International Law and the Spirit of Anti‐Colonialism: Europe Fights Back
| Date | 01 January 2011 |
| Author | Anthony Carty |
| Published date | 01 January 2011 |
| DOI | http://doi.org/10.1111/j.1468-2230.2010.00840.x |
REVIEWARTICLE
International Law and the Spirit of
Anti-Colonialism: Europe Fights Back
Anthony Carty
n
Matthew Craven, The Decolonization of International Law, Oxford: Oxford
University Press,20 09, 304 pp, pb d24.99.
1
The theme of international lawand colonialism has given rise toa fair amount of
international law literature, but mainly from the margins of critical legal theory,
the outstanding ¢gures being Martti Kokenniemi
2
,AnthonyAnghie
3
and Natha-
niel Berman.
4
They argue that international law was complicit in facilitating
colonialism, for instance through the use of unequal treaties, the manipulation
of doctrines of recognition of statehood and the acquisition of property rights
abroad, especially over land and natural resources. It is important to realise that
their argument is not that at thetime international law resolved upona clear, sys-
tematically convincing conceptual framework for colonial activities. Anghie in
particularlays out the arbitrary use of concepts suchas treaty, recognition of legal
personality and statehood, which were always entirely left to the discretion of
theWestern powers. This will make it all the more slippery to state categorically
what can be meant by the decolonisation of the discipline. The three ¢gures
cited continue to argue that international law is still permeated with the colonial
n
On leavefrom the Schoolof Law,University ofAberdeen, at the Facultyof Law, Universityof Hong
Kong,Sir Y K Pao Chair of Public Law.
1The book under reviewhas received a distinction from the European Societyof International Law.
2M. Koskenniemi,TheGentle Civilizer of Nations (Cambridge:Cambridge University Press, 2002).
3A. Anghie, Imperialm, Sovereignty and the Makingof International Law (Cambridge: CambridgeUni-
versity Press, 2004). This workde als mostexte nsively with the history of the unequal treaties con-
cluded especially with African chieftans. It points out the di⁄culty facing an analysis of eventsof
imperialism through the prism of international law.Anghie argues that the positivist’spreference is
to stick to the text of the treaties and not to concern himself with the violence which nearly always
accompanied their conclusion. He also notes the more fundamental contradiction between con-
cluding manifestly unfair agreements with entities whose uncivilised character could be theo nly
justi¢cation for such treatmentbut which at the same time could not really be considered compe-
tent to conclude any agreement.Anghie quotes the primary authority of the time, Lasha Oppen-
heim, that there was not a satisfactory explanation of how the entities could conclude agreements at
all.There was perhaps moreto be said for the view of the greatcolonial administrator, Lord Lugard,
who thoughtthe treaty making process then practiced was a naked deceptiona ndthat it would be
better to found title to force andjustify it i nterms of the so-called inexorable lawof progress.
4Nathaniel Berman is not the author of a single monograph, although a collection of his writings
haveappeared: Passionset Ambivalences, Le colonialisme, le nationalismeet le droitinternational(Paris: Pen-
done, 2008).For the purposes of this review, Bermann’s key piece of psychoanalyticalhi storiogra-
phyis Les Ambivalences Impe
Łrialesin H. Ruiz and E. Jouannet (eds),Droit international et impe
Łrialismeen
Europeet aux Etats-Unis (Paris: UMR de Droit Compare, 2007). He brings to critical re£ection on
international law a mixture of cultural, anthropological and psychoanalyticalmaterial.
r2011The Authors.The Modern LawReview r2011The Modern LawReview Limited.
Published by BlackwellPublishing, 9600 Garsington Road,Oxford OX4 2DQ,UK and 350 Main Street, Malden, MA 02148, USA
(2011) 74(1) 135^149
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