School of Law Rights and Constitutional Governance

TATA ISTITUTE OF SOCIAL SCIENCES

Deonar, Mumbai- 400088

Assignment Submission

Name

: Damudor Arambam

Enrollment No.

: M2014ATJ007

Programme Name

: Master of Law in Access to Justice

Course Title

: Comparative Public Law

Course Code

: FC- 2

Semester

: 1st Semester,

Assignment Title

: A crtical review of the book Imperialism, Sovereignty

and the Making of International Law

Due Date

: ....October, 2014

Year: 2014-15

Submitted on : 7th October , 2014

Signature of the Student:

Course Teacher : Dr. Monica Sakhrani
Grade Assigned :
Signature of Teacher:

A Critical Review of the Book Imperialism, Sovereignty and the

Making of International Law
Introduction
In Imperialism, Sovereignty and the Making of International Law, Antony Anghie presents
what he calls an alternative history of sovereignty. Anghie argues that the colonial confrontation
between European and non-European societies was central to the formation of international law and
its most important and founding doctrine, sovereignty. Anghies argument is that colonialism and
imperialism which he uses essentially interchangeably are central to the way that the doctrine of
sovereignty has been constituted. Further, that such imperialism remains embedded,
unacknowledged, within its constitution has led international law into a cycle of renewing and
repeating the dynamic of colonial relationships. Anghies argument is centred around two main
propositions. First, he posits that the rhetoric of the civilizing missionthe distinction between
the civilized and the uncivilizedis repeated in contemporary international discourse through
categories such as the developed and the developing and, particularly in the context of the
modern war against terror, the civilized and the barbaric. Sovereignty, Anghie argues, has
always rested with the civilized and developed, to the exclusion of the uncivilized and
developing. The civilized is the universal standard against which the uncivilized is compared.
This, in turn,creates a dynamic of difference Anghies second propositionwhich he defines as
the process of establishing the gap between two cultures and then seeking to bridge the gap by
developing techniques to normalize the aberrant society
In developing the above arguments, Anghie examines different phases of the colonial encounter,
ranging from the sixteenth century to the League of Nations period and the current 'war on terror'.
Francisco de Vitoria and the colonial origins of international law.
In chapter 1, Anghie examines the encounter between the Spanish and the American Indians as
described, explained and justified in the work of 16th century jurist and theologian, Francisco de
Vitoria. The problem for Vitoria, Anghie argues, was not one of order among states, but the issue of
creating a system of law that can deal with relationships between societies which he understood to
belong to different cultural orders. This is Anghies dynamic of difference at the very beginning
of the discipline of international law. Vitoria, Anghie argues, laid the foundation for the dynamic of
difference through the significance he attached to the cultural differences between the Spanish and
the Indians. For Vitoria, while the Indians were capable of being bound by the law of nations
because of their capacity for reason, they were not actually capable of possessing sovereignty
because of their barbaric cultural practices, which were contrary to the norms of the universal law
of nations. The Spanish were therefore justified on waging war where necessary. Importantly, for
Vitoria, only sovereigns had the power to wage war and only Christians could engage in a justwar.

Finding the peripheries : colonialism in nineteenth-century international law.

In chapter 2, Anghie studied period in the 19th century, when positivism replaced naturalism as the
main philosophy of international law. Positivism maintains that states are the main actors of
international law and they are bound only by that to which they have consented. Then, customary
international law and treaties replaced natural law as the main source of modern international law.
At this time, Anghie argues that positivists used their new vocabulary of sovereign consent and
recognition to exclude the non-European world as 'backward' and 'uncivilized' and to elaborate a
legal framework that justified colonization as a means of accomplishing the civilizing mission.
Anghie argues that positivism enabled the entrenchment of the distinction between the civilized
and the non-civilized because of its rigid dichotomy between advanced and backward systems
of law. This view effectively denied legitimacy, and sovereignty, to backward systems and
assumed that the latter systems could only progress by becoming more like the advanced systems.

Colonialism and the birth of international institutions : the mandate system of the League of
Nations.
The chapter 3 covers the period after World War I, when a shift from positivism to pragmatism
occurred at the same time as the emergence of the first major international institution, the League of
Nations, and its Mandate System, which attempted to transform colonial territories into sovereign
states. At that point, Anghie recounts that the new international law then embarked on the next stage
of the civilizing process of preparing the non-European states for independence. To that end, the
Mandate System continued the 19th century project of universalizing international law.
Anghies argument is that the Mandate System, along with most international institutions, was
profoundly shaped by colonialism and that an understanding of this history is necessary in order to
fully appreciate the impact of modern international institutions on the Third World. Anghie asserts
two particularly forceful points about the way sovereignty developed under the Mandate System.
First, Anghie emphasizes that even as the Mandate System purported to transfer formal sovereignty
to Third World States, it continued their subordination through new sociological mechanisms. Thus,
Third World statehood became contingent not just on the formal criteria of territory, population and
government, but on the satisfaction of rules and standards in areas such as economic development,
health and mortality rates, and reform of native political institutions. In this, Anghie detects the
beginning of the science of development. Secondly, Anghie views the Mandate System as a
pivotal moment in the constitution of thedynamic of difference. He argues that it was during this
period that international law removed the obvious traces of racism from its discourse and shifted to
more neutral language to describe the problems of the Third World. Thus, people were no longer
civilized and uncivilized, but instead were backward or advancedin economic terms.

Sovereignty and the post-colonial state.

The colonies independence, according to Anghie, did not translate into the real power that the Third
World states had hoped for, because their sovereignty was manufactured by the colonial powers to
serve their own interests. This is why the fourth episode covers the United Nations and the Bretton

Woods institutions: the World Bank and the International Monetary Fund, the contemporary
successors of the Mandate System.
At this time, Anghies dynamic of difference once again acquires a new form: the gap now was not
between the civilized and the uncivilized but between the developed and the developing. In this
context, new techniques were formulated by the Bretton Woods institutions to bridge this
difference. An interesting aspect of Anghies line of argument is the significance of the dynamic of
difference for internal affairs, such as when some minority ethnic groups aspire to be independent
within their own state. Here, Anghie states, the dynamic of difference operates in a way that the
minority is characterized as the primitive that must be managed and controlled in the interests of
preserving the modern and universal state.

Governance and globalization, civilization and commerce.

In the fifth episode, Anghie explores the effects of globalization on Third World sovereignty and the
use of the concept of governance, through international human rights doctrines, in order to manage
developing countries. After the Cold War, globalization became one of the dominant themes and for
developing countries signified the dominance of neo-liberal policies, such as good governance and
the Washington Consensus. In broad terms, Anghie argues that good governance involves the
creation of a government which is democratic, open,accountable and transparent, and which
respects and fosters human rights and the rule of law.
The concept of good governance, according to Anghie, is used as a bridging concept by some
international institutions, such as the World Bank, to articulate a new relationship between human
rights and development. This simply replicates the civilizing mission, now carried out by the
Bretton Woods institutions, who used their enormous power to transform former colonies to satisfy
the interests of the West. Consequently, Anghie highlights that there is an imposition of universal
standards through international human rights which are used as a tool to further governance, and
that [h]uman rights law is revolutionary because it purports to regulate behaviour of a sovereign
within its own territory.

On making war on the terrorist : imperialism as self-defence.

In the last episode, Anghie analyses the current war on terrorism as a new form of imperialism that
brands a fraction of the world, in particular Muslims, as barbarians and as enemies. Anghie argues
that the war on terrorism is set up to manage a new situation, but also creates a new form of
imperialism that relies on a structure of ideas that might be traced back to earlier times.
This new form of imperialism seeks to transform the offending society into a democracy to ensure
that it will pose no future threat. For this purpose, Anghie argues that the other, the terrorist, is
constructed not only in terms of race (19th century) or economics (Mandate System) but in terms of
war, characterized as selfdefence compelled by emerging threats. At this stage, the dynamic of
difference presents itself with the transformation of the other as essential for the defence and
survival of the Western Hemisphere. In this regard, the war on terrorism can be seen as an exercise
of defensive imperialism.

Conclusion
In the end, international law has created both cultural and racial stereotypes by excluding nonEuropean societies because they fell below Western standards. These stereotypes continue to be
present in todays international legal system. International law should take into consideration input
from other areas of knowledge such as economics, sociology, history, anthropology and psychology,
because it could enrich itself enormously from these insights. Likewise, input coming from
developing countries scholars should be taken into account in order to make todays international
law more comprehensive and integrationist. However, this approach is far from being realized.
Anghies thesis is that we still live under imperialism, between Western countries and the Third
World. For that reason, imperialism has a permanent presence in international law using different
vocabulary: naturalism, positivism, pragmatism. Each of these reproduces the basic structure of the
dynamic of difference and the civilizing mission. As mentioned above, from its origins,
international law can be regarded as an instrument of international politics that is constantly used by
the most powerful states to secure their own interests, regardless of the consequences for less
powerful countries.
Nevertheless, even though the current situation is not favourable to developing countries, Anghie
concludes that the Third World should not abandon international law because it now plays a crucial
role in the interpretation of international events, and that if we do not understand the character of
the discipline of international law, then we cannot possibly bring about any change within it.
For these reasons, Imperialism, Sovereignty and the Making of International Law is a very useful
book that presents, in a very clear way, how international law has been forged from its origins as an
instrument to differentiate the Western and Third World countries. For that matter, Anghie presents
us with his very helpful concept of dynamic of difference, which can be found in every episode in
the history of international law. In order to change the current international legal system we must
first understand the interaction between colonialism and international law. From there it might be
possible for the international community as a whole to reform current international law to be more
integrationist, equitable and comprehensive, and finally to create a system of truly international
justice, in which every country is accountable for its actions.
Finally, even though we might agree that international lLaw always maintained a distinction
between colonizers and colonies, developed and developing, we should ask ourselves if,
nevertheless, international law has achieved some success favourable to some developing countries.
What would have happened if international law had been applied equally to all countries.Would
Third World countries have been better off because of it? These are not easy questions, but
developing countries must discover the ways in which international law has been helping their
cause.Then perhaps they can try to expand or replicate this success in other areas of the field.