The Continued Influence of Colonialism in International Law

The Continued Influence of Colonialism in International Law
Author: David Small
Queen’s University, Belfast

Colonialism and international law have always been closely related. [1] International law was born out of colonialism in the Westphalian period but, in the 20^th century the doctrine of state sovereignty and equality gained popularity leading to a dismantlement of empires and colonial rule. Treaties such as the Charter of the United Nations (UN) made important contributions to this development, becoming commonly accepted articulations of statehood in practice, but colonialism still continues to exert influence over international law to a much lesser extent that it used to. This subtle exercise of colonialism is demonstrated, most explicitly, through the UN Security Council which includes five permanent members with veto powers. Colonialism also continues to exert influence over the international law through the attitudes and exportation of values from “Northern powers” towards “Southern powers”. It is true that while all states may have the same status, they don’t all share the same significance.

Historically, colonialism took on an array of forms. The terminology varies and includes terms such as, ‘colony’, ‘protectorate’, ‘sphere of influence’ ‘overseas department’ and ‘dominions’.[2] The extent of colonialism in these territories varied but usually self-determination was removed from the colony and decision-making was relocated to the colonising power. Examples of colonialism can be seen in the European empires of the 18^th century to the U.S.S.R. during the 1950s. Today, the colonial structures have been dismantled and the doctrine of the equality of states is an accepted statute in the international legal order, but does this mean that colonialism no longer exerts over influential law?

The origin of the modern conception of state equality and sovereignty can be traced to the Treaty of Westphalia 1648. [3] Similar legal principles are clearly established for us in the Montevideo Convention on Rights and Duties of States 1933 (the Convention) which clearly outlined four criteria each State needed to be recognised: a permanent population; a defined territory; government; and capacity to enter into relations with other States.[4] This definition is consistently used as criteria to recognise the existence of a State in the international community and is arguably a very Western doctrine of Statehood underpinning the international legal order.[5] Additionally, the doctrine of state sovereignty and equality of nations has been encouraged through the principle of “one state one vote” in the United Nations Charter ensuring that all nations are represented equally and fairly in an international forum.[6] It is clear that within these developments there remains a spectre of colonialism that exerts a subtle influence over the international law today.

An important role of a state is to engage in diplomacy with other nations on behalf of a citizenry but to be recognised as a State is as much a process of politics and power as it is one of law. [7] To become a member of the UN, a state must comply with the procedures of the UN Charter subject to governing organs according to articles 3 – 6. [8] The UN’s most important organs are the General Assembly (GA), [9] which is made up of a member of every nation state each with one vote, and the Security Council (SC), a group of fifteen nation states – five of which are permanent, veto wielding members.[10] The powerful and influential role reserved for the SC in the process of admitting members is revealed in articles 4 – 6. [11] The UN Charter employs a clear perspective on the equality between nation states in the General Assembly: article 18(1) clearly stipulating that one state has one vote but this equality is distorted in the SC. The SC is conferred power and authority by the GA to maintain international peace and security but establishes a powerful position for the permanent members (P5) within it. [12] While it may be necessary and good to have this provision, it reduces the extent to which states are truly equal in spite the established doctrine of state sovereignty and causes concern for the continued existence of colonialism in international law. This concern isn’t just displayed in that states must have the concurring approval of P5 states and a majority of states in the SC and GA to be recognised as a state but is also displayed in the ways that the SC decides to go about maintaining international peace and security – a role of outsized importance and power, able to authorise the use of force.[13]

A careful study of the role of the P5 in the SC demonstrates an abuse of geopolitical power. An important example is the USA that used its veto to block the recognition of Palestinian statehood and membership to the UN. [14] By using this example, it can be seen that the power of States in the GA is outsized by P5 members such as the USA, that can derail a majority decision by one vote. Indeed, even within the P5 there is inequality. Nations such as the USA, with its power, wealth and respect in the world, bares resemblance of a colonial power of the 19^th century. In 1990, President George H. W. Bush declared these words in reference to the USA’s role within the UN, “we are now in sight of a United Nations that performs the as envisioned by its founders… we are the only nation on this earth that could assemble the forces of peace. This is the burden of leadership.” [15] Such a nation, though equal in statehood, is more powerful and therefore unequal to other nations of the world and conceives of itself as a racially and morally superior nation. [16]

An understanding of the concept of sovereign equality of states has been put forward by Simpson where he argues that context is key to understanding how equal state sovereignty is. For Simpson, the sovereign equality of states is “an ‘organising principle’ rather than a ‘territorial ideal’” where freedom and constraint are balanced.[17] By this he means that the principle of equality allows for States to have self-determination relative to the context as states will be constrained in their sovereignty in different ways. This conception of the international legal order is more developed than the colonial model of a world hierarchy of colonisers and colonies, but it recognises certain States have influence over others, demonstrating an inequality in the international legal order. This notion is similar to that of Charles De Visscher who said, “some [states] mark the soil more deeply with their footprints than others… because of their weight, which is to say their power in this world”. [18] This subtle exertion of influence by the Northern states is explicit in international law and politics.

An example of this contextual strength of a nation and its protected position as a P5 member comes through the case of the Chagos Islands. These islands, in the Indian Ocean were separated by the UK who relocated 1,500 islanders so that the island Diego Garcia could be used by the USA as a strategic airbase in 1971.[19] The UN GA voted against this and supported an inquiry led by the International Court of Justice to review the legality of the move by 94 votes to 15. Of note, is that the UN GA Resolution 1514 (the ‘Declaration on the Granting of Independence to Colonial Countries and Peoples’) vows to “end colonialism in all its forms and manifestations” and precludes “any attempt at the partial or total disruption of the national unity and the territorial integrity of a country.” [20] This is undeniably what the UK has done in the Chagos Islands – a British Indian Ocean Territory. While the ground beneath the UK may be shrinking on this issue it serves as clear evidence of the context of the power of nations and their inequality as well as the continued exertion of colonial influence in international law given that the UK has received no correction of this action to date.

The modern legal system is built upon a Western notion of state sovereignty and self-determination. This is a view that developing Southern states have had to adopt and accept. This is an important point because it demonstrates the extent to which the international legal order is founded by the Great Powers for the Great Powers. Indeed, in Northern/Western societies Southern societies are depicted as weak and needy. This school of thought, sometimes referred to the legal theory of Postcolonialism, is known as “Orientalism” with Edward Said as its major proponent. It essentially argues that the West represents the Southern countries in a certain perceived Western way that perpetuates colonialism.[21] This occurs in subtle ways and divides Northern powers from Southern powers. Any consideration of brief news alerts of disasters in Southern countries, of the disproportionate power of Northern states in the UN SC and of the role of Northern powers in planning and delivering aid to Southern states immediately causes one to see a binary world, one of inequality where the North brings strength and help to a needy South. This cultural reinforcement is central to Said’s thinking; the Northern powers instil this representation of the rest of the world through culture almost unknowingly. The notion that Northern states are superior encourages interventionist policies which resemble the colonial intervention of centuries ago. While delivering foreign aid and intervening in wars according to ratified SC powers may be good and helpful for the international legal order, it is nonetheless a colonial influence in international law that doesn’t portray an accepted view of equally sovereign states.

While international law has made many developments allowing for the sovereign equality of all states it is obvious that there still remains a disproportionate role of considerable power reserved for former colonial powers to influence international law. The question isn’t whether that is a good or bad thing because it is both; much good is brought about through the use of the SC to maintain international peace and security, but equally, one has to concede that the case of the Chagos Islanders is an unfortunate and a sorry one. The case is clear, there remains a subtle influence of colonialism in the international law despite established doctrines of state equality.

1. Klabbers, International Law (2^nd ed., Cambridge University Press 2017) p 6.
2. Ibid. 77.
3. Anghie, “The Evolution of International Law: Colonial and postcolonial realities” (Third World Quarterly, Vol. 27, No. 5 2006) 739, 740.
4. Montevideo Convention on the Rights and Duties of States 1933 Montevideo
5. Donald L. Horowitz, ‘Ethnic Groups in Conflict’ in Hannum H, Autonomy, Sovereignty, and Self-Determination: The Accommodation of Conflicting Rights (University of Pennsylvania Press Revised Edn. 1990) 87.
6. UN Charter, Chapter 5, Article 18(1) 1945.
7. Charles De Visscher, Theory and Reality in Public International Law (Princeton University Press 1^st Edn. 1957) 228 – 229.
8. UN Charter, Chapter 2 1945.  
9. UN Charter Articles 9 – 22 1945.
10. UN Charter Article 27(3) 1945.
11. UN Charter, Chapters 4 and 5 1945.
12. UN Charter Articles 23 1945. P5 refers to The Republic of China, France, the Union of Soviet Socialist Republics, the United Kingdom of Great Britain and Northern Ireland, and the United States of America.
13. Genser J, Bruno Stagno Ugarte, The United Nations Security Council in the Age of Human Rights (Cambridge University Press, 2014) 5.
14. Louis Charbonneau, “Palestinian statehood resolution fails at U.N council, U.S. votes against” Reuters (31^st December 2014). < https://www.reuters.com/article/us-mideast-palestinians-un-idUSKBN0K81CR20141231 > accessed 3^rd December 2018.
15. Wiener, “The United Nations in the New World Order: The World Organization at Fifty” (Macmillan 1995) p 41.
16. David Strang, “Contested Sovereignty: the social construction of colonial imperialism” in Thomas Biersteker et al., State Sovereignty as Social Construct (Cambridge University Press 1996) 33.
17. Simpson, Great Powers and Outlaw States: Unequal Sovereigns in the International Legal Order (Cambridge University Press 2004) p 41.
18. Oscar Schachter, The Role of Power in International Law (Cambridge University Press on behalf of the American Society of International Law Vol. 93 1999) 200, 202.
19. Owen Bowcott, “EU members abstain as Britain defeated in UN vote on Chagos Islands” The Guardian (London,23^rd June 2017).
20. UN GA Resolution 1514 (14^th December 1960).
21. Edward Said, Orientalism (Penguin Books, London 2003) 14.