and brought forth cultural and military subjugation, servility, racism and

interference into the sovereignty and society of the unexcavated soil of Asia and

Africa. This family soon spread in the world what we now know as the Empire. 0

The Empire accidentally found a very faithful servant: international law, a servant

which had accompanied the empire from Europe. Born and brought up in the post

* B.A.LL.B (Hons.); National Law Institute University [NLIU], Bhopal, India. The article benefitsfrom authors academic tours of Sri Lanka, Macau, and Luxembourg. The author has beena Visiting Scholar to the European Court of Justice, Luxembourg. He was also awarded fullscholarship for 6th Academy of International Trade Law organised by Institute of EuropeanStudies of Macau (IEEM). Many thanks are due to Premier Advocate General Miguel Maduro,

The European Court of Justice, Luxembourg and Prof. Stephen Weatherill, Jacques DelorsProfessor of European Law, Somerville College, University of Oxford for their incisivecomments and suggestions for improvement on the primary draft. He is indebted to BishwaksenBandyopadhyaya for reading through the final draft for stylistic expressions. The author isequally grateful to Prof. Rachel Murray, editor AJICL, for her detailed editorial help. Errors andopinions, nonetheless,are authorsalone. He canbe reached at [email protected].

1 H. Wheaton, Elements of International Law: A Sketch of the History of the Science, Carey, Lea& Blanchard (1836) at 17.

16 RADIC (2008) DOI: 10.3366/E0954889008000066

56


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The Dialectics of Absentee Colonialism 57

Westphalian European surroundings and emerging out of the tenets of naturalism,

European international law was manufactured by a metamorphosis under the

heat and pressure of market, money and materialism. Its nature and character

changed completely. Even international laws Dutch father, Huig de Groot could

not have recognised this new form of international law for which I have coined

the term, narcissistic positive international law. It was a post Age of Reason

phenomenon though there is considerable evidence to contrary showing it was

not exactly an age of reason.2 Professor Mahendra Singh believes that

the renaissance, reformation and industrial revolution gave such a

lead to the West over the rest that not only the former conquered

and colonised the latter, but the former also got convinced that only

the ideas and theories that helped it [the West] in bringing about thistransformation, could transform the rest too.3

This article deals with the role of invented positive international law and legality

behind the project of colonisation in Asia, Africa and the Pacific. By asserting

Western conceptions of sovereignty in oriental civilisations and the policy of

cultural comparison and racial construction of sovereignty in international

law, the colonisers, racialised the vocabulary of sociology of international law.

A. Naturalism, Positivism and International Law

Two contesting sets of dialogues that have affected the character of international

law in the 19th and 20th centuries are the natural and positivistic law debates.

Natural law advocates an application of universal principles of morality and

justice, whereas legal positivism only considers the law flowing down from the

sovereign as the true law. Thus Hobbes and Austin treated international law as

international morality, and not fit to be called a proper law. Eighteenth century

Europe was expanding and capturing colonial territories and it needed its colonial

endeavours to be legitimised. International law, therefore, had to be proved a

proper law the first step in the justification of the politico-economic project

of colonisation. An otherwise construction of international law on natural law

grounds would not have approved the colonisation project of the European

states.4 Sir Hersh Lauterpacht has therefore conceded that there was indeed some

political purpose behind the colonisation scheme.5

2 J. Bacchus, Groping Towards Grotius: The WTO and the International Rule of Law, 44(2)Harvard Journal of International Law (2003) 534.

3 M. P. Singh, A Theory of Human Right for India, 4(1) Indian Juridical Review (2007), at2. The author here discusses the works of Rajani Kothai, an important scholar on third worldhuman rights debate. Also see, U. Baxi, Voices of Suffering and the Future of Human Rights,8(2) Transnational Law and Contemporary Problems (1998) 125169.

4 P. Singh, Constitutional Norms in International law: International Judicial Regimes, HumanRights and Resistance, 4(1) Indian Juridical Review (2007) 133149.

5 H. Lauterpacht, The Development of International Law by Permanent Court of InternationalJustice Longmans, Green & Co. (1934).


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58 Prabhakar Singh

Towards the end of the 19th century positivism was replacing naturalism as the

chief analytical apparatus to study law and society. Henry Wheaton, an American

writer of considerable influence, emphatically claimed that the Law of Nations

or jus gentium came out from natural laws that had emerged from the influential

works of Hugo Grotius and Puffendorf in Europe.6 But the Austinian positive law,

which came after these works, treated international law as international morality

with no force of law and fear of sanctions. 7 Henry Wheaton declared, as early

as 1836, that there was no universal law of nations. 8 In the beginning of the

20th century, lawyers like Lassa Oppenheim9 and Lauterpacht10 were trying to

establish international law as a proper law.11 The popularity of Austinian advocacy

for disqualification of international law from the determined province of law was

a hurdle before these naturalists. This was also the time when imperialism was

spreading and international law had the additional task of accommodating the role

of colonisation in international law. But for most scholars like Alexendrowicz,

colonisation had a marginal or peripheral import on the making of international

law.12 However, the new 21st century debate on colonialism and international law,

particularly by Antony Anghie, treats colonialism as the central element in the

development of modern international law.13

6 Wheaton, supra note 1 at 36, 37.

7 The major works of Austin are, Lectures on Jurisprudence, J. Murry (1897) and D. Campbell &P. Thomson (eds.) The Province of Jurisprudence Determined by John Austin , Ashgate (1998);see for discussion on Austinian Sovereign and Family of nations: G. Butler, Sovereignty andLeague of Nations, 1 British Yearbook of International Law (1920/21) 3544.

8 Wheaton, supra note 1; In this book Wheaton mentions natural law as the law of God. Hementions Hobbes, Puffendorf and Vattels influential works to define international law.

9 L. Oppenheim, The Science of International law: Its task and Method, 2 American Journal of International Law (1908) 313. There were a lot of articles published in the British Yearbookon the issue of positivistic accounts of international law. See W. Jones, The Pure Theory ofInternational Law, 16 British Yearbook of International Law (1935) at 5; J. Starke, Monismand Dualism in International Law 17 British Yearbook of International Law (1936) at 66;L. Kopelmanas, Custom as means of Creation of International Law, 18 British Yearbook of

International Law (1937) at 127.

10 Lauterpacht, United States and the Permanent Court of International Justice, 1 Pacific Affairs

(1928) at 33.

11 The publication of the British Yearbook of International law is one step in this direction. Thiswas intended to record the developments in international law as in the domestic law. From 1939to 1943 due to the outbreak of the Second World War the publication of the British Yearbookof International law was suspended. See Lauterpacht, Introduction: Resumption of the publi-cation of the British Yearbook of International Law, 21 British Yearbook of International law(1944) iii.

12 C. H. Alexandrowicz, An Introduction to the History of the Law of Nations in the East Indies

Clarendon Press (1967); C. H. Alexandrowicz, Doctrinal Aspects of the Universality of the Lawof Nations, 37 British Yearbook of International Law (1961) 506515.

13 A. Anghie, The Evolution of International Law: Colonial and Postcolonial Realities, 27(5)Third World Quarterly (2006) 73953. Antony Angies works have inspired me to research inthis particular area of international law. His article . . .

sketches out a history of the evolution of international law that focuses in particular on themanner in which imperialism shaped the discipline. It argues that colonialism, rather thanbeing a peripheral concern of the discipline is central to the formation of international lawand, in particular, its founding concept, sovereignty. It argues that international law hasalways been animated by the civilising mission, the project of governing and transformingnon-European peoples, and that the current war on terror is an extension of this project.


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This article divulges the political and diplomatic aspects of manufactured

positive international law because the colonial and postcolonial realities of

international law have been obscured by the analytical frameworks that governed

traditional scholarship on the subject14 and the new scholarship ought to provide

fresh impetus and dimension to this study.

II. COLONIALISM, EUROPE AND INTERNATIONAL LAW

For many, the universalisation of international law is principally the political by-

product of imperialism. However true this may be, I would argue that the shift

to positivism of international law from naturalism was a conscious choice by

European scholars like Westlake,15 Wheaton16 and Oppenheim.17 International law

could only then be legitimised and imperialism justified. Although colonialism

has ended today, many prominent scholars have talked about new forms of

imperialism as dialectics of colonial sovereignty.18 In their book Empire, Hardt

and Negri link the global transformation to cultural and economic changes

in post-modern society to new forms of racism, new conceptions of identity

and difference, new networks of communication and control, and new paths of

migration.19 Indeed, the European project of colonisation did never cease and by a

complex matrix of economics and politics it continues to survive even today. The

political domination of the first world continues. Only the leaders have changed.

America and not England now leads it in the 21st century with the force of

international relations.

The new family of nations largely excluded the participation of newborn sovereigns. The family of nations built over self-appreciating narcissistic

construction of dominant culture by imperial Europe could not have adopted

an uncivilised non-white population in its fold. But no one defined, even in the

academic debate, what constituted a real civilisation that clearly distinguished

the whites from the rest. The so called barbarism of the Eastern societies was

an assumption of exploitative designs engineered for political and economic

domination by the European colonisers. Wheaton, for example, says that piracy

in high seas was unblushingly practised by the [so-called] civilised nations.20

Thus trade was the only concern which accounted for this behaviour of European

states. Sea formed an important arena where naval domination would ensure

a competitive commercial and military edge. The Dutch, Spanish, Italian,

14 Ibid.

15 See Generally, J. Westlake, Chapters on the Principles of International Law, University ofMichigan Press (1894).

16 supra note 1.

17 See, John Pawley Bate (Trans.), Die zukunft des vlkerrechts by Lassa Oppenheim [The Futureof International Law], H. Milford (1921).

18 M. Hardt and A. Negri Empire, Harvard University Press (2000).

19 Susan Mark discusses the book Empire and the theory by Hardt and Negri in S. Marks EmpiresLaw, 10(1) Indiana Journal of Global Legal Studies (2003) 449466.

20 Wheaton, supra note 1 at 17.


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60 Prabhakar Singh

Portuguese, French and English fought among themselves for greater control and

domination of the sea bound trade. The open sea argument prevailed over the

close sea argument in the battle of books and this marked the first step in the

culmination of the era of colonialism.21 The eastern Islamic nations,22 the East

Asians23 and the South Asians24 were equally active in international trade and

thus there could hardly be any difference in the nature of commercial business of

the Eastern and Western civilisations.

But what was the surreal intention of the Europeans behind racial and cultural

discrimination? What made them make the slave trade flourish? The trade in black

natives of Africa subjected the entire African population to an era of humiliation

that culminated into an unrecognisable mutilation and subsequent loss of African

identity. Imperialism surreptitiously moved from strength to strength: from slave

trade to neo-colonialism to absentee colonialism.25 James Gathii in the same vein

demonstrates that the inconsistency between the promise of liberty and the reality

of colonial illiberalism created room for resistance and reconstitution of colonial

territorial acquisition by colonized people.26 The grounds upon which the line

of civilised and uncivilised was drawn were many: race, religion, economics

and political strength of states. The angle of legality was later introduced for

discriminating a strong sovereign from a weak sovereign.

European international law has always been linked to the development of an

autonomous legal field within a state that has succeeded in unifying a particular

European territory, military, political and cultural, under its sovereignty.27 This

is also the point of difference between European and Asian sovereigns. The

European idea, however, never extended beyond the political and geographical

21 P. Singh, The Political Economy of the Law of the Sea in the era of Absentee Colonialism: 7Nakeeram (2005) 22333, at 225, 227. I have argued and defined absentee colonialism:

. . . In our part of the world what has really been lacking is the ingenuity of ideas for ourbetterment . . . we have been dependent on the West for solution to our problems . . . thelocation and identification of our problems has also been left in the hands of the West. Butwe have reasons to doubt the Western solutions to our problems. This is one of the reasonswhy the Absentee Colonialism has been thriving in our part of the world.

22 See, N. Hanna (ed.), Money, Land and Trade: An Economic History of the MuslimMediterranean, IBTauris Publishers (2002).

23 G. Khoo and D. Lo, Asian Transformation: A History of South-East, South, and East Asia,Heinemann Educational Books (1977).

24 J. Pluvier, South East Asia from Colonialism to Independence, Oxford University Press (1974).

25 See extensively, P. Singh, supra note 21, for debate on Absentee Colonialism; see R. M.Spitzer, The African Holocaust: Should Europe Pay Reparations to Africa for Colonialismand Slavery?, 35(4) Vanderbilt Journal of Transnational Law (2002) 131347; J. Suret-Canale,

Essays on African History: From the Slave Trade to Neo-Colonialism, Hurst & Co. Publishers(1988).

26 J. Gathii, Imperialism, Colonialism and International Law Working Paper availableat http://law.bepress.com/expresso/esp/1262 (visited on 2nd June 2007); see, J. Gathii,Neoliberalism, Colonialism and International Governance: Decentering the International Lawof Governmental Legitimacy, 98(6) Michigan Law Review (2000) 19962054.

27 G. Sacriste and A. Vauchez, The Force of International Law: Lawyers Diplomacy on theInternational Scene in the 1920s, 32(1) Law and Social Inquiry (2007) 84.


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limits of Europe. Rather the concept of sovereignty that was applied in Asia

and Africa was diametrically opposite, schemed to work for the commercial and

political advantage of European colonisers.

The effective development of international law in Europe was the effort of

lawyers who did not restrict themselves to the strict functions of lawyers. It

was the effort of a heterogeneous group of international lawyers (scholars,

judges, legal advisers of national diplomacies, private practitioners) to collectively

build and maintain an international law apparently freed from the driving

forces and loyalties of international relations (IR) that is, national interests

and political allegiances.28 But what constituted the national interests of

those who wished to create and maintain such a brand of pure or positive

international law unadulterated by the international relations? What must have

been the subtle reasons behind the denunciation of the role of IR to formulate a

positive international law? While this heterogeneous group was referring to the

universalistic ideals of a legal science, according to Sacriste and Vauchez these

lawyers were nevertheless generally incapable of disentangling themselves from

the national interests intrinsic to the exercise of diplomacy. 29 As a matter of fact,

their legal arguments were generally perceived as mere rationalisations of pre-

existing national diplomatic interests.30 However, the liberty to manoeuvre the

international law of a country varied greatly depending upon the political strength

of that particular European country and its colonial stakes. Therefore European

and American legal experts had to manage a far more complex matrix of blending

universalistic principles of international law into the political interests of the large

nations they represented.

First of all, it depended on the consistency between IL principles

and the national interests of their government. As a matter of fact,

the legal advisers of the smaller European countries Belgium, the

Netherlands, Greece, or the Scandinavian countries could afford to

use the universalist principles of international law (from the concept

of international solidarity to the ideal of the equality between all

states) all the more freely, as it tended to generally coincide with the

interests of their diplomacy. Conversely, to some other countries, and

particularly the great powers of the time, these very same principles

appeared as a potential threat to their free maneuverings on the

international scene.31

Positive jurists, particularly Hans Kelsen, categorically announced in hisremarkable book the Pure Theory of Law that realisation of justice is not essential

28 Ibid at 85.

29 Ibid at 86.

30 M. Madsen and A. Vauchez, European Constitutionalism at the Cradle: Law, Lawyers in theConstruction of a European Legal Order (19201960) in A. Jettinghoff, H. Schepel (eds.), In

Lawyers Circles: Lawyers and European Legal Integration, Elzevier Press (2005) 1534.

31 supra note 27, at 86.


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62 Prabhakar Singh

to law.32 This, I think, gave a serious blow to the case for equality of treatment

to all races by law. However, the advocacy of oppression of the inferior and the

sub-human in the colonised world has as much to do with a confused political

sociologist Marx, as it has to do with Kelsen, the positive international lawyer.

Karl Marx, as Ashish Nandy points out, felt that history would produce new

social consciousness in Asia and Africa out of oppression, violence and cultural

dislocation along with new technological and social forces!33 He saw the move

to colonialism as the next step of development from a feudal war ravaged 17 th

century Europe. A third world view of law, society and colonialism can potentially

distort, as we can see in Marxs case, the image of some of the Enlightenment

figures of Europe. The Second World War, Nandy believes, has obviated that

the drive for mastery over men is not merely a by-product of a faulty political

economy but also a world view which believes in the absolute superiority of the

human over the non human, the masculine over the feminine, the adult over the

child, the historical over the ahistorical and the progressive and modern over the

traditional or savage.34 It is now time to turn to the second form of colonisation,

the one which at least six generations of the third world have learnt to view as

a prerequisite for their liberation.35 The new forces of absentee colonialism,

as I call it, not only operate through the sophisticated forces of international

relations, but release forces, as Nandy feels, within the colonised societies to

alter their cultural priorities once for all.36 The first colonisation died with the

Empire but the second is independent of its roots those who battle the first

often guiltily embrace the second. The conventional anti-colonialism has already

become an apologia, as Nandy once cautioned with fear, for the colonisation of

minds.37

Modern colonialism won its great victories not so much through its

military and technological prowess as through its ability to create

secular hierarchies incompatible with the traditional order. These

hierarchies opened up new vistas for many, particularly for those

exploited or concerned within the traditional order. To them the new

order looked like-and here lay its psychological pull-the first step

towards a more just and equal world. That was why some of the finest

critical minds in Europe-and in the East-were to feel that colonialism,

by introducing modern structures into the barbaric world, would open

up the non-West to the modern critical-analytic spirit.38

32 M. Knight (trans.), Pure Theory of Law by Hans Kelsen, Lawbook Exchange (2002) at 48.

33 A. Nandy, The Intimate Enemy: Loss of Recovery of Self Under Colonialism in A. Nandy (ed.)Exiled at Home, Oxford University Press (1998) at v. of Preface.

34 Ibid at vi.

35 Ibid at vii.

36 Ibid at vii.

37 Ibid.

38 Ibid at iv.


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III. THE INTERNATIONAL LAW POSITIVISM: THE EUROPEAN

INTERNATIONAL LAW SCHOLARSHIP

A. Lassa Oppenheim

Lassa Oppenheim,39 an international jurist of German origin but British

citizenship is known for advocating grounds for a positive international law. 40

International law has never been treated as a positive law as there was no

international sovereign.41 The positive international law of Oppenheim only takes

into account Euro-American civilisations. Such a reading of international law

is quite understandable because at the time of his writings late 18 th century

and early 19th century the world was politically divided into two categories:

coloniser states and the colonised territories. The Afro-Asian territories were

colonies of Britain, France, Spain and other European powers.42

It was obviously difficult to find a Euro-American voice for the assimilation of

Afro-Asian considerations in the international law fold. The reasons were more

cultural than political: the East was considered non-scientific in its approach to

governance and values of law. Therefore positive international law established

on the foundations of scientific findings could not be a constituent to it. Largely

the writings of Lassa Oppenheim43 have been theoretically shallow and seek to

exclude, from international law, not only the rights of all individuals but also the

rights of people beyond the Euro-American system. As discussed elsewhere,

Sovereign power is territorial in character and not subject to any

limitation by higher or co-ordinate power . . . which of the two species

identified; political or legal sovereignty has priority. Is ultimate

political power a precondition to ultimate legal authority, or vice

versa? The tradition of Hobbes, carried on by early Austin and finally

re-conceptualised in Germanic tradition by Carl Schmitt is unhesitant

in ascribing primacy to the political.44

The colonisers possessed the political will and military strength to materialise

the project of colonisation in the wake of a weak and passive resistance

offered by the colonised territories. Colonies had become the central aspect of a

coloniser countrys economy. Positive international law was used to advocate the

39 See, supra note 17, also see, S. J. Astorino, The Impact of Sociological Jurisprudence onInternational Law in the Inter-War Period: The American Experience, 34 Duquesne Law Review

(1996) at 277.

40 B. Kingsbury, Legal Positivism as Normative Politics: International Society, Balance of Power,and Lassa Oppenheims Positive International Law, 13(2) European Journal International Law

(2002) 401437.

41 See P. Singh, Absentee Colonialism, supra note 21, also see, A. Orakhelashvili, The Idea ofEuropean International Law, 17(2) European Journal International Law (2006) 315347.

42 See, B. Kingsbury, Sovereignty and Inequality, 9(4) European Journal International Law

(1998) 599625.

43 M. Schmoeckel, The Internationalist As A Scientist And Herald: Lassa Oppenheim, 11(3)European Journal International Law (2000) 699.

44 P. Singh, Austins Positivism: Is it a Retrospective Investigation of Contractualist Sovereign?30(4) Cochin University Law Review (2006) 4274, at 53.


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64 Prabhakar Singh

manufactured legality of the colonisation project. The later positivists replaced

sovereignty by society and therefore more than legality; it was the racial

inferiority that was made the ground of discrimination between the oriental and

European sovereign and people.

B. Carl Schmitt

Carl Schmitt is one of the most controversial figures in the European tradition of

positivistic scholars.45 He is known for his allegiance to the cause of promotion

of Nazism and racial theory of superiority.46 As some authors have tried to argue

positivism supported Nazism in Germanys current legal system, 47 it is important

to note here that Carl Schmitts works on legal positivism were never in favour

of colonisation.48 Rather they forwarded a theory of enemy, friend and war where

only European states were taken into account. He aspired to establish the German

Sovereignty over all other states in Europe.

His example is important for our debate as it was for the first time that the

theory of positivism applied to the colonial construction of international law,

and potentially threatened the otherwise secured European colonisers like France

and Britain.

IV. IMPERIALISM AND INTERNATIONAL LAW

During the last twenty years of the last century Great Britain,

Germany, France and Russia had bitten off huge mouthfuls of Africa

and Asia, which are not yet chewed, digested, or assimilated.49

45 G. Schwab (tans.), The Concept of the Political by Carl Schmitt, University of Chicago Press(1996). The Leiden Journal of International Law published an issue devoted to the discussion ofworks of Carl Schmitt. See, the 2006, volume 19 issue 1; L. Odysseos and F. Petito, ConfrontingInternational Law with International Relations (and vice-versa): The International Theory of CarlSchmitt and the Present Global Predicament(s), (2006) Leiden Journal of International Law

17; C. Burchard, Interlinking the Domestic with the International: Carl Schmitt on Democracyand International Relations, Leiden Journal of International Law (2006) 940; T. Zarmanian,Carl Schmitt and the Problem of Legal Order: from Domestic to International, Leiden Journalof International Law (2006) 4167; J. Friedrichs, Defining the International Public Enemy;The Political Struggle behind the Legal Debate on International Terrorism, Leiden Journalof International Law (2006) 6991; R. Howse, Europe and the New World Order: Lessonsfrom Alexandre Kojeves Engagement with Schmitts Nomos der Erde, Leiden Journal of

International Law (2006) 93103.

46 See, C. Joerges and N. Singh Ghaleigh, (eds.), Darker Legacies of Law in Europe: The Shadow ofNational Socialism and Fascism over Europe and its Legal Traditions, Hart Publishing (2003);K. Engelbrekt, Darker Legacies, Schmitts Shadow and Europe, 7(2) German Law Journal

(2006) 10926.

47 D. F. Vagts, How much of Nazi and Fascist Law survived in the new Europe?, 7(2) GermanLaw Journal (2006) 237.

48 F. Mgret, War? Legal Semantics and the Move to Violence?, 13(2) European JournalInternational Law (2002) 361.

49 J. A. Hobson, Imperialism: A study, George Allen & Unwin ltd. (1961) 223; Nathan J. Brown,Retrospective: Law and Imperialism: Egypt in Comparative Perspective, 29(1) Law and Society

Review (1995) 103, 106, 100.


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. . . [e]very other European nation recognises the true outline of

British Imperialism and charges us with hypocrisy in feigning

blindness. This charge is false; no nation sees its own shortcomings;

the charge of hypocrisy is seldom justly brought against an individual,

against a nation never. Frenchmen and Germans believe that our zeal

in promoting foreign mission, putting down slavery and in spreading

the arts of civilisation is a false disguise conveniently assumed to

cover naked national self-assertion. The actual case is somewhat

different.50

These lines by Hobson sharply bring out the aspirations of the British colonial

minds which undoubtedly were the leaders in the colonisation project. It is

interesting to note that Hobson uses the term spreading the art of civilisation(why not read this as art of colonisation!) for the project of colonisation. The

agenda (or the art) of colonisation was simultaneously carried on in many fronts:

political, social, and cultural and thus the [n]et result was the destruction of

( . . . ) civilizations and their Hispanicization Christianization ( . . . ) fundamental

racism of the Anglo-Saxon colonists explains why this model was reproduced

elsewhere ( . . . ) [F]or whereas the Catholic Spaniards acted in the name of the

religion that had to be imposed on conquered peoples, the Anglo-Protestants took

from their reading of the Bible the right to wipe out the infidels. The infamous

slavery of the Blacks (was) made necessary by the extermination of the Indians

or their resistance.51 The colonisers intended a complete destruction, either of the

people, on racial inferiority grounds, or of the religion or culture of the captured

native and therefore their cultural identity.The 19th century colonisers had to establish the primacy and superiority of the

European sovereign, which is the source of law in the positivistic constructions,

over the non European sovereigns.52 Only then the project of colonisation

could be forced ahead wherein the resources of the colonies, both natural and

human, could to be exploited. Therefore, the technologically underdeveloped

and internationally unexposed societies of Asia, Africa and the Pacific were

consciously chosen to be the point of difference between the coloniser and the

colonised by European international law scholars. By using scientific grounds,

European colonisers were able to declare all the non-European Others, inferior

50 Ibid at 196.

51 S. Amin, Imperialism and Globalization, 53(2) Monthly Review (2001) available athttp://www.monthlyreview.org/0601amin.htm (visited on 12th March 2007).

52 For the classical concept of sovereignty, see Antonio Perez, Who Killed Sovereignty? OrChanging Norms Concerning Sovereignty in International Law, 14(2) Wisconsin International

Law Journal (1996) 463. He writes, at 466:The changing classical concept of Sovereignty, as every beginning student of internationallaw recalls, draws on the political ideology and experience of 17th Century Europe, the socalled Westphalian Conception . . . as more limited conceptions of state sovereignty evolved,such concepts as condominium and mandate were best understood as, respectively, kindsof joint ownership and trusts drawn from civil law traditions. Thus property became kind ofruling ideology in international law.


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66 Prabhakar Singh

and unfit to become part of the family of nations: a family where the Europeans

claimed membership on cultural and racial superiority grounds.

A cultural translation of positive European sovereign in effect assumed the

superiority of civilised races and the importance of development of natural sci-

ence. But this was not done without any cost. Manufacturing a positive European

sovereign entailed a complete disregard to historicity apart from legitimising

violence of words and actions while expanding the colonial project. The

European definition of civilisation which came to its colonies highlighted the

relative political reality of race and law.

A. Post Second World War International Development or Fragmentation

After the Second World War, the ICJ initially worked in favour of the coloniser

countries. The reasons are largely obvious. The ICJ itself was a construct of

positivistic international law. 19th and 20th century Europe had thrived on the

positivism of international law application. It needed a lot of time before natural

law could again be considered in the political operation of international law,

through the international courts. Later on, when various other world courts were

developed, such as ITLOS, the decisions by them led to what the scholars call:

the problem of fragmentation of international law.53 As Alexandra Kemmerer

observes:

As the steady proliferation of rule systems and jurisdictions

corresponds to an ever accelerating differentiation and fragmentation

of global law, institutions become regimes, rules become regulations,

and government becomes governance. It is not responsibility that

matters, it is compliance. Lawyers reinvent themselves as experts in

international relations.54

This observation points to the issue of constitutionalism in international law while

discussing fragmentation. This new debate on constitutionalism, as Koskenniemi

observes, is an effort to move away from diplomacy and politics the politics of

sovereignty in the early twentieth century, the politics of functional diversification

in the early twenty first by reading the international legal system through definite

(though perhaps implicit) hierarchies of rules or institutions reflecting choices

of value often expressed in Latin formulas such as jus cogens or obligations

erga omnes.55 This is a relatively new area of research where international

53 P. Singh, supra note 4 at 148; see generally, K. Mickelson, Rhetoric and Rage: Third WorldVoices in International Legal Discourse, 16(2) Wisconsin International Law Journal (1998)353419; M. wa Mutua, Why Redraw the Map of Africa?: A Moral and Legal Inquiry, 16

Michigan Journal of International Law (1995) 111376.

54 A. Kemmerer, Conference Report Global Fragmentations: A Note on the Biennial Conferenceof the European Society of International Law, 7(7) German Law Journal (2006) 72933.

55 M. Koskenniemi, The Fate of Public International law: Between Technique and Politics,70(1) Modern Law Review (2007) 130. In this article Koskenniemi cites other works ofrelevance. They are: A. Verdross, Die Verfassung der Vlkerrechtsgemeinschaft, Springer (1926).C. Tomuschat, International Law: Ensuring the Survival of Mankind on the Eve of A New


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law, international relations and globalisation have been discussed.56 The ongoing

project of economic integration challenges the paradigms of constitutionalism.

This, feels Miguel Maduro, challenges the state monopoly of constitutionalism,

the autonomy of national political communities, and the traditional forms

of participation and representation.57 This is therefore an important point of

debate from the Southern perspective. The economic institutional mechanism

of financial aid has the capacity to affect the domestic political choices of a

nation. The degree of effect depends upon the insulatory capacity of a particular

nation. Very obviously it can be concluded that the southern nations are excellent

conductors for global policy choices made by powerful nations. Historically the

domestic national interests of the weaker countries have always been hijacked

both in the past and present at the cost of participation and inclusion in the new

international law fold.

The subject of international law is ever evolving with the social, cultural and

economic changes in the North and the South in the postcolonial world.58 Also,

very recently, the proximity of international law and international relations has

come to be recognised by Western and Eastern scholarship.59 International law,

however, as regards the procedure and institutions for adjudication of disputes,

Century, General Course on Public International Law, 281 Recueil des Cours de lAcadmiede droit international (2001) 6372. A. von Bogdandy, Constitutionalism in International Law.Comment on a Proposal from Germany, 47(1) Harvard International Law Journal (2001) 223;P. Dupuy, Lunit de lordre juridique international, Cours gnral de droit international public,297 Recueil des Cours de lAcadmie de droit international (2002) 269313 (on jus cogens).See, S. Kadelbach, Ethik des Vlkerrechts unter Bedingungen der Globalisierung, 64 ZaRV

(2004) 120 and E. de Wet, The Emergence of International and Regional Value Systems asa Manifestation of the Emerging International Constitutional Order, 19(3) Leiden Journal of

International Law (2006) 611632.

56 I have particularly been inspired by the works of Prof. Miguel Poiares Maduro; see MaduroFrom Constitution to Constitutionalism: A Constitutional Approach to Global Governance , inDouglas Lewis (ed.) Global governance and the Quest for Justice-International and Regionalorganization, Hart Publishing, (2006) 226250. While teaching in the Academy of InternationalTrade Law 2006 organised by the Institute of European Studies of Macau, he introduced me tothe other works on constitutionalism by E. de. Wet, International Constitutional Order, 55(1)

International and Comparative Law Quarterly (2006) 5176.

57 M. Poiares Maduro, The Constitution of the Global Market in Francis Snyder (ed.) Regional andGlobal Regulation of International Trade, Hart Publishing (2002) at 49; see the works of NoamChomsky, The Pentagon Papers and U.S. Imperialism in South East Asia, The Spokesman

(197273) available athttp://www.chomsky.info/articles/1972.htm. He says:. . . In a capitalist society, the operative form of autocratic rule is the private control of the

means of production and resources, of commerce and finance; and further, the significantinfluence on state policy by those who rule the private economy, and who indeed largelystaff the government. As already noted, elements of the private autocracy who have a specificconcern with foreign affairs will naturally tend to use their power and influence to direct statepolicy for the benefit of the interests they represent, regardless of social costs. Where theysucceed, we have imperialist intervention, quite commonly.

58 R. Y. Jennings, Progressive Development of International Law and Its Codification, 24 BritishYearbook of International Law (1947) 301.

59 See, O. Yasuaki, International law in and with International Politics: The Functions ofInternational law and International Society, 14(1) European Journal of International law (2003)105137.


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68 Prabhakar Singh

says Ram Prakash Anand, has been woefully deficient.60 It is [a] jungle law

imperfectly ameliorated by a fragmentary and hesitant progress in the direction

of a legal order.61 This observation is important to examine given the fact that

establishment of tribunals and courts by the UN have been a recurring feature.

Long periods of war and conflict, whether in the Middle East or Africa, have

always been punctuated by the setting up of an adjudicatory body. The rule of

law has never been an actual and true rule of law; from the time colonisation

began to the beginning of 21st century the

. . . [q]uantity and type of formal law in a given society has virtually

no bearing on the level of orderliness or violence in that society.

What Americans call the rule of law is a particular set of cultural

commitments that has little to do with formalistic structures, and thismeans that promoting the rule of law is essentially a project of norm-

creation, rather than a project of legal formalism.62

The post Second World War universalisation of international law under the United

Nations was de facto a result of increased political insecurity among the leading

European coloniser states rather than a recognition and respect for the other Asian

and African sovereigns and cultural pluralism. The impending scare of masters

turning into slaves from the axis of evil worked as the adhesive force among the

colonisers and they worked out a plan to universalise international law to ensure

greater military security and cooperation. The formation of the UN was of course

the first step.

V. THE SOUTH AND INTERNATIONAL LAW

How can international law be possibly defined? International in international law

imparts to this law a meta-national complexion. If the law purports to function in

the spirit of principles of justice, equity and good conscience then international

law ought to achieve the element of universality of application. There can be

true universality of application provided international law does not discriminate

between Asian, African or European states, on the grounds of culture, race,

language and dominant political ideology. But none can argue that the element of

universality of international law is as old as international law itself. It is actually

an outcome of the Second World War trauma of Europe. The leading coloniser

60 R. P. Anand, Enhancing the Acceptability of compulsory Procedures of International DisputeSettlement, 5 Max Planck YB U.N. Law (2001) 120, at 2. See other relevant works of thesame author; R. P. Anand, Attitude of the Asian-African States Toward Certain Problemsof International Law, in F. Snyder and S. Sathirathai (eds.), Third World Attitudes Toward

International Law: An Introduction, Martinus Nijhoff (1987) 522.

61 Ibid; also see, Anand, Attitudes of the Asian-African States toward Certain Problems ofInternational Law, 15(1) International and Comparative Law Quarterly (1966) 5575; AnandRole of the New Asian-African Countries in the Present International Legal Order, 56(2)

American Journal of International Law (1962) 383406.

62 R. Brooks, The New Imperialism: Violence, Norm and Rule of Law, 101(7) Michigan LawReview (2003) 2275.


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states of Europe survived the scare of defeat and attempted vilification of political

sovereignty by the defeat of Adolf Hitler.

The colonial world had begun crumbling by the middle of the 20th century. The

decolonisation process in the post Second World War order led to the formation of

various new sovereign states in Asia and Africa. They were small, impoverished

and largely dependent upon their former colonial masters for aid to build up their

economy.63 Their legal system was the unasked gift of their colonial past and the

new political heads of states sought to align themselves in the new international

order largely because they were educated in Western institutions and they could

not imagine an indigenous and isolated political existence in an ever integrating

world. Robert Jackson has in particular described these new countries as quasi-

states, having a negative sovereign64 as they exist more by the support and

indulgence of the international community than by the abilities and efforts of their

own governments and peoples. While investigating the international normative

framework that upholds sovereign statehood in the Third World he, therefore, finds

the third world sovereign a negative sovereign.65

A. Absentee Colonialism and Negotiable Sovereignty: From

International Law to International Relations

As the territorial colonisation started to dissolve into oblivion, the new third world

began to prosper. The emergence of the ordinary third world masses as vibrant

political actors could not be overlooked and this led to the changing variables in

the equation of the West and the third world. The only tool for the governance

for the new masses was development and not colonialism.66 Few authors,however, suggest that though the colonisation is over empire is alive albeit in

new form.67

I have, however, discussed a subtle middle way between the options of

development and colonialism i.e. the rule by absentee colonialism in the

contemporary political economy.68 The third world is politically independent;

63 See, P. Singh and V. Sterpos, The WTO/GATT Regime: International Trade, Justice and HumanRights: Southern Considerations, 4 Sri Lanka Law College Law Review (2006) 140156;F. Whitcomb Aymar, Problems in Positive International Law, Nation Press (1926); also see,G. Kreijen, State Failure, Sovereignty and Effectiveness: Legal Lessons from the Decolonizationof Sub-Saharan Africa, Martinus Nijhoff (2004) 232.

64 R. Houghwout Jackson, Quasi-States: Sovereignty, International Relations, and the Third World,Cambridge University Press (1990) 26, 78.

65 R. Houghwout Jackson, Quasi-States, Dual Regimes, and Neoclassical Theory: InternationalJurisprudence and the Third World, 41(4) International Organizations (1987) 519-549.

66 B. Rajagopal, International Law from Below: Development, Social Movements and ThirdWorld Resistance, Cambridge University Press (2003) at 25; B. Rajagopal, International Lawand Social Movements: Challenges of Theorizing Resistance, 41(2) Columbia Journal ofTransnational Law (20022003) 397433.

67 H. L. Wesseling, Editorial: changing viewson Empireand Imperialism, 12(3)European Review

(2004) 267271.

68 P. Singh, Supra note 21 at 226; also see, Claire Cutler, Critical Reflections on the Westphalianassumptions of international law and organization: a crisis of legitimacy, 27(2) Review of

International Studies (2001) 13350.


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70 Prabhakar Singh

nonetheless it has never been allowed to function as a true sovereign. International

trade and commerce, being a powerful tool for prosperity have always been

used by the first world to interfere into the sovereignty of smaller and weaker

states.69 This has turned sovereignty into a negotiable instrument, which could be

bought for a price like monetary aid through Bretton Wood institutions and a

possible licence to be part of an alliance featuring major first world nations like

the United States of America and Britain.70 International relations, therefore, are

the new defining forces in a rule by absentee colonialism and not international

law. The course of scholarly debate on sovereignty and state has therefore

changed and the classic international law is gradually being replaced by a theory

of international relations that boasts of a much more sophisticated vocabulary than

diplomatic international law.71

The nature of international law has started to change; both because the new

education has given voice to original third world scholarship and the economic

euphoria of the Asian countries has created new relations. It has, therefore,

changed the political and diplomatic behaviour of the West for the East. Rajagopal

says that

new international law, with its focus on the status of individualism

and truly global community, was seen as constituting a clean epi-

stemological break with the pre-war international laws subservience

to power and ethnocentrism . . . [t]he new international law was as

much up in the discursive and ideological embrace of modernity, as

the pre-war colonial international law, mainly through the institutions

and practices of development which were invented after the war tocontrol, manage, order, and reproduce social reality in the so-called

third world.72

The symptoms could be easily seen. The ILO banned slavery and forced labour in

the inter-war period. The new international law of human rights had decisively

transcended the old international law of sovereignty which had been tainted

by, among other things, colonialism.73 It is, however, interesting to note that

two particular kinds of European historical events have influenced the making

of international law, namely: war and international trade. I do not intend to argue

that war has been an exclusive European phenomenon. But trade wars have played

69 P. Singh, Supra Note 4 at 138.

70 After the terrorist attack of 9/11, America forged an alliance to declare a war against terrorism.India and Pakistanboth becameso called strategicpartners to this. After, a Military Coupin 1999,a democratically elected government in Pakistan was removed by army general Parvez Mussaraf.Now, it would have been difficult for America to operate within Pakistani Territory in search forpossible terrorists had there been a legitimate democratic government. A military governmentcould always be bought for a currency. Here, international relations become the defining force ofa government and not international law. The level of interference is also very high.

71 J. Goldsmith and E. Posner, The Limits of International Law, Oxford University Press (2005).

72 Rajagopal, Supra Note 66 at 27.

73 L. Sohn, The New International Law: Protection of the Rights of the Individuals rather than theStates, 32(1) American University Law Review (1982) at 1.


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a pivotal role in the making of international law. Both trade and war might seem

two opposite kinds of situations, nevertheless, they are related.

Traditionally war and trade have been treated as antithetical to the cause of

international relations. But Grotius international law was primarily based on the

theories or conduct of states due to war.

The jurists and scholars of the 17th century had to answer questions which were

never raised before. Legal theorists came across new forms of conflict, concerning

explicit commercial competition among the civilised European countries, which

were manifested in terms of violent confrontations between private merchants

pursuing private commercial trade interests.74 The very origin of international law

was private interest. No wonder the same international law was later used for the

private commercial interest of the coloniser nations.

In order to salvage the damage done by colonialism, various scholars from the

West and East have forwarded an academic scheme of an international social and

political order. In the Indian context B. S. Chimni has forwarded an Alternative

vision of a just world order.75 These varied perspectives, in the absence of

any systematic contemporary thinking in the literature on international law and

institutions, are germane to understanding the response of the southern state and

its people to issues relating to globalisation, international law and international

institutions.76

B. The Construction of Antithetical International Law Soveriegn

The possible agenda behind the rigorous positivism resurrected in the area

of international law was to legitimise servility and subjugation of those whowere not so ambitious and assertive in terms of defining the territorial and

geographical limits of existence and cultural expansion. The Asiatic values

comprise collectivism and group interest instead of individuality and this was true

for Asian states and society as well.77

Taking the Indian example where the ancient tradition of Vedas and Puranas

taught the Indians to treat the entire earth (Vasudha, the Sanskrit equivalent

for earth) as home and everyone living on it as relatives (Kutumbakam, Sanskrit

equivalent for relatives), the positivism of the state authority structure could not

have survived. In light of such teachings, the international law that existed in

74 Ibid at 803.

75 B. S. Chimni, Alternative Vision of World Order: Six tales from India, 46(2) Harvard

International Law Journal (2005) 389402. This article outlines six Indian visions which havedominated the academic and political discourse in India: Leftist, Dalit, Subaltern, anti-modernist,and spiritual. In this article, Chimni cites his other works published in various journals to qualifyhimself as the regular Indian voice on this topic. They are: Chimni, International InstitutionToday: An Imperial global State in making, 15(1) European Journal of International Law

(2004) 137; Chimni An outline of a Marxist Course on Public International Law 17(1)Leiden Journal International Law (2004) 137; Chimni, Teaching, Research and Promotionof International Law in India: Past, Present and Future, 5(2) Singapore Journal of Internationaland Comparative Law (2001) 36887.

76 Chimni, Ibid at 389.

77 The Encyclopedia of Politics: The Left and the Right, Vol. 1, Sage (2005).


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72 Prabhakar Singh

the Vedic India was actually a natural international law, 78 which advocated the

equitable distribution of natural resources building a culture of assimilation rather

than that of military and political subjugation and territorial conquest. The entire

Vedic vocabulary denies entry to positivistic principles and promotes natural law

morals and values.79 Describing particularly the Hindu Humanitarian laws, Surya

Subedi has cited non-aggression and defence as the only just cause to declare a

war on another state.80

The entire cultural fabric of eastern civilisations rests upon the rules of

administration and governance that denounces subjugation of kings by kings, or

sovereign by sovereign. Even the expansion of empire by a Hindu King in ancient

India to become a Chakravarty was done by performing Rajasuya Yajana. It was

done without interfering into the sovereignty of the defeated state.

In the invented tradition of international law positivism, the difference

of cultures was excessively highlighted by European scholars like Westlake

to prepare the grounds for positivistic resurrection of sovereignty as the

tool to classify the haves and have-nots of sovereignty by using the

conceptual tools of positivism, [colonisers] postulated the gap, understood

principally in terms of cultural differences, between the civilized European

and uncivilized non-European world.81 By introducing the tools of religious

conversion to Christianity, the natives and aboriginals were introduced to a

cultural comparison [s]overeignty became identified with a specific set of

cultural practices to the exclusion of others .82 The Western counterpart was

definitely superlative in terms of technological and scientific discoveries and

inventions.83 For the next two and half centuries in Asia and Africa, the Europeans

set upon themselves the task to identify the paucity of Eastern cultures and preach

78 T. L. H. MacCormack and G. J. Simpson, The Law of War Crimes: National and InternationalApproaches, Martinus Nijhoff (1997) at 35.

79 S. Subedi, The Concept in Hinduism of Just War, 8(2) Journal of Conflict and Security Law

(2003) 339.

80 The concept of Panchsila between India and China offers the Western world a glimpse into theconcept of sovereignty derived from Hinduism and Buddhism. Since China and India are amongthe most culturally diverse and value-laden representatives of Asian cultures. The PanchsheelPrinciples are a good example from which to derive the Asian international law based on NaturalLaw Principles. When an independent India and a post-revolution China were in their infancy,they devised quite an innovative Asian approach, known as the doctrine of Panchsheel deeplyrooted in their ancient history and culture, to govern their internal and bilateral relations. In a1954treaty between India and China, they agreedto thefollowing Five Principles of Peaceful Co-existence: Mutual respect for each others territorial integrity and sovereignty, Non-aggression,non-interference in each others internal affairs, Equality and mutual benefit, and Peaceful co-

existence. These principles have not only been central in the governance of relations betweennearly one-third of the worlds population rather Panchsheel became the main force behind theNon-Aligned Movement. See speech by Former President of India, K. R. Narayan, The 50thAnniversary of Panchahseel, 3(2) Chinese Journal of International Law (2004) 369.

81 A. Anghie, Finding the Peripheries: Sovereignty and Colonialism in Nineteenth CenturyInternational Law, 40(1) Harvard International Law Journal (1999) 180, at 5.

82 See Ibid, (emphasis supplied); also see, T. Ansah, A Terrible Purity: International Law, Morality,Religion, Exclusion, 38(1) Cornell International Law Journal (2005) 970.

83 Now there is a lot of material detailing with ancient Chinese legal system. See M. Macauley,Social Power and Legal Culture: Litigation Masters in Imperial China , Stanford University Press(1998). A reading of the book offers, in great detail, the complete culture of litigation in China,


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the comprehensibility of European culture and religion. In the same regard, some

authors have discussed the intervention of the United States in Afghanistan and

Russia in Chechnya in the name of rescuing peace as the endeavour to restore geo-

political and economic interests.84 These are certainly two excellent examples of

rule by absentee colonialism.

Sovereignty in the true sense meant the absolute empowerment of the

state. But the cultural difference between the others85 and the selves was

used by colonisers to construct a sovereign rather antithetical to the original

conceptualisation of sovereignty by Hobbes and Austin. The Asian and African

sovereign was alienable and subjugatable. The European colonial minds used

the cultural constructions to reinvent positivism in international law and tailored

the definition of sovereignty that fitted their imperialist designs and promoted

colonial subordination. Therefore, traditional international law has been notorious

for the ease with which it sanctioned violence against non-Western masses.86 The

tool of cultural comparison was highly effective in creating a hierarchy of cultural

and political existence in a world that is home to people of various races and

religions. The industrial revolution and scientific development of Europe was

effectively used to dominate and discriminate against other civilisations. The

political and cultural by-product of imperialism discarded the other histories of

international law prevalent in Oriental civilisations.

C. Addressing the Question of Other Culture and the Justice Deficient of

Positivistic Sovereigns

The cultural comparison, I would suggest, was used as the most effective tool for

establishing the superiority of the existence and promotion of colonisation:

[p]ositivism legitimised conquest and dispossession . . . identifying

how notions of positivism and sovereignty were shaped by the

encounter . . . [the] universalisation of the European experience,

which is achieved by transmuting it into the major theoretical problem

though China along with Japan and Korea are known for their abhorrence to litigation. An Asianscholar from Japan has invented a term called aggressive Legalism to portray the growingculture of participation in litigation. See, S. Pekkanan, Aggressive Legalism: The Rules of theWTO and Japans Emerging Trade Strategy, 24(5) The World Economy (2001) 707737. The

debate was later followed by a Chinese Scholar; H. Gao, Aggressive Legalism: The East AsianExperience and Lessons for China in H. Gao and D. Lewis (eds.) Chinas Participation in WTO,Camaron May (2003). Though, aggressive Legalism only talks about the increased legalism withWTODSB, it is nonetheless remarkable, as these nations have covered a long journey in terms ofbuilding a legal culture, more appreciable in European and American terms.

84 S. Byrne et al Russias Chechnya and Americas Afghanistan: Geo Political Interests in theCaspian Region and International Humanitarian law, 18 Sri Lanka Journal of International Law

(2006) 41.

85 See, T. Ruskola, Legal Orientalism, 101(1) Michigan Law Review (2003) 179234, at 182.

86 Rajagopal, supra note 66 at 11; see G. Kreijen (ed.) State, Sovereignty, and InternationalGovernance, Oxford University Press (2002).


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74 Prabhakar Singh

of discipline, [had] the effect of suppressing and subordinating other

histories of international law and the people to whom it has applied. 87

The resurrection of positivism in international law legitimised the denial of

political self-determination to the colonised native sovereign: like the racial

inferiority, the sovereign constituting of inferior races, was made to hierarchies

below the white European sovereignty. Just to show, as an example, how

positivism in international law functioned in the early 20th century, Amos Hershey

wrote in the American Journal of International Law in 1911:

The succession may be called Universal in case of total absorption,

whether through voluntary agreement, forcible annexation or

subjugation, division of a state into several international persons, or

union of a several states into single international person . . . in case

of total extinction and absorption or incorporation, the authorities are

generally agreed that the annexing or absorbing state succeeds in the

main to the rights and obligations of the extinguished state.88

The recognition of such rights of conquest is completely contrary to the very

principle of law as it legitimises outcomes dictated by power rather than legal

principles. The concept of legality in colonialism was put to use in such a way

that it had to stand upside down. Morgenthau also advocates for a science of

international law89 as even the laymen have been able to locate the gap between

the practice and theory of international law. However, as argued elsewhere,

[w]hen asked, which is more primal between morality and legality.

To say legality precedes morality would be preposterous. Legalityis the product of artificial inventions of systems to regulate the life

of man, which lacked politics . . . therefore politics and legality

are time twins . . . assigning wide powers to the government can

only be judged from the touchstone of welfare and as soon as

welfare comes into picture . . . morality and not legality is the

measuring rod . . . it brings out the inherent incapacity of legality

to measure welfare . . . rather legality was the tool later used by

the . . . contractual sovereign . . . to cover up their misdeeds by trying

to replace morality by legality.90

Naturally, as can be derived from the last line of the above quotation, it was the

positivistic interpretation of international law that promoted Nazism in Germany

and Fascism in Italy.91 Sovereignty was not a function of higher morality as

87 Ibid at 7.

88 A. Hershey, Succession of States, 5(2) American Journal of International Law (1911) 285297.

89 H. Morgenthau, Positivism, Functionalism, and International Law, 34(2) American Journal of International Law (1940) 26084.

90 P. Singh, supra note 38 at 42; J. Shen, The Relativity and Historical Perspective of the GoldenAge of International Law, 6(1) International Legal Theory (2000) 1534.

91 Lon Fuller, by his writings in 1940 accused positivism of the chief reason behind the rise ofFacism in Europe. See, L. Fuller, The Law In Quest of Itself, Foundation Press (1940). Also,


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propounded by natural international law scholars in an attempt to assimilate the

natural law and positive law in international law debate rather there never was

a case of overarching natural law with a high dose of morals that could bind and

guide the state. The sovereign was the highest authority to decide what was wrong

and what was right it could not be questioned by anyone. 92

D. The Soviet Nature of Sovereignty and State

In this article, wherever the term the European sovereign is used, it excludes

the Soviet conceptions of state and sovereign. Mintauts Chakste, former justice

of Supreme Court of Latvia elaborates the point of departure in settling most

questions that concern the international relations93 . . . Soviet theory has developed

a concept of state of its own which substantially differs from the traditional

ones . . . [t]his theory considers international law as being a form for realization of

collaboration among peoples.94 The Soviet concept of sovereignty is important

to discuss since, in form and political approach, it is more natural than positivistic

as compared to other European notions of sovereignty.95 It has been defined as the

legal and actual form of the states in carrying out its functions, and its economic

independence as the basis of real independence is particularly stressed. 96

According to Prof. Korovin,97 Colonel of Justice and lecturer on international

law in the Red Army, the force and importance of the Soviet international law

A. Sebok, Legal Positivism in American Jurisprudence, Cambridge University Press (1998) at21, 22. Hyek argued that the command theory of law at the centre of positivism legitimised theremoval of all constraints on the state and dismissed the idea of the rule of law as a metaphysical

superstition; positivists prepared the way for Fascism and Communism. See, F. Hayek, TheConstitution of Liberty, University of Chicago Press (1960). But communism as a social andpolitical construct seeks to dissolve the legal fiction of sovereignty as it seeks to attain the ruleby people and not a positivistic sovereign. See, J. Pribn, Dissidents of Law, Ashgate, (2002)at 88, 89. Therefore on these grounds, the American accusation on positivism for developmentof communism needs to be examined cautiously. For a debate on Lon Fullers critique of legalpositivism see B. Bix, Natural Law: The Modern Tradition in J. Coleman and S. Shapira (eds.)The Oxford Handbook of Jurisprudence and Philosophy of Law , Oxford University Press (2004).

92 There has been a whole series of debates on the natural and positive laws of various Europeanand American jurisdictions in the American Natural Law Forum. Some of them are: R. PoundNatural natural Law and Positive natural Law 5 Natural Law Forum (1960) 70, G. Dietze,Natural Law in the Modern European Constitutions, 1 Natural Law Forum (1956) at 73, L.Jacques Suggestions for Clarifying Natural Law, 2 Natural Law Forum (1957) at 66.

93 M. Chakste, Soviet Concept of state, International Law and Sovereignty, 43(1) American Journal of International Law (1949) 21; After the formation of European Union by the Treatyof Maastricht, there is a debate in Europe about post sovereignty. See, N. MacCormik,

Questioning Sovereignty: Law State and Practical Reason , Oxford University Press, (1999). Thisbook outlines the important debate on post sovereignty, devolution and nationalism in Britainand Europe. It enquires into the question of Rechtsstaat or rule by law.

94 Ibid at 29.

95 K. R. Plawker, The Soviet Contradiction: Socialist Federalism and the Freedom of Secession,9(2) Wisconsin Journal of International Law (1991) at 169.

96 J. Quigley, The Soviet New Thinking in International Law: An Opening to End The ColdWar?, 8 (1) Wisconsin International Law Journal (1989) at 97.

97 E. A. Korovin, The Second World War and International Law, 40(4) American Journal of International Law (1946) 74255; For a detailed study of all the aspects of jurisprudence seeW. Morrison, Jurisprudence: From Greeks to Post Modernism, Cavendish Publication (2005),


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76 Prabhakar Singh

practice lies in that both as a whole and in each individual step it is not a tactical

manoeuvre or a tribute to a transient situation but follows from the very basic and

nature of the Soviet state as an advanced state, as a truly peoples democratic state,

a fraternal union of free man and free peoples . . . Precisely because of this the

Soviet state can take the lofty task of politically educating its people in the spirit

of defending the interest of peace, in the spirit of establishing firm friendship and

effective collaboration among the people.98 Some contemporary writers have also

come up with the reconstruction of international law with Scandinavian Realism

of Alf Ross.99 Thus the Soviet conceptions of state and sovereignty were anti-

colonial and talked more in terms of cooperation between states. Such conceptions

of state and sovereignty that do not believe in the power and cultural hierarchy of

states are germane to a just world order.

A universal application of natural law would not differentiate between civilized

and uncivilized. Such an international law would not appreciate the cultural

differences and thereby natural law was unable to carry on the emerging European

agenda of colonisation. Gradually, the positivistic interventions were sought

in international law and the morality content, an integral part of natural law

scholarship, was operated out of the body of international law.

The commercial intercourse, which was the primary excuse for the

interaction between European and non-European states, had actually led to the

imposition of European sovereignty over the so-called uncivilised non-Europeans.

Positivistic sovereignty was used to legitimise the colonization process. Therefore,

colonialism was the process by which Asian and African Societies were made to

comply with European standards as the price of membership into the family of

nations.100

E. Narcissistic International Law Positivism and the Exclusion of Others

The uncivilised non-European states were excluded from the narcissistic and

positivistic construction of international law, like morality and universality were

excluded in the determined province of laws properly called. I choose the term

narcissistic because the 20th century positivism of international law scholarship

declared itself superior to all that was non-European. The others had no case

for equality of treatment. The Western proclamation of cultural superiority was

reflected in the changing nature of international law and sovereignty by donating

also R. Wacks, Understanding Jurisprudence: A Introduction to Legal Theory, Oxford UniversityPress (2005).

98 Ibid.

99 A. Escorihuela, Alf Ross: Towards a realist critique and reconstruction of International law,14(4) European Journal of International law (2003) 70366.

100 Anghie, supra note 81 67, also see, R. Gordon, Saving Failed States: Sometimes ANeocolonialist Notion, 12(6) American University Journal of International Law & Policy(1997)at 903; G. de Burca and O. Gerstenberg, Comparative Visions of Global Public Order (Part 2):The Denationalization of Constitutional Law, 47(1) Harvard International Law Journal (1995)243262.


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a false universality to the Western notion of the sovereign. International law

was the creation of a unique, prudent and civilised society of the West and

therefore those who were uncivilised never actually had a claim for a sovereign

in positivistic terms. They could not claim the equality of treatment alongside the

European sovereign.

This logic of positivism in determining the province of international law was

good enough to justify interference in the uncivilised world and therefore the

cultural imposition. It was at this point that racialism became an important

factor in the construction of positivistic international law. The positivists like

Westlake,101 promoted the agenda of positivism by making the society instead

of the sovereign, the springboard of debate. The existence of natural law, which

could be applied universally and thus non cognitive of civilization barrier,

was shot down, to promote a kind of international law that could justify

colonialism. Therefore, the epistemology of positive international law radicalised

the divide of the East and the West on sharp cultural lines.102

The violence of positivist language in relation to non-European

peoples is hard to overlook. Positivists developed an elaborate voc-

abulary for denigrating these peoples, presenting them as suitable

objects for conquest, and legitimising the most extreme violence

against them, all in the furtherance of the civilizing mission the

discharge of white mans burden.103

In the positivistic construction, the society soon became the central moot point.

The society and not the sovereign could be the determining factor: whether the

Asian and African countries could be treated as part of the international societyof states.104 Rather a race of savage people, that looked ugly mostly because of

darker skin, and acted ugly, quite obviously could not be made part of a white

sovereign campaign. This narcissistic positivism of international law where

Europe only appreciated the Europeans was the leading force for colonisation,

with the effective help of technology in terms of arms and battle skills. In this

concept of narcissistic positivism, only that belonging to Europe was adored, all

101 J. Westlake, supra note 15 at 63.

102 See, A. Anghie, Imperialism, Sovereignty and the Making of International Law, CambridgeUniversity Press (2005) at 67, 68; also see, C. Miville, Between Equal Rights: A Marxist Theoryof international law, Brill Academic Publishers (2005) 241; W. Menski, Comparative Law in aGlobal Context: The Legal Systems of Asia and Africa, Cambridge University Press (2006) at

445. The notso recent text deliberating the Grotius international lawis, P. P. Remec, The Positionof the Individual in International Law According to Grotius and Vattel, M. Nijhoff (1960).

103 Anghie, supra note 81 at 7; also see M. Sornarajah, Power and Justice: Third World Resistancein International Law, 10 Singapore Yearbook of International Law (2006) 1957.

104 Angie cites the example of tribal people and aboriginals as non-existent in international law. Thisaccording to him was because the tribal society was almost value-less and uncivilised. See Supra

Note 81 at 26, see the works of Anand for a developing country perspective; R. P. Anand, NewStates and International law, Vikas Publishing (1972); R. P. Anand, International Law and the

Developing Countries: Confrontation Or Cooperation?, Martinus Nijhoff (1987) at 72; also see,C. Oguamanam, Indigenous Peoples and International Law: The Making of a Regime, (2004)30(1) Queens Law Journal 348399.


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78 Prabhakar Singh

that pertained to the other culture was discarded. Although this is one area which

has inspired fierce decade in the recent past, the question of the return of cultural

objects is not a new one.105

VI. CONCLUSION

It is remarkable to note that, after the composition of the ICJ was changed

by inducting non-European judges, the Court started respecting the natural law

aspect of international law as is evident from its judgements and advisory

opinions, particularly those delivered by third world judges. The later cases, in

which the ICJ gave an advisory opinion or decided, reflected an acceptance and

application of international law that was not entirely Western. The ancient tenetsof international law, offered by Hinduism, Buddhism and Islam brought into light

by scholarly works from Asian and African thinkers enriched and supplemented

an otherwise Western Construct. The international legal community has come

a long way in appreciating the other in international law from what Henry

Wheaton once thought about the non European nations: the ordinary jus

gentium . . . is applicable to a distinct set or family of nations106 . . . international

law of civilized Christian nations of Europe and America is one thing; and that

governs intercourse of the Mohammedan nations of the East with each other and

with Christians is another and very different thing.107

Other English authors like Travers Twiss have also written on the international

relation of the Mohammedan world.108 He talks about the identical nature of law

of the rude and civilised nations109 and the growth of the positive law of nations.110

The studies in international law in those times are replete with racial vocabulary

of distinction of Western and Eastern States. The terminologies used to identify

the states are civilised and savage societies.111 The issue of such a construct is

105 S. Pahuja, The Postcoloniality of International law, (2005) 46(2)Harvard Journal InternationalLaw 459470; A. F. Vrdoljak, International Law, Museums and the Return of Cultural Objects,Cambridge University Press (2006) at 47; This important book explores the removal and thereturn of cultural objects from occupied communities fromthe nineteenth century to the twentiethcentury and explores the concurrent evolution of international cultural heritage law. Examiningthe responses of governments and of museums to the question of restitution, this book is essentialreading for archaeologists, international lawyers and all those involved in cultural resourcemanagement. Also see, P. Hanafin, A. Gearey, J. Brooker, Law and Literature, Blackwell

Publishing (2004) at 81, K. Knop, Diversity and Self-Determination in International Law,Cambridge University Press (2002).

106 Wheaton, supra note 1 at 44.

107 Ibid at 47; see G. Abi-Saab, International Law and the International Community: The LongRoad to Universality, in R. St John MacDonald (ed.) Essays in Honor of Wang Tieya, MartinusNijhoff (1994).

108 T. Sir Twiss, The Law of Nations Considered as Independent Political Communities: On theRight and Duties of Nations on the time of Peace, University Press Oxford (1861) at 82.

109 Ibid at 119.

110 Ibid at 120.

111 Ibid at 120.


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based upon the fact of knowledge production,112 i.e. which knowledge is superior:

Eastern or Western. For me, knowledge is a cultural construction and therefore

the knowledge of a particular culture can best solve the disputes of that particular

culture.113 The Wretched of the Earth, however, found an echo of their voice in

the third quarter of the 20th century, when scholarly works of the French author

Frantz Fanon114 sociologically analysed the colonial society and imperialism.

Justice Christopher Gregory Weeramantry, former Vice President of the ICJ,

has particularly discussed the influence which the new scholarship from the non-

Western world, of which he himself is a part, had on the construction of modern

international law.115 Edward Said, nonetheless, remains the most influential writer

in the sociological inquiry of imperialism and culture, whose book Orientalism

has been the most acclaimed postcolonial work on this issue.116

Justice Weeramantry has been an important figure in the development of

international law as a Global Construct. He refers to an Arabic Jurist, Shaybani

Muhammad ibn al-Hasan, whose writings were known to Christian Europe. From

thereon, he declares international law as a global construct rather than a Western

construct. Going to the specificity of the context of such an international law, he

highlights the examples from Buddhism and Hinduism.117 Tripitaka or teachings

of Buddha mention various kinds of violence economic violence, psychological

violence, institutional violence, political violence, and defensive violence.118 In

an advisory opinion sought by the General Assembly on the Legality of Nuclear

Weapons, Justice Weeramantry cited the specific teachings from Hinduism, about

prohibition of hyper destructive weapons.119 Pointing to the cultural and equity

112 G. J. Sefa Dei and A. Kempf, Anti-Colonialism and Education, Sense Publishers (2006). Thisstudy provides salient vantage about education as an anti-colonial project and offers powerfulinsights into the politics of colonialism and anti-colonialism as they are contested in educationand society.

113 For a debate on knowledge economies see, P. Wignaraja, Pro-poor Growth and Governance inSouth Asia, Sage Publications (2004).

114 See, C. Farrington (trans), The Wretched of the Earth by Frantz Fanon, Grove Press (1964) at206.

115 C. Weeramantry (ed.) Some Buddhist Perspectives on International Law in Boutrous Boutrous-Ghali

narcissistic positive to natural universal international law: dialectics of absentee colonialism

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