Imperialism, Sovereignty and the Making of International Law (Cambridge Studies in International and Comparative Law) by Anghie Antony

Author:Anghie, Antony [Anghie, Antony]
Language: eng
Format: epub
Publisher: Cambridge University Press
Published: 2005-02-02T16:00:00+00:00

4 Sovereignty and the post-colonial state

Introduction

The whole attitude of the ‘new’ countries could be summarized in the liquidation of imperialism in its widest meaning, with all its political, military, economic and psychological implications. 1

For the newly independent states, sovereignty is the hard won prize of their long struggle for emancipation. It is the legal epitome of the fact that they are masters in their own house. 2

The great task initially begun by the Mandate System was to be continued by the United Nations, which made the issue of decolonization one of its central concerns. The doctrine of self-determination, that had been developed in the inter-war period principally in relation to the peoples of eastern Europe, was now adopted and adapted by the United Nations to further and manage the transformation of colonial territories into independent, sovereign states. Virtually every facet of the UN system participated in this project: the provisions in the UN Charter that dealt with non-self-governing and trusteeship territories, the famous General Assembly Resolutions articulating the right to self-determination and the opinions of the International Court of Justice (ICJ) in Western Sahara and Namibia, all addressed this question. The modern doctrine of self-determination, then, was formulated in response to the whole phenomenon of colonialism.

Decolonization supported the powerful claim that international law had finally become, for the first time, truly universal. By the end of the nineteenth century the international law which originated in Europe became universally applicable as a consequence of colonial expansion. With the emergence of the sovereign states of Africa and Asia, however, international law became ‘universal’ in the more profound sense that Asian and African societies that had been excluded from the realm of sovereignty even while being subjected to the operation of international law, could now participate in that system as equal and sovereign states. Thus a true ‘community of states’ had finally come into being. 3 Within this system of international law, all societies could develop and act according to their own cultural traditions provided that theyadhered to the minimal rules essential for the maintenance of international peace. 4

These revolutionary developments did not, however, resolve colonial problems. Instead, the enduring consequences of colonialism became a central and inescapable issue for the discipline, rather than a peripheral concern, as the emergence of these ‘new states’, as they were termed in the literature of the period, posed major questions to international law at both the theoretical and doctrinal levels. Was international law indeed universal? Given that international law was inherently European, how could it accommodate the new states which belonged to very different cultural traditions? What adjustments, if any, did international law have to make in order to address the concerns of Third World states? These questions were addressed by prominent Western and non-Western jurists of the period, including Friedmann and Elias, Jenks, Roling and Anand, Fatouros, Abi-Saab and Castenada, McDougal and Falk.

International law had served the interests of the powerful Western states. 5 Inevitably, then, the new states would seek to regain control over

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