The Dark side of International Law

By Caitlin Biddolph, Australian student of International Relations and Conflict Studies.

International law, when observed through a post-colonial lens, is a manifestation of the imperialist ventures of the Western world, which continues to be reflected in contemporary international relations. The statement “while international law began as a Western concept that operated to reinforce Western power globally, it has adapted to accommodate the interests of smaller countries”, thus becomes inherently problematic. International law has to some extent allowed for the interests of smaller nations and peoples, however it has predominantly continued the legacy of colonialism. Through exploring the origins and foundations of international law we can analyse the resonance of imperialism in current international legal interactions.

We must also examine decolonisation in order to critically discuss the role of international law as providing for the interests of smaller countries. This argument will be supported by the proliferation of treaty law related to self-determination within the international legal regime.

However, it is the central argument of this analysis that Western states have persistently benefited from the rule of international law by perpetuating the colonial legacy in contemporary global relations. A case study of the United States (US) as a hegemonic power will serve to illustrate how international law is a Western concept, that not only situates powerful states at the top of the global order, but also systematically undermines the identity and agency of smaller nations and peoples. This notion can be effectively understood through an assessment of the Middle East or Arabic world as the ‘underclass of the international legal order’ as argued by Jean Allain (2004). International relations in Palestine, Iraq and Afghanistan reflect the use of international law by Western states to enhance their own agenda by situating the highly racialized identity of Arabic countries within the mould of a colonial framework. These cases will emphasise the role of international law as a tool of power harnessed by the West to further its interests, while simultaneously eroding those of smaller entities.

Before analysing the origins of international law, it must be recognised that in understanding the European foundations of international law (Allain, 2004:394), we are referring to the institutional processes and methods by which international law was formalised. International law is not inherently Western, but encompasses a diversity of cultures and perceptions which extend far beyond the Atlantic. As such, other ‘non-Western states’ (Anghie, 2005:200) had already erected legal establishments before the imposition of European legal regimes. These local forms of law promoted certain norms by which the rule of law applied (Anghie, 2005:200). Whilst this particular argument can be supported with further evidence, the ownership of legal regimes is not within the scope of this analysis.

International law as a formalised doctrine can be situated in the European continent, and was, to a large extent, established within the period of colonisation. For example, in the 15^th and 16^th century, treaties were adopted in Spain pertaining to the relationship between the coloniser and the colonised natives. Furthermore, as time progressed, figures such as Jean Bodin and Hugo Grotius became notable for developing international law throughout Europe. That international law began as a Western concept cannot be refuted (Sharma, 2006:3, Jouannet, 2007:380). Jouannet (2007) supports the analysis that international law and human rights as norms of behaviour ‘transcend…cultural or sociological divisions’ (Jouannet, 2007:382), but that its formal creation as a tradition is deeply embedded within Western thought (Jouannet, 2007:382).

The question remains as to how we can reconcile the notion that modern international law began as a Western concept and continues to be a Western concept if the norms and values that it adheres to, such as human rights and justice, can be found within varying cultures. What makes international law inherently bound within the Western world is the process of colonisation and imperialism spanning the late modern era. Fundamental to any post-colonial critique is a reassessment of the continuing impact of European expansionism upon existing cultural bodies of knowledge. Not only was the colonial period a conquest of territory and people by the European powers (and later including American forces), it also represented the imposition of European cultural, economic and legal regimes upon already existing frameworks (Jouannet, 2007:382).

The foundations of international law were contoured by the colonial ventures of European states, which sought to impose Western norms on non-Western peoples, whose ideas may or may not have differed from their colonisers, but nevertheless reinforced ideas about sovereignty and who has a right to attain it. Thus when Allain (2004) speaks of ‘the great divide to emerge in international law between ‘civilised nations’ and ‘backward territories’’ (Allain, 2004:392), we must critically assess the ongoing resonance of this Orientalist ideology within contemporary understandings and practices of international law. The Western imperative that imposed international law onto non-European peoples served to indoctrinate, moralise and normalise the notion of Western superiority and savagery of the Other (Allain, 2004:393). Thus, international law was formed to regulate and enforce this hierarchical, exclusionary relationship (Pahuja, 2005:462).

The colonial paradigm institutionalised racism within international law (e.g. the Doctrine of Discovery), a ‘racialized logic’ (Knox, 2013:116) which served to preserve the identities of actors within international society – of ‘saviour’ European states who need to ‘civilise’ and protect the ‘victim’ Other from itself – ‘savages’ (Knox, 2013:116). The racialized victim is savage and inherently ‘non-white’ (Matua in Knox, 2013:116). This racial dimension which situates the Other as inferior to European/Western society therefore becomes enshrined in the bodies of law and policy making.

The discourse of the Bush Administration after the 9/11 terrorist attacks is evidence of this. The idea that the women of Afghanistan needed to be saved from their men reinforced the notion that the international legal regime could be perverted by the US to justify intervention (Abu-Lughod, 2002). This racialized logic was also present during the use of torture at Abu Graib, which illustrated that as superpower in world politics, the US could operate above the law. As An-Na’im (2006) and Jouannet (2007) argue, the colonial mindset legitimated practices of violence and conquest of Asia and Africa (An-Na’im, 2006:787, Jouannet, 2007:382). In this sense, it was for the European states to impose statehood and establish its principles, in order to civilise the ‘“inferior races”’ (Hornung in Jouannet, 2007: 383). International law began as a Western concept, expanded to include smaller countries in order to exclude them from full participation in global affairs, and thus formalised Orientalist accounts of international relations within a system of international law.

However, it must be acknowledged that international law in contemporary global relations attempts to rectify its imperialist foundations. Decolonisation, in serving to empower smaller nations in the international legal system, has challenged the exclusivity of traditional international law to encompass a much broader range of countries (Anghie, 2005:196). Moreover, international law has not only adapted to accommodate the interests of colonised peoples in self-determination, but has simultaneously transformed the principles of international law to allow for non-discrimination, sovereign equality (Pahuja, 2005:462), and ‘territorial integrity’ (Jouannet, 2007:385) among all states, both European and non-European.  This shift in the politics of international law, a consequence of the creation of the United Nations in 1945, marked the codification of self-determination within legal doctrines and regimes.

Article 1(2) of this document underscores the importance ‘to develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples’ (UN Charter, Art. 1(2)). Thus, international law could be ‘appropriated… and used as a force for liberation’ (Pahuja, 2005:460) for the previously disempowered nations. The inclusion of self-determination in international law allowed nations such as Kosovo to declare independence. Thus, the United Nations (UN) Charter institutionalised the right to self-determination for ‘all the peoples of the world’ (An-Na’im, 2006:787), effectively codifying the process of decolonisation within the international legal framework. The legality of self-determination meant that international law could attain universal applicability. The formalisation of self-determination within the international system is also reflected through the International Covenant on Civil and Political Rights, wherein the imperative of smaller countries to enforce this doctrine universally allowed their interests to be accommodated over the lingering colonial attitudes of Western states (Sharma, 2006:251).

In practice, the decolonisation process within international law has fortuitously favoured nations of ‘Africa, Asia and the Caribbean’ by establishing their peoples into ‘dozens of independent states’ (Austin, 1982:203). The African state of Namibia is an example of the UN applying these newly indoctrinated principles of international law in order to enforce the principles of self-determination and sovereign equality. Namibia was a German colony which eventually came under the authority of South Africa. The UN Mandate system of 1919 transformed the colony into a trusteeship of South Africa, and in 1966 the UN General Assembly passed Resolution 2145 which initiated the nation’s independence (Austin, 1982:204).

While many formalised processes of decolonisation and self-determination succeeded in this respect, the resonating effects of colonisation continue to permeate the field of global politics and the dynamics of international law. There have been recent attempts to bridge the disparities between the reality of Third World inequalities and the codification of self-determination rights (Pahuja, 2005:469), but it is extremely problematic that international law ‘still legitimates imbalances of power and wealth in favour of a small number of inevitably hegemonic actors’ (Jouannet, 2007:407).

An example of this is the International Monetary Fund’s (IMF) structural adjustment programmes (SAPs). To clarify, as an independent organisation, the IMF was created in the context of international law. It was established at a UN conference at Bretton Woods, New Hampshire, and has continued to influence the global economy. The IMF’s SAPs are ‘expanding poverty’ in countries such as Ghana and Cote d’Ivoire and therefore leaving them behind in the global economy (Ismi, 2004:5). Thus, the legacy of colonisation and the institutionalisation of violence has continued to affect countries (Pahuja, 2005:463) such as Namibia, despite the codified implementation of sovereign equality and empowerment.

This inherent tendency within international law to further the interests of states possessing power (Anghie, 2005:198) by degrading the rights of smaller countries (Anghie, 2005:201) is a continued manifestation of European imperialism. International law will continue to serve the interests of Western countries as they are the most powerful within international relations (Pahuja, 2005:459). A case study of the US as a hegemonic Western power and its relationship with the Middle East serves to illustrate this trend. Today the US seeks to civilise ‘non-civilised nations’ (Jouannet, 2007:390) through processes of ‘democratization’ (Jouannet, 2007:391) which is performed through the use of force, justified under Article 42 of the UN Charter (Jouannet, 2007:392, Gathii in Okafor, 2005:4).

As such, the imperialist mindset continues to undermine attempts at enforcing an equally beneficial rule of law through the ongoing racialization of identities. The US exploits international law to enrich itself and havoc the Middle East (Hagopian, 2004:194, Quigley, 2002:834). This is exemplified through the Palestinian and Israeli conflicts, wherein the Palestinian, Arab identity serves as the Other of international law. The Arab identity, racialized and subjugated, is alienated to further the interests of Western states (Hagopian, 2006). In relation to the Palestinian case, imperialism continues to be a reality. ‘The rights of the Arab people of Palestine were being encroached upon’ (Pogany, 1987:370) in order to assist a US-endorsed Israeli occupation of the Palestinian territory (Quigley, 2002:819).

The US support for the Israeli cause has ensured that Palestine will not reach self-determination in the near future (Drew, 1997:144). However, it must be noted that a growing European recognition of Palestine is shifting the dynamics of this conflict. Nevertheless, according to international law, Israel is unlawfully violating the liberty of Palestinians, which has functioned to further the interests of American-endorsed Israelis at the cost of the Palestinian population who face displacement and suppression as a result of this ‘belligerent occupation’ (Drew, 1997:146,147). This case illustrates the ways in which powerful countries can operate above the law. Whilst Israel violates international law through its illegal occupation, the US veto power at the United Nations Security Council (UNSC) means that meaningful action against Israel will not be taken. Therefore, international law reinforces a colonial mindset by allowing Israel to systematically violate it.

A case study of American involvement in Iraq and Afghanistan is also relevant in assessing the continuing implications of colonialism in perpetuating the Western conceptions of international law. The “War on Terror” doctrine adopted by the US has served to not only influence its hegemony within international law, but also reinvigorates the imperialist ideology of the colonial period. The 2003 invasion of Iraq is tellingly termed by An-Na’im (2006) as ‘colonisation’ (An-Na’im, 2006:789). Whilst this invasion was later proven to be illegitimate, it is important to highlight how the US justified its actions through international law by invoking the principle of self-defence. The racial implications of this “War on Terror” meant that the terrorist identity was inherently ‘non-white’, Arab, and Muslim, and also located terrorism within the Middle East (Natarajan, 2007:415).

The ‘rogue’  identity of Middle Eastern states such as Iraq and Afghanistan was established so as to create a new ‘civilising mission’ for the West to undertake: that of subduing an erratic Middle Eastern terrorist agenda (Anghie, 2005:279). Anghie (2005) makes a persuasive argument of the US’s neo-colonial motives, stating that its quest for global democracy not only serves to perpetuate the ‘saviour’ identity of the West, but ‘creates law-abiding societies’ that would be controlled by the Western conception of international law (Anghie, 2005:277). The effects of this inherently racialized and neo-imperialist dimension of international law has resulted in the degradation of smaller countries’ right to have their interests fulfilled. For Iraq, the legacy of colonisation and forced border creations has resulted in the ongoing conflict and political instability in the region (Natarajan, 2007:418). The Middle East continues to face these insecurities as a direct outcome of Western involvement. A consequence of the US engagement in Iraq is that its sanctions regime against the state has contributed to countless civilian deaths (Quigley, 2002:825).

Having analysed Western involvement in the Middle East, we can identify a continuation of colonialism’s detrimental legacy upon smaller countries. Furthermore, the formalised subjugation of racial identities has informed much of the action taken by Western states in the current political environment against non-Western states. But international law to some extent can be attributed to accommodating the interests of smaller countries, through legalising and attempting to enforce processes of decolonisation and self-determination. But the primary argument of this analysis is that while international law began as a Western concept which served to reinforce Western power globally, it has continued to demarcate the boundaries between the West and the Other, and thus fulfills the interests of these hegemonies. In adopting a post-colonial approach, ‘the ‘dark side’ of international law’ (Natarajan, 2007:417) can be broached and re-examined in order to transform contemporary understandings of international dynamics.

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