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22 November 2021

Decolonisation and International Law

In an article for Global Challenges, a research dossier that examines the major issues of the modern world through academic thought, Fuad Zarbiyev,  Associate Professor of International Law, looks at international laws' evolution through the lens of its colonial past. 

After a long period of complicity with colonialism and its agents, international law continues to sustain an unequal distribution of power and resources. Developing countries in particular find themselves subject not only to almost all of the world’s military interventions but also to an investment arbitration regime that is premised on the protection of Western interests.

No discussion of international law’s relation with decolonisation would be fair without a reminder of the international legal order’s shameful complicity in colonialism. Historically, international law made colonisation and various dependent international statuses legally possible. It was in its name that numerous non-European human communities were categorised and treated as inferior, “uncivilised” and incapable of self-government. But international law has also facilitated the accession to independence of a significant number of former colonies, largely contributing to delegitimating overt colonisation and enabling colonies to frame their claims in terms of legally recognised rights such as self-determination or the permanent sovereignty over natural resources.

It would be a mistake, however, to think that international law has redeemed itself from its dark colonial past, even if one were to equate decolonisation with the accession of the former colonies to independence. International law is still largely shaped by the “colonial matrix” (Walter Mignolo), sustains unequal distribution of power and resources and has even kept part of its colonialist vocabulary (“terra nullius”, “civilised nations”, etc.). The adjective “international” acts as a powerful camouflage hiding the colonial overtone of international law, casting it as a site of neutrality and universality – a view from “nowhere” that is not associated with any state in particular. Even a cursory glance at the practical operation of international law shows, however, that the international legal order is, among other things, a continuation of colonialism by other means. Despite international law's supposed neutrality, the developing countries are almost exclusively on the receiving end of "monetary and military interventions" (Anne Orford), international criminal justice exclusively targets developing countries, and the entire edifice of investment arbitration rests on the premise that the legal systems of developing countries do not allow for adequate protection of foreign investments. 

Unmasking such colonial legacies is key to any genuine project of decolonisation. It is necessary, however, to go further and question the complicity of the discipline of international law in the reproduction of coloniality. The myth of the neutrality of international law feeds into the delusion that international legal academics are all driven by cosmopolitan ideals and remain immune to national interests. How such a cynicism can take hold in a discipline in which the freedom of navigation – one of the foundational concepts of the discipline – was articulated in an advice of the Dutch jurist, Hugo Grotius, to the Dutch East India Company to defend the latter’s rights is hard to understand. What is important to realise here is that like most academic disciplines, contemporary international law is a Western discipline primarily shaped by Western international lawyers. It is not a coincidence that many concepts of international law that give Western countries special privileges, such as the theory of the persistent objector, the doctrines of specially affected states, of the “gouvernement international de fait” and of state contracts, were framed by Western scholars. Likewise, the idea that states that attainted independence as a result of decolonisation had no choice but to accept international law as it was even though they had no opportunity to participate in the making of that law was primarily articulated and promoted by Western international lawyers.

But despite the situational anchoring of Western conceptions of international law, Western textbooks of international law are generally seen as representing not just the Western approaches to international law, but international law tout court. Non-Western textbooks, on the other hand, are systematically portrayed as situated accounts of international law (“Third-World”, “Chinese” or “Russian” approaches to international law). As long as the Western conceptions of international law keep this privileged position, enabling them to claim the “monopoly of the universal” (Pierre Bourdieu), no genuine decolonisation is possible given the interpenetration of knowledge and social/political orders. This situation cannot be remedied simply by giving non-Western conceptions of international law a space or voice within international law academia if “the credibility economy” (Miranda Fricker) that prevails in academia is not radically revisited. In other words, the key question is not “who is entitled to speak?”, but “who should be listened to seriously?” (Gayatri Spivak) when the “academia in the Global North continues to set the intellectual agenda and prescribe the standards and protocols of good scholarship” (B. S. Chimni). The uncomfortable truth, therefore, is that it is not possible to achieve genuine decolonisation without addressing the “colonisation of the minds” (Ngũgĩ wa Thiong’o).

This article was originally published in Global Challenges, issue no. 10, October 2021.