The Continued Influence of Colonialism in International Law
29th March 2019
The Continued Influence of Colonialism in International Law Author: David Small Queen’s University, Belfast
Colonialism and international law have always been closely related.  International law was born out of colonialism in the Westphalian period but, in the 20th 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’. 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 18th
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.  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.
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. 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. 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.  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.  The UN’s most
important organs are the General Assembly (GA),  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. The powerful and influential role reserved for the SC in the
process of admitting members is revealed in articles 4 – 6.  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. 
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.
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.  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 19th 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.”  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. 
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. 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”.  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. 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.”  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. 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.
Klabbers, International Law (2nd
ed., Cambridge University Press 2017) p 6.
Anghie, “The Evolution of International Law: Colonial and
postcolonial realities” (Third World Quarterly, Vol. 27, No. 5 2006) 739, 740.
Montevideo Convention on the Rights and Duties of States 1933
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.
UN Charter, Chapter 5, Article 18(1) 1945.
Charles De Visscher, Theory
and Reality in Public International Law (Princeton University Press 1st
Edn. 1957) 228 – 229.
Chapter 2 1945.
UN Charter Articles 9 – 22 1945.
UN Charter Article 27(3) 1945.
UN Charter, Chapters 4 and 5 1945.
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.
Bruno Stagno Ugarte, The United Nations
Security Council in the Age of Human Rights (Cambridge University Press,