Absentee Colonialism

FROM ‘NARCISSISTIC’ POSITIVE INTERNATIONAL
LAW TO ‘UNIVERSAL’ NATURAL INTERNATIONAL

LAW: THE DIALECTICS OF ‘ABSENTEE COLONIALISM’
PRABHAKAR SINGH*
I. INTRODUCTION
The classic notions of antiquity had very imperfect notions of
international justice. With the Greeks and Romans, ‘foreigners’ and
‘Barbarians’ or ‘enemy’ were synonymous in language and in fact. By
their rude theory of public law, the persons of alien were doomed to
slavery (. . . ) piracy was unblushingly practised by the most civilized
states which then existed (. . . ) Grecian philosophers gravely assert
that they (barbarians or foreigners) were intended by nature to be the
slaves of the Greeks.1
‘Colonialism’ has been the first gift of science to the non-European world.
Developments in natural science through inventions set the pace for industrial
revolution in Europe. The industrial revolution, further, set the sail for discovering
new markets, resources and raw materials. An attempt to find markets and
materials exposed the fragile Asian and African states to the imperial designs
of colonisers, hidden in the garb of civilisers and merchants. The marriage of
‘mercantilism’ and ‘civilisationalism’ on the Asian and African soil fertilised by
advances in science gave birth to colonialism. This ‘couple’ conceived many a
time and brought forth ‘cultural’ and ‘military’ subjugation, servility, racism and
interference into the sovereignty and society of the unexcavated soil of Asia and
Africa. This family soon spread in the world what we now know as ‘the Empire’.
The Empire accidentally found a very faithful servant: international law, a
servant which had accompanied the empire from Europe. Born and brought up
* B.A.LL.B (Hons.); National Law Institute University [NLIU], Bhopal, India. The article benefits
from author’s academic tours of Sri Lanka, Macau, and Luxembourg. The author has been
a Visiting Scholar to the European Court of Justice, Luxembourg. He was also awarded full
scholarship for 6th Academy of International Trade Law organised by Institute of European
Studies of Macau (IEEM). Many thanks are due to Premier Advocate General Miguel Maduro,
The European Court of Justice, Luxembourg and Prof. Stephen Weatherill, Jacques Delors
Professor of European Law, Somerville College, University of Oxford for their incisive
comments and suggestions for improvement on the primary draft. He is indebted to Bishwaksen
Bandyopadhyaya for reading through the final draft for stylistic expressions. The author is
equally grateful to Prof. Rachel Murray, editor AJICL, for her detailed editorial help. Errors and
opinions, nonetheless, are author’s alone. He can be reached at prabhakar_singh@hotmail.com.
1 H. Wheaton, Elements of International Law: A Sketch of the History of the Science, Carey, Lea
& Blanchard (1836) at 17.
16 RADIC (2008) DOI: 10.3366/E0954889008000066

56
The Dialectics of ‘Absentee Colonialism’ 57
in the post Westphalian European surroundings and emerging out of the tenets
of naturalism, European international law was manufactured by a metamorphosis
under the heat and pressure of market, money and materialism. Its nature and
character changed completely. Even international law’s Dutch father, Huig de
Groot could not have recognised this new form of international law for which
I have coined the term, “narcissistic positive international law”. It was a post
‘Age of Reason’ phenomenon though there is ‘considerable evidence to contrary’
showing it was not exactly an age of reason.2 Professor Mahendra Singh believes
that
the renaissance, reformation and industrial revolution gave such a
lead to the West over the rest that not only the former conquered
and colonised the latter, but the former also got convinced that only
the ideas and theories that helped it [the West] in bringing about this
transformation, could transform the rest too.3
This article deals with the role of invented positive international law and legality
behind the project of colonisation in Asia, Africa and the Pacific. By asserting
Western conceptions of sovereignty in oriental civilisations and the policy of
‘cultural comparison’ and ‘racial construction’ of sovereignty in international
law, the colonisers, racialised the vocabulary of sociology of international law.
A. Naturalism, Positivism and International Law

Two contesting sets of dialogues that have affected the character of international
law in the 19th and 20th centuries are the natural and positivistic law debates.
Natural law advocates an application of universal principles of morality and
justice, whereas legal positivism only considers the law flowing down from the
sovereign as the true law. Thus Hobbes and Austin treated international law as
‘international morality’, and not fit to be called a proper law. Eighteenth century
Europe was expanding and capturing colonial territories and it needed its colonial
endeavours to be ‘legitimised’. International law, therefore, had to be proved a
proper law – the first step in the justification of the politico-economic project
of colonisation. An otherwise construction of international law on natural law
grounds would not have approved the ‘colonisation project’ of the European
states.4 Sir Hersh Lauterpacht has therefore conceded that there was indeed some
political purpose behind the colonisation scheme.5
2 J. Bacchus, ‘Groping Towards Grotius: The WTO and the International Rule of Law’, 44(2)
Harvard Journal of International Law (2003) 534.
3 M. P. Singh, ‘A Theory of Human Right for India’, 4(1) Indian Juridical Review (2007), at
2. The author here discusses the works of Rajani Kothai, an important scholar on third world
human right’s debate. Also see, U. Baxi, ‘Voices of Suffering and the Future of Human Rights’,
8(2) Transnational Law and Contemporary Problems (1998) 125–169.
4 P. Singh, ‘Constitutional Norms in International law: International Judicial Regimes, Human
Rights and Resistance’, 4(1) Indian Juridical Review (2007) 133–149.
5 H. Lauterpacht, The Development of International Law by Permanent Court of International
Justice Longmans, Green & Co. (1934).
58 Prabhakar Singh
Towards the end of the 19th century positivism was replacing naturalism as the
chief analytical apparatus to study law and society. Henry Wheaton, an American
writer of considerable influence, emphatically claimed that the ‘Law of Nations’
or jus gentium came out from natural laws that had emerged from the influential
works of Hugo Grotius and Puffendorf in Europe.6 But the Austinian positive law,
which came after these works, treated international law as international morality
with no force of law and fear of sanctions.7 Henry Wheaton declared, as early
as 1836, that there was no universal law of nations.8 In the beginning of the
20th century, lawyers like Lassa Oppenheim9 and Lauterpacht10 were trying to
establish international law as a proper law.11 The popularity of Austinian advocacy
for disqualification of international law from the determined province of law was
a hurdle before these naturalists. This was also the time when imperialism was
spreading and international law had the additional task of accommodating the role
of colonisation in international law. But for most scholars like Alexendrowicz,
colonisation had a marginal or peripheral import on the making of international
law.12 However, the new 21st century debate on colonialism and international law,
particularly by Antony Anghie, treats colonialism as the central element in the
development of modern international law.13
6 Wheaton, supra note 1 at 36, 37.
7 The major works of Austin are, Lectures on Jurisprudence, J. Murry (1897) and D. Campbell &
P. Thomson (eds.) The Province of Jurisprudence Determined by John Austin, Ashgate (1998);
see for discussion on Austinian Sovereign and Family of nations: G. Butler, ‘Sovereignty and
League of Nations’, 1 British Yearbook of International Law (1920/21) 35–44.
8 Wheaton, supra note 1; In this book Wheaton mentions natural law as the law of God. He
mentions Hobbes, Puffendorf and Vattel’s influential works to define international law.
9 L. Oppenheim, ‘The Science of International law: Its task and Method’, 2 American Journal of
International Law (1908) 313. There were a lot of articles published in the British Yearbook
on the issue of positivistic accounts of international law. See W. Jones, ‘The Pure Theory of
International Law’, 16 British Yearbook of International Law (1935) at 5; J. Starke, ‘Monism
and Dualism in International Law’ 17 British Yearbook of International Law (1936) at 66;
L. Kopelmanas, ‘Custom as means of Creation of International Law’, 18 British Yearbook of
International Law (1937) at 127.
10 Lauterpacht, ‘United States and the Permanent Court of International Justice’, 1 Pacific Affairs
(1928) at 33.
11 The publication of the British Yearbook of International law is one step in this direction. This
was intended to record the developments in international law as in the domestic law. From 1939
to 1943 due to the outbreak of the Second World War the publication of the British Yearbook
of International law was suspended. See Lauterpacht, ‘Introduction: Resumption of the publi-
cation of the British Yearbook of International Law’, 21 British Yearbook of International law
(1944) iii.
12 C. H. Alexandrowicz, An Introduction to the History of the Law of Nations in the East Indies
Clarendon Press (1967); C. H. Alexandrowicz, ‘Doctrinal Aspects of the Universality of the Law
of Nations’, 37 British Yearbook of International Law (1961) 506–515.
13 A. Anghie, ‘The Evolution of International Law: Colonial and Postcolonial Realities’, 27(5)
Third World Quarterly (2006) 739–53. Antony Angie’s works have inspired me to research in
this particular area of international law. His article . . .
sketches out a history of the evolution of international law that focuses in particular on the
manner in which imperialism shaped the discipline. It argues that colonialism, rather than
being a peripheral concern of the discipline is central to the formation of international law
and, in particular, it’s founding concept, sovereignty. It argues that international law has
always been animated by the civilising mission, the project of governing and transforming
non-European peoples, and that the current war on terror is an extension of this project.
This article divulges the political and diplomatic aspects of ‘manufactured

positive international law’ because the ‘colonial and postcolonial realities of
international law have been obscured by the analytical frameworks that governed
traditional scholarship on the subject’14 and the new scholarship ought to provide
fresh impetus and dimension to this study.
II. COLONIALISM, EUROPE AND INTERNATIONAL LAW
For many, the universalisation of international law is principally the political by-
product of imperialism. However true this may be, I would argue that the shift
to positivism of international law from naturalism was a conscious choice by
European scholars like Westlake,15 Wheaton16 and Oppenheim.17 International law
could only then be legitimised and imperialism justified. Although colonialism
has ended today, many prominent scholars have talked about new forms of
imperialism as dialectics of colonial sovereignty.18 In their book Empire, Hardt
and Negri link the global transformation to cultural and economic changes
in post-modern society to new forms of racism, new conceptions of identity
and difference, new networks of communication and control, and new paths of
migration.19 Indeed, the European project of colonisation did never cease and by a
complex matrix of economics and politics it continues to survive even today. The
political domination of the first world continues. Only the leaders have changed.
America and not England now leads it in the 21st century with the force of
international relations.
The new family of nations largely excluded the participation of new
born sovereigns. The family of nations built over self-appreciating narcissistic
construction of dominant culture by imperial Europe could not have adopted
an uncivilised non-white population in its fold. But no one defined, even in the
academic debate, what constituted a real civilisation that clearly distinguished
the whites from the rest. The so called barbarism of the Eastern societies was
an assumption of exploitative designs engineered for political and economic
domination by the European colonisers. Wheaton, for example, says that piracy
in high seas was unblushingly practised by the [so-called] civilised nations.20
Thus trade was the only concern which accounted for this behaviour of European
states. Sea formed an important arena where naval domination would ensure
a competitive commercial and military edge. The Dutch, Spanish, Italian,
14 Ibid.
15 See Generally, J. Westlake, Chapters on the Principles of International Law, University of
Michigan Press (1894).
16 supra note 1.
17 See, John Pawley Bate (Trans.), Die zukunft des völkerrechts by Lassa Oppenheim [The Future
of International Law], H. Milford (1921).
18 M. Hardt and A. Negri Empire, Harvard University Press (2000).
19 Susan Mark discusses the book Empire and the theory by Hardt and Negri in S. Marks ‘Empire’s
Law’, 10(1) Indiana Journal of Global Legal Studies (2003) 449–466.
20 Wheaton, supra note 1 at 17.
60 Prabhakar Singh
Portuguese, French and English fought among themselves for greater control and
domination of the sea bound trade. The ‘open sea’ argument prevailed over ‘the
close sea’ argument in the battle of books and this marked the first step in the
culmination of the era of colonialism.21 The eastern Islamic nations,22 the East
Asians23 and the South Asians24 were equally active in international trade and
thus there could hardly be any difference in the nature of commercial business of
the Eastern and Western civilisations.
But what was the surreal intention of the Europeans behind racial and cultural
discrimination? What made them make the slave trade flourish? The trade in black
natives of Africa subjected the entire African population to an era of humiliation
that culminated into an unrecognisable mutilation and subsequent loss of African
identity. Imperialism surreptitiously moved from strength to strength: from slave
trade to neo-colonialism to absentee colonialism.25 James Gathii in the same vein
demonstrates that the ‘inconsistency between the promise of liberty and the reality
of colonial illiberalism created room for resistance and reconstitution of colonial
territorial acquisition by colonized people.’26 The grounds upon which the line
of civilised and uncivilised was drawn were many: race, religion, economics
and political strength of states. The angle of legality was later introduced for
discriminating a strong sovereign from a weak sovereign.
European international law has always been linked to the development of an
autonomous legal field within a state that has succeeded in unifying a particular
European territory, military, political and cultural, under its sovereignty.27 This
is also the point of difference between European and Asian sovereigns. The
European idea, however, never extended beyond the political and geographical
21 P. Singh, ‘The Political Economy of the Law of the Sea in the era of Absentee Colonialism’: 7
Nakeeram (2005) 223–33, at 225, 227. I have argued and defined absentee colonialism:
. . . In our part of the world what has really been lacking is the ingenuity of ideas for our
betterment . . . we have been dependent on the West for solution to our problems . . . the
location and identification of our problems has also been left in the hands of the West. But
we have reasons to doubt the Western solutions to our problems. This is one of the reasons
why the ‘Absentee Colonialism’ has been thriving in our part of the world.
22 See, N. Hanna (ed.), Money, Land and Trade: An Economic History of the Muslim
Mediterranean, IBTauris Publishers (2002).
23 G. Khoo and D. Lo, Asian Transformation: A History of South-East, South, and East Asia,
Heinemann Educational Books (1977).
24 J. Pluvier, South East Asia from Colonialism to Independence, Oxford University Press (1974).
25 See extensively, P. Singh, supra note 21, for debate on ‘Absentee Colonialism’; see R. M.
Spitzer, ‘The African Holocaust: Should Europe Pay Reparations to Africa for Colonialism
and Slavery?’, 35(4) Vanderbilt Journal of Transnational Law (2002) 1313–47; J. Suret-Canale,
Essays on African History: From the Slave Trade to Neo-Colonialism, Hurst & Co. Publishers
(1988).
26 J. Gathii, ‘Imperialism, Colonialism and International Law’ Working Paper available
at http://law.bepress.com/expresso/esp/1262 (visited on 2nd June 2007); see, J. Gathii,
‘Neoliberalism, Colonialism and International Governance: Decentering the International Law
of Governmental Legitimacy’, 98(6) Michigan Law Review (2000) 1996–2054.
27 G. Sacriste and A. Vauchez, ‘The Force of International Law: Lawyers’ Diplomacy on the
International Scene in the 1920s’, 32(1) Law and Social Inquiry (2007) 84.
limits of Europe. Rather the concept of sovereignty that was applied in Asia
and Africa was diametrically opposite, schemed to work for the commercial and
political advantage of European colonisers.
The effective development of international law in Europe was the effort of
lawyers who did not restrict themselves to the strict functions of lawyers. It
was the effort of a ‘heterogeneous group of international lawyers (scholars,
judges, legal advisers of national diplomacies, private practitioners) to collectively
build and maintain an international law apparently freed from the driving
forces and loyalties of international relations (IR) – that is, national interests
and political allegiances’.28 But what constituted the ‘national interests’ of
those who wished to create and maintain such a brand of pure or positive
international law – unadulterated by the international relations? What must have
been the subtle reasons behind the denunciation of the role of IR to formulate a
positive international law? While this heterogeneous group was referring to the
universalistic ideals of a legal science, according to Sacriste and Vauchez ‘these
lawyers were nevertheless generally incapable of disentangling themselves from
the national interests intrinsic to the exercise of diplomacy’.29 As a matter of fact,
their legal arguments were generally perceived as mere rationalisations of pre-
existing national diplomatic interests.30 However, the liberty to manoeuvre the
international law of a country varied greatly depending upon the political strength
of that particular European country and its colonial stakes. Therefore European
and American legal experts had to manage a far more complex matrix of blending
universalistic principles of international law into the political interests of the large
nations they represented.
First of all, it depended on the consistency between IL principles

and the national interests of their government. As a matter of fact,
the legal advisers of the smaller European countries – Belgium, the
Netherlands, Greece, or the Scandinavian countries – could afford to
use the universalist principles of international law (from the concept
of ‘international solidarity’ to the ideal of the ‘equality between all
states’) all the more freely, as it tended to generally coincide with the
interests of their diplomacy. Conversely, to some other countries, and
particularly the great powers of the time, these very same principles
appeared as a potential threat to their free maneuverings on the
international scene.31
Positive jurists, particularly Hans Kelsen, categorically announced in his
remarkable book the Pure Theory of Law that realisation of justice is not essential
28 Ibid at 85.
29 Ibid at 86.
30 M. Madsen and A. Vauchez, ‘European Constitutionalism at the Cradle: Law, Lawyers in the
Construction of a European Legal Order (1920–1960)’ in A. Jettinghoff, H. Schepel (eds.), In
Lawyers’ Circles: Lawyers and European Legal Integration, Elzevier Press (2005) 15–34.
31 supra note 27, at 86.
62 Prabhakar Singh
to law.32 This, I think, gave a serious blow to the case for equality of treatment
to all races by law. However, the advocacy of oppression of the inferior and the
sub-human in the colonised world has as much to do with a confused political
sociologist Marx, as it has to do with Kelsen, the positive international lawyer.
Karl Marx, as Ashish Nandy points out, felt that history would produce new
social consciousness in Asia and Africa out of oppression, violence and cultural
dislocation along with new technological and social forces!33 He saw the move
to colonialism as the next ‘step of development’ from a feudal war ravaged 17th
century Europe. A third world view of law, society and colonialism can potentially
distort, as we can see in Marx’s case, the image of some of the ‘Enlightenment
figures’ of Europe. The Second World War, Nandy believes, has obviated that
the drive for mastery over men is not merely a by-product of a faulty political
economy but also a world view which believes in the absolute superiority of the
human over the non human, the masculine over the feminine, the adult over the
child, the historical over the ahistorical and the progressive and modern over the
traditional or savage.34 It is now time to turn to the second form of colonisation,
the one which at least six generations of the third world have learnt to view as
a prerequisite for their liberation.35 The new forces of ‘absentee colonialism’,
as I call it, not only operate through the sophisticated forces of international
relations, but release forces, as Nandy feels, ‘within the colonised societies to
alter their cultural priorities once for all.’36 The first colonisation died with the
Empire but the second is independent of its roots – those who battle the first
often guiltily embrace the second. The conventional anti-colonialism has already
become an apologia, as Nandy once cautioned with fear, for the colonisation of
minds.37
Modern colonialism won its great victories not so much through its
military and technological prowess as through its ability to create
secular hierarchies incompatible with the traditional order. These
hierarchies opened up new vistas for many, particularly for those
exploited or concerned within the traditional order. To them the new
order looked like-and here lay its psychological pull-the first step
towards a more just and equal world. That was why some of the finest
critical minds in Europe-and in the East-were to feel that colonialism,
by introducing modern structures into the barbaric world, would open
up the non-West to the modern critical-analytic spirit.38
32 M. Knight (trans.), Pure Theory of Law by Hans Kelsen, Lawbook Exchange (2002) at 48.
33 A. Nandy, The Intimate Enemy: Loss of Recovery of Self Under Colonialism in A. Nandy (ed.)
Exiled at Home, Oxford University Press (1998) at v. of Preface.
34 Ibid at vi.
35 Ibid at vii.
36 Ibid at vii.
37 Ibid.
38 Ibid at iv.
III. THE INTERNATIONAL LAW POSITIVISM: THE EUROPEAN

INTERNATIONAL LAW SCHOLARSHIP
A. Lassa Oppenheim
Lassa Oppenheim,39 an international jurist of German origin but British
citizenship is known for advocating grounds for a positive international law.40
International law has never been treated as a positive law as there was no
international sovereign.41 The positive international law of Oppenheim only takes
into account Euro-American civilisations. Such a reading of international law
is quite understandable because at the time of his writings – late 18th century
and early 19th century – the world was politically divided into two categories:
coloniser states and the colonised territories. The Afro-Asian territories were
colonies of Britain, France, Spain and other European powers.42
It was obviously difficult to find a Euro-American voice for the assimilation of
Afro-Asian considerations in the international law fold. The reasons were more
cultural than political: the East was considered non-scientific in its approach to
governance and values of law. Therefore positive international law established
on the foundations of scientific findings could not be a constituent to it. Largely
the writings of Lassa Oppenheim43 have been theoretically shallow and seek to
exclude, from international law, not only the rights of all individuals but also the
rights of people beyond the Euro-American system. As discussed elsewhere,
Sovereign power is territorial in character and not subject to any
limitation by higher or co-ordinate power . . . which of the two species
identified; political or legal sovereignty has priority. Is ultimate
political power a precondition to ultimate legal authority, or vice
versa? The tradition of Hobbes, carried on by early Austin and finally
re-conceptualised in Germanic tradition by Carl Schmitt is unhesitant
in ascribing primacy to the political.44
The colonisers possessed the political will and military strength to materialise
the project of colonisation in the wake of a weak and passive resistance
offered by the colonised territories. Colonies had become the central aspect of a
coloniser country’s economy. Positive international law was used to advocate the
39 See, supra note 17, also see, S. J. Astorino, ‘The Impact of Sociological Jurisprudence on
International Law in the Inter-War Period: The American Experience’, 34 Duquesne Law Review
(1996) at 277.
40 B. Kingsbury, ‘Legal Positivism as Normative Politics: International Society, Balance of Power,
and Lassa Oppenheim’s Positive International Law’, 13(2) European Journal International Law
(2002) 401–437.
41 See P. Singh, Absentee Colonialism, supra note 21, also see, A. Orakhelashvili, ‘The Idea of
European International Law’, 17(2) European Journal International Law (2006) 315–347.
42 See, B. Kingsbury, ‘Sovereignty and Inequality’, 9(4) European Journal International Law
(1998) 599–625.
43 M. Schmoeckel, ‘The Internationalist As A Scientist And Herald: Lassa Oppenheim’, 11(3)
European Journal International Law (2000) 699.
44 P. Singh, ‘Austin’s Positivism: Is it a Retrospective Investigation of Contractualist Sovereign?’
30(4) Cochin University Law Review (2006) 42–74, at 53.
64 Prabhakar Singh
manufactured legality of the colonisation project. The later positivists replaced

‘sovereignty’ by ‘society’ and therefore more than legality; it was the racial
inferiority that was made the ground of discrimination between the oriental and
European sovereign and people.
B. Carl Schmitt
Carl Schmitt is one of the most controversial figures in the European tradition of
positivistic scholars.45 He is known for his allegiance to the cause of promotion
of Nazism and racial theory of superiority.46 As some authors have tried to argue
positivism supported Nazism in Germany’s current legal system,47 it is important
to note here that Carl Schmitt’s works on legal positivism were never in favour
of colonisation.48 Rather they forwarded a theory of enemy, friend and war where
only European states were taken into account. He aspired to establish the German
Sovereignty over all other states in Europe.
His example is important for our debate as it was for the first time that the
theory of positivism applied to the colonial construction of international law,
and potentially threatened the otherwise secured European colonisers like France
and Britain.
IV. IMPERIALISM AND INTERNATIONAL LAW
During the last twenty years of the last century Great Britain,
Germany, France and Russia had bitten off huge mouthfuls of Africa
and Asia, which are not yet chewed, digested, or assimilated.49
45 G. Schwab (tans.), The Concept of the Political by Carl Schmitt, University of Chicago Press
(1996). The Leiden Journal of International Law published an issue devoted to the discussion of
works of Carl Schmitt. See, the 2006, volume 19 issue 1; L. Odysseos and F. Petito, ‘Confronting
International Law with International Relations (and vice-versa): The International Theory of Carl
Schmitt and the Present Global Predicament(s)’, (2006) Leiden Journal of International Law
1–7; C. Burchard, ‘Interlinking the Domestic with the International: Carl Schmitt on Democracy
and International Relations’, Leiden Journal of International Law (2006) 9–40; T. Zarmanian,
‘Carl Schmitt and the Problem of Legal Order: from Domestic to International’, Leiden Journal
of International Law (2006) 41–67; J. Friedrichs, ‘Defining the International Public Enemy;
The Political Struggle behind the Legal Debate on International Terrorism’, Leiden Journal
of International Law (2006) 69–91; R. Howse, ‘Europe and the New World Order: Lessons
from Alexandre Kojeve’s Engagement with Schmitt’s “Nomos der Erde’, Leiden Journal of
International Law (2006) 93–103.
46 See, C. Joerges and N. Singh Ghaleigh, (eds.), Darker Legacies of Law in Europe: The Shadow of
National Socialism and Fascism over Europe and its Legal Traditions, Hart Publishing (2003);
K. Engelbrekt, ‘Darker Legacies, Schmitt’s Shadow and Europe’, 7(2) German Law Journal
(2006) 109–26.
47 D. F. Vagts, ‘How much of Nazi and Fascist Law survived in the new Europe?’, 7(2) German
Law Journal (2006) 237.
48 F. Mgret, ‘War’? Legal Semantics and the Move to Violence?’, 13(2) European Journal
International Law (2002) 361.
49 J. A. Hobson, Imperialism: A study, George Allen & Unwin ltd. (1961) 223; Nathan J. Brown,
‘Retrospective: Law and Imperialism: Egypt in Comparative Perspective’, 29(1) Law and Society
Review (1995) 103, 106, 100.
. . . [e]very other European nation recognises the true outline of

British Imperialism and charges us with hypocrisy in feigning
blindness. This charge is false; no nation sees its own shortcomings;
the charge of hypocrisy is seldom justly brought against an individual,
against a nation never. Frenchmen and Germans believe that our zeal
in promoting foreign mission, putting down slavery and in spreading
the arts of civilisation is a false disguise conveniently assumed to
cover naked national self-assertion. The actual case is somewhat
different.50
These lines by Hobson sharply bring out the aspirations of the British colonial
minds which undoubtedly were the leaders in the colonisation project. It is
interesting to note that Hobson uses the term ‘spreading the art of civilisation’
(why not read this as art of colonisation!) for ‘the project of colonisation’. The
agenda (or the art) of colonisation was simultaneously carried on in many fronts:
political, social, and cultural and thus the ‘[n]et result was the destruction of
( . . . ) civilizations and their Hispanicization – Christianization ( . . . ) fundamental
racism of the Anglo-Saxon colonists explains why this model was reproduced
elsewhere ( . . . ) [F]or whereas the Catholic Spaniards acted in the name of the
religion that had to be imposed on conquered peoples, the Anglo-Protestants took
from their reading of the Bible the right to wipe out the “infidels”. The infamous
slavery of the Blacks (was) made necessary by the extermination of the Indians –
or their resistance.’51 The colonisers intended a complete destruction, either of the
people, on racial inferiority grounds, or of the religion or culture of the captured
native and therefore their cultural identity.
The 19th century colonisers had to establish the primacy and superiority of the
European sovereign, which is the source of law in the positivistic constructions,
over the non European sovereigns.52 Only then the ‘project of colonisation’
could be forced ahead wherein the resources of the colonies, both natural and
human, could to be exploited. Therefore, the technologically underdeveloped
and internationally unexposed societies of Asia, Africa and the Pacific were
consciously chosen to be the point of difference between the coloniser and the
colonised by European international law scholars. By using scientific grounds,
European colonisers were able to declare all the non-European ‘Others’, inferior
50 Ibid at 196.
51 S. Amin, ‘Imperialism and Globalization’, 53(2) Monthly Review (2001) available at
http://www.monthlyreview.org/0601amin.htm (visited on 12th March 2007).
52 For the classical concept of sovereignty, see Antonio Perez, ‘Who Killed Sovereignty? Or
Changing Norms Concerning Sovereignty in International Law’, 14(2) Wisconsin International
Law Journal (1996) 463. He writes, at 466:
The changing classical concept of Sovereignty, as every beginning student of international
law recalls, draws on the political ideology and experience of 17th Century Europe, the so
called Westphalian Conception . . . as more limited conceptions of state sovereignty evolved,
such concepts as ‘condominium’ and ‘mandate’ were best understood as, respectively, kinds
of joint ownership and trusts drawn from civil law traditions. Thus property became kind of
ruling ideology in international law.
66 Prabhakar Singh
and unfit to become part of the family of nations: a family where the Europeans
claimed membership on cultural and racial superiority grounds.
A cultural translation of positive European sovereign in effect assumed the
superiority of civilised races and the importance of development of natural sci-
ence. But this was not done without any cost. Manufacturing a positive European
sovereign entailed a complete disregard to historicity apart from legitimising
violence of ‘words’ and ‘actions’ while expanding the colonial project. The
European definition of civilisation which came to its colonies highlighted the
relative political reality of race and law.
A. Post Second World War International Development or Fragmentation

After the Second World War, the ICJ initially worked in favour of the coloniser
countries. The reasons are largely obvious. The ICJ itself was a construct of
positivistic international law. 19th and 20th century Europe had thrived on the
positivism of international law application. It needed a lot of time before natural
law could again be considered in the political operation of international law,
through the international courts. Later on, when various other world courts were
developed, such as ITLOS, the decisions by them led to what the scholars call:
the problem of fragmentation of international law.53 As Alexandra Kemmerer
observes:
As the steady proliferation of rule systems and jurisdictions
corresponds to an ever accelerating differentiation and fragmentation
of global law, institutions become regimes, rules become regulations,
and government becomes governance. It is not responsibility that
matters, it is compliance. Lawyers reinvent themselves as experts in
international relations.54
This observation points to the issue of constitutionalism in international law while
discussing fragmentation. This new debate on constitutionalism, as Koskenniemi
observes, is an ‘effort to move away from diplomacy and politics – the politics of
sovereignty in the early twentieth century, the politics of functional diversification
in the early twenty first – by reading the international legal system through definite
(though perhaps implicit) hierarchies of rules or institutions reflecting choices
of value often expressed in Latin formulas such as jus cogens or obligations
erga omnes’.55 This is a relatively new area of research where international
53 P. Singh, supra note 4 at 148; see generally, K. Mickelson, ‘Rhetoric and Rage: Third World
Voices in International Legal Discourse’, 16(2) Wisconsin International Law Journal (1998)
353–419; M. wa Mutua, ‘Why Redraw the Map of Africa?: A Moral and Legal Inquiry’, 16
Michigan Journal of International Law (1995) 1113–76.
54 A. Kemmerer, ‘Conference Report – Global Fragmentations: A Note on the Biennial Conference
of the European Society of International Law’, 7(7) German Law Journal (2006) 729–33.
55 M. Koskenniemi, ‘The Fate of Public International law: Between Technique and Politics’,
70(1) Modern Law Review (2007) 1–30. In this article Koskenniemi cites other works of
relevance. They are: A. Verdross, Die Verfassung der Völkerrechtsgemeinschaft, Springer (1926).
C. Tomuschat, ‘International Law: Ensuring the Survival of Mankind on the Eve of A New
law, international relations and globalisation have been discussed.56 The ongoing
project of economic integration challenges the paradigms of constitutionalism.
This, feels Miguel Maduro, challenges the state monopoly of constitutionalism,
the autonomy of national political communities, and the traditional forms
of participation and representation.57 This is therefore an important point of
debate from the Southern perspective. The economic institutional mechanism
of ‘financial aid’ has the capacity to affect the domestic political choices of a
nation. The degree of effect depends upon the insulatory capacity of a particular
nation. Very obviously it can be concluded that the southern nations are ‘excellent
conductors’ for global policy choices made by powerful nations. Historically the
domestic national interests of the weaker countries have always been hijacked
both in the past and present at the cost of participation and inclusion in the new
international law fold.
The subject of international law is ever evolving with the social, cultural and
economic changes in the North and the South in the postcolonial world.58 Also,
very recently, the proximity of international law and international relations has
come to be recognised by Western and Eastern scholarship.59 International law,
however, as regards the procedure and institutions for adjudication of disputes,
Century, General Course on Public International Law’, 281 Recueil des Cours de l’Académie
de droit international (2001) 63–72. A. von Bogdandy, ‘Constitutionalism in International Law.
Comment on a Proposal from Germany’, 47(1) Harvard International Law Journal (2001) 223;
P. Dupuy, ‘L’unité de l’ordre juridique international, Cours général de droit international public’,
297 Recueil des Cours de l’Académie de droit international (2002) 269–313 (on jus cogens).
See, S. Kadelbach, ‘Ethik des Völkerrechts unter Bedingungen der Globalisierung’, 64 ZaöRV
(2004) 1–20 and E. de Wet, ‘The Emergence of International and Regional Value Systems as
a Manifestation of the Emerging International Constitutional Order’, 19(3) Leiden Journal of
56 I have particularly been inspired by the works of Prof. Miguel Poiares Maduro; see Maduro
‘From Constitution to Constitutionalism: A Constitutional Approach to Global Governance’, in
Douglas Lewis (ed.) Global governance and the Quest for Justice-International and Regional
organization, Hart Publishing, (2006) 226–250. While teaching in the Academy of International
Trade Law 2006 organised by the Institute of European Studies of Macau, he introduced me to
the other works on constitutionalism by E. de. Wet, ‘International Constitutional Order’, 55(1)
International and Comparative Law Quarterly (2006) 51–76.
57 M. Poiares Maduro, The Constitution of the Global Market in Francis Snyder (ed.) Regional and
Global Regulation of International Trade, Hart Publishing (2002) at 49; see the works of Noam
Chomsky, ‘The Pentagon Papers and U.S. Imperialism in South East Asia’, The Spokesman
(1972–73) available at http://www.chomsky.info/articles/1972—.htm. He says:
. . . In a capitalist society, the operative form of autocratic rule is the private control of the
means of production and resources, of commerce and finance; and further, the significant
influence on state policy by those who rule the private economy, and who indeed largely
staff the government. As already noted, elements of the private autocracy who have a specific
concern with foreign affairs will naturally tend to use their power and influence to direct state
policy for the benefit of the interests they represent, regardless of social costs. Where they
succeed, we have imperialist intervention, quite commonly.
58 R. Y. Jennings, ‘Progressive Development of International Law and Its Codification’, 24 British
Yearbook of International Law (1947) 301.
59 See, O. Yasuaki, ‘International law in and with International Politics: The Functions of
International law and International Society’, 14(1) European Journal of International law (2003)
105–137.
68 Prabhakar Singh
says Ram Prakash Anand, has been woefully deficient.60 It is ‘[a] jungle law
imperfectly ameliorated by a fragmentary and hesitant progress in the direction
of a legal order.’61 This observation is important to examine given the fact that
establishment of tribunals and courts by the UN have been a recurring feature.
Long periods of war and conflict, whether in the Middle East or Africa, have
always been punctuated by the setting up of an adjudicatory body. The ‘rule of
law’ has never been an actual and true rule of law; from the time colonisation
began to the beginning of 21st century the
. . . [q]uantity and type of formal law in a given society has virtually
no bearing on the level of orderliness or violence in that society.
What Americans call the rule of law is a particular set of cultural
commitments that has little to do with formalistic structures, and this
means that promoting the rule of law is essentially a project of norm-
creation, rather than a project of legal formalism.62
The post Second World War universalisation of international law under the United
Nations was de facto a result of increased political insecurity among the leading
European coloniser states rather than a recognition and respect for the other Asian
and African sovereigns and cultural pluralism. The impending scare of masters
turning into slaves from the axis of evil worked as the adhesive force among the
colonisers and they worked out a plan to universalise international law to ensure
greater military security and cooperation. The formation of the UN was of course
the first step.
V. THE SOUTH AND INTERNATIONAL LAW
How can international law be possibly defined? ‘International’ in international law

imparts to this law a meta-national complexion. If the law purports to function in
the spirit of principles of justice, equity and good conscience then international
law ought to achieve the element of universality of application. There can be
true universality of application provided international law does not discriminate
between Asian, African or European states, on the grounds of culture, race,
language and dominant political ideology. But none can argue that the element of
universality of international law is as old as international law itself. It is actually
an outcome of the Second World War trauma of Europe. The leading coloniser
60 R. P. Anand, ‘Enhancing the Acceptability of compulsory Procedures of International Dispute

Settlement’, 5 Max Planck YB U.N. Law (2001) 1–20, at 2. See other relevant works of the
same author; R. P. Anand, ‘Attitude of the Asian-African States Toward Certain Problems
of International Law’, in F. Snyder and S. Sathirathai (eds.), Third World Attitudes Toward
International Law: An Introduction, Martinus Nijhoff (1987) 5–22.
61 Ibid; also see, Anand, ‘Attitudes of the Asian-African States toward Certain Problems of
International Law’, 15(1) International and Comparative Law Quarterly (1966) 55–75; Anand
‘Role of the “New” Asian-African Countries in the Present International Legal Order’, 56(2)
American Journal of International Law (1962) 383–406.
62 R. Brooks, ‘The New Imperialism: Violence, Norm and Rule of Law’, 101(7) Michigan Law
Review (2003) 2275.
states of Europe survived the scare of defeat and attempted vilification of political
sovereignty by the defeat of Adolf Hitler.
The colonial world had begun crumbling by the middle of the 20th century. The
decolonisation process in the post Second World War order led to the formation of
various new sovereign states in Asia and Africa. They were small, impoverished
and largely dependent upon their former colonial masters for aid to build up their
economy.63 Their legal system was the unasked gift of their ‘colonial past’ and the
new political heads of states sought to align themselves in the new international
order – largely because they were educated in Western institutions and they could
not imagine an indigenous and isolated political existence in an ever integrating
world. Robert Jackson has in particular described these new countries as ‘quasi-
states,’ having a ‘negative sovereign’64 as they exist more by the support and
indulgence of the international community than by the abilities and efforts of their
own governments and peoples. While investigating the international normative
framework that upholds sovereign statehood in the Third World he, therefore, finds
the third world sovereign a ‘negative sovereign’.65
A. ‘Absentee Colonialism’ and ‘Negotiable Sovereignty’: From

International Law to International Relations
As the territorial colonisation started to dissolve into oblivion, the new third world
began to prosper. The emergence of the ordinary third world masses as vibrant
political actors could not be overlooked and this led to the changing variables in
the equation of the West and the third world. The only tool for the governance
for the new masses was ‘development’ and not colonialism.66 Few authors,
however, suggest that though the colonisation is over empire is alive albeit in
new form.67
I have, however, discussed a subtle middle way between the options of
‘development and colonialism’ i.e. the rule by ‘absentee colonialism’ in the
contemporary political economy.68 The third world is politically independent;
63 See, P. Singh and V. Sterpos, ‘The WTO/GATT Regime: International Trade, Justice and Human
Rights: Southern Considerations’, 4 Sri Lanka Law College Law Review (2006) 140–156;
F. Whitcomb Aymar, Problems in Positive International Law, Nation Press (1926); also see,
G. Kreijen, State Failure, Sovereignty and Effectiveness: Legal Lessons from the Decolonization
of Sub-Saharan Africa, Martinus Nijhoff (2004) 232.
64 R. Houghwout Jackson, Quasi-States: Sovereignty, International Relations, and the Third World,
Cambridge University Press (1990) 26, 78.
65 R. Houghwout Jackson, ‘Quasi-States, Dual Regimes, and Neoclassical Theory: International
Jurisprudence and the Third World’, 41(4) International Organizations (1987) 519-549.
66 B. Rajagopal, International Law from Below: Development, Social Movements and Third
World Resistance, Cambridge University Press (2003) at 25; B. Rajagopal, ‘International Law
and Social Movements: Challenges of Theorizing Resistance’, 41(2) Columbia Journal of
Transnational Law (2002–2003) 397–433.
67 H. L. Wesseling, ‘Editorial: changing views on Empire and Imperialism’, 12(3) European Review
(2004) 267–271.
68 P. Singh, Supra note 21 at 226; also see, Claire Cutler, ‘Critical Reflections on the Westphalian
assumptions of international law and organization: a crisis of legitimacy’, 27(2) Review of
International Studies (2001) 133–50.
70 Prabhakar Singh
nonetheless it has never been allowed to function as a true sovereign. International

trade and commerce, being a powerful tool for prosperity have always been
used by the first world to interfere into the sovereignty of smaller and weaker
states.69 This has turned sovereignty into a negotiable instrument, which could be
bought for a price – like monetary aid through Bretton Wood institutions and a
possible licence to be part of an alliance featuring major first world nations like
the United States of America and Britain.70 International relations, therefore, are
the new defining forces in a rule by absentee colonialism and not international
law. The course of scholarly debate on ‘sovereignty and state’ has therefore
changed and the classic international law is gradually being replaced by a theory
of international relations that boasts of a much more sophisticated vocabulary than
diplomatic international law.71
The nature of international law has started to change; both because the new
education has given voice to original third world scholarship and the economic
euphoria of the Asian countries has created new relations. It has, therefore,
changed the political and diplomatic behaviour of the West for the East. Rajagopal
says that
new international law, with its focus on the status of individualism
and truly global community, was seen as constituting a clean epi-
stemological break with the pre-war international law’s subservience
to power and ethnocentrism . . . [t]he new international law was as
much up in the discursive and ideological embrace of modernity, as
the pre-war colonial international law, mainly through the institutions
and practices of development which were invented after the war to
control, manage, order, and reproduce social reality in the so-called
third world.72
The symptoms could be easily seen. The ILO banned slavery and forced labour in
the inter-war period. ‘The “new” international law of human rights had decisively
transcended the “old” international law of sovereignty which had been tainted
by, among other things, colonialism’.73 It is, however, interesting to note that
two particular kinds of European historical events have influenced the making
of international law, namely: war and international trade. I do not intend to argue
that war has been an exclusive European phenomenon. But trade wars have played
69 P. Singh, Supra Note 4 at 138.

70 After the terrorist attack of 9/11, America forged an alliance to declare a war against terrorism.
India and Pakistan both became so called strategic partners to this. After, a Military Coup in 1999,
a democratically elected government in Pakistan was removed by army general Parvez Mussaraf.
Now, it would have been difficult for America to operate within Pakistani Territory in search for
possible terrorists had there been a legitimate democratic government. A military government
could always be bought for a currency. Here, international relations become the defining force of
a government and not international law. The level of interference is also very high.
71 J. Goldsmith and E. Posner, The Limits of International Law, Oxford University Press (2005).
72 Rajagopal, Supra Note 66 at 27.
73 L. Sohn, ‘The New International Law: Protection of the Rights of the Individuals rather than the
States’, 32(1) American University Law Review (1982) at 1.
a pivotal role in the making of international law. Both trade and war might seem
two opposite kinds of situations, nevertheless, they are related.
Traditionally war and trade have been treated as antithetical to the cause of
international relations. But Grotius’ international law was primarily based on the
theories or conduct of states due to war.
The jurists and scholars of the 17th century had to answer questions which were
never raised before. Legal theorists came across new forms of conflict, concerning
explicit commercial competition among the ‘civilised’ European countries, which
were manifested in terms of violent confrontations between private merchants
pursuing private commercial trade interests.74 The very origin of international law
was private interest. No wonder the same international law was later used for the
private commercial interest of the coloniser nations.
In order to salvage the damage done by colonialism, various scholars from the
West and East have forwarded an academic scheme of an international social and
political order. In the Indian context B. S. Chimni has forwarded an Alternative
vision of a just world order.75 These varied perspectives, in the absence of
any systematic contemporary thinking in the literature on international law and
institutions, are germane to understanding the response of the southern state and
its people to issues relating to globalisation, international law and international
institutions.76
B. The Construction of ‘Antithetical’ International Law Soveriegn

The possible agenda behind the rigorous positivism resurrected in the area
of international law was to legitimise servility and subjugation of those who
were not so ambitious and assertive in terms of defining the territorial and
geographical limits of existence and cultural expansion. The Asiatic values
comprise collectivism and group interest instead of individuality and this was true
for Asian states and society as well.77
Taking the Indian example where the ancient tradition of Vedas and Puranas
taught the Indians to treat the entire ‘earth’ (Vasudha, the Sanskrit equivalent
for earth) as home and everyone living on it as relatives (Kutumbakam, Sanskrit
equivalent for relatives), the positivism of the state authority structure could not
have survived. In light of such teachings, the international law that existed in
74 Ibid at 803.
75 B. S. Chimni, ‘Alternative Vision of World Order: Six tales from India’, 46(2) Harvard
International Law Journal (2005) 389–402. This article outlines six Indian visions which have
dominated the academic and political discourse in India: Leftist, Dalit, Subaltern, anti-modernist,
and spiritual. In this article, Chimni cites his other works published in various journals to qualify
himself as the regular Indian voice on this topic. They are: Chimni, ‘International Institution
Today: An Imperial global State in making’, 15(1) European Journal of International Law
(2004) 1–37; Chimni ‘An outline of a Marxist Course on Public International Law’ 17(1)
Leiden Journal International Law (2004) 1–37; Chimni, ‘Teaching, Research and Promotion
of International Law in India: Past, Present and Future’, 5(2) Singapore Journal of International
and Comparative Law (2001) 368–87.
76 Chimni, Ibid at 389.
77 The Encyclopedia of Politics: The Left and the Right, Vol. 1, Sage (2005).
72 Prabhakar Singh
the Vedic India was actually a ‘natural international law’,78 which advocated the
equitable distribution of natural resources building a culture of assimilation rather
than that of military and political subjugation and territorial conquest. The entire
Vedic vocabulary denies entry to ‘positivistic principles’ and promotes natural law
morals and values.79 Describing particularly the Hindu Humanitarian laws, Surya
Subedi has cited non-aggression and defence as the only just cause to declare a
war on another state.80
The entire cultural fabric of eastern civilisations rests upon the rules of
administration and governance that denounces subjugation of kings by kings, or
sovereign by sovereign. Even the expansion of empire by a Hindu King in ancient
India to become a Chakravarty was done by performing Rajasuya Yajana. It was
done without interfering into the sovereignty of the defeated state.
In the invented tradition of international law positivism, the difference
of cultures was excessively highlighted by European scholars like Westlake
to prepare the grounds for positivistic resurrection of ‘sovereignty’ as the
tool to classify the ‘haves’ and ‘have-nots’ of sovereignty – by ‘using the
conceptual tools of positivism, [colonisers] postulated the gap, understood
principally in terms of cultural differences, between the civilized European
and uncivilized non-European world.’81 By introducing the tools of religious
conversion to Christianity, the ‘natives’ and aboriginals were introduced to a
‘cultural comparison’ – ‘[s]overeignty became identified with a specific set of
cultural practices to the exclusion of “others” ’.82 The Western counterpart was
definitely superlative in terms of technological and scientific discoveries and
inventions.83 For the next two and half centuries in Asia and Africa, the Europeans
set upon themselves the task to identify the paucity of Eastern cultures and preach
78 T. L. H. MacCormack and G. J. Simpson, The Law of War Crimes: National and International
Approaches, Martinus Nijhoff (1997) at 35.
79 S. Subedi, ‘The Concept in Hinduism of Just War’, 8(2) Journal of Conflict and Security Law
(2003) 339.
80 The concept of ‘Panchsila’ between India and China offers the Western world a glimpse into the
concept of sovereignty derived from Hinduism and Buddhism. Since China and India are among
the most culturally diverse and value-laden representatives of Asian cultures. The ‘Panchsheel
Principles’ are a good example from which to derive the Asian international law based on Natural
Law Principles. When an independent India and a post-revolution China were in their infancy,
they devised quite an innovative Asian approach, known as the ‘doctrine of Panchsheel’ deeply
rooted in their ancient history and culture, to govern their internal and bilateral relations. In a
1954 treaty between India and China, they agreed to the following Five Principles of Peaceful Co-
existence: Mutual respect for each other’s territorial integrity and sovereignty, Non-aggression,
non-interference in each other’s internal affairs, Equality and mutual benefit, and Peaceful co-
existence. These principles have not only been central in the governance of relations between
nearly one-third of the world’s population rather ‘Panchsheel’ became the main force behind the
Non-Aligned Movement. See speech by Former President of India, K. R. Narayan, ‘The 50th
Anniversary of Panchahseel’, 3(2) Chinese Journal of International Law (2004) 369.
81 A. Anghie, ‘Finding the Peripheries: Sovereignty and Colonialism in Nineteenth – Century
International Law’, 40(1) Harvard International Law Journal (1999) 1–80, at 5.
82 See Ibid, (emphasis supplied); also see, T. Ansah, ‘A Terrible Purity: International Law, Morality,
Religion, Exclusion’, 38(1) Cornell International Law Journal (2005) 9–70.
83 Now there is a lot of material detailing with ancient Chinese legal system. See M. Macauley,
Social Power and Legal Culture: Litigation Masters in Imperial China, Stanford University Press
(1998). A reading of the book offers, in great detail, the complete culture of litigation in China,
the comprehensibility of European culture and religion. In the same regard, some
authors have discussed the intervention of the United States in Afghanistan and
Russia in Chechnya in the name of rescuing peace as the endeavour to restore geo-
political and economic interests.84 These are certainly two excellent examples of
rule by absentee colonialism.
Sovereignty in the true sense meant the absolute empowerment of the
state. But the cultural difference between the ‘others’85 and the ‘selves’ was
used by colonisers to construct a sovereign rather antithetical to the original
conceptualisation of sovereignty by Hobbes and Austin. The Asian and African
sovereign was ‘alienable’ and ‘subjugatable’. The European colonial minds used
the ‘cultural constructions’ to reinvent positivism in international law and tailored
the definition of sovereignty that fitted their imperialist designs and promoted
colonial subordination. Therefore, traditional international law has been notorious
for the ease with which it sanctioned violence against non-Western masses.86 The
tool of cultural comparison was highly effective in creating a hierarchy of cultural
and political existence in a world that is home to people of various races and
religions. The industrial revolution and scientific development of Europe was
effectively used to dominate and discriminate against ‘other’ civilisations. The
political and cultural by-product of imperialism discarded the ‘other’ histories of
international law prevalent in Oriental civilisations.
C. Addressing the Question of ‘Other Culture’ and the Justice Deficient of

Positivistic Sovereigns
The cultural comparison, I would suggest, was used as the most effective tool for
establishing the superiority of the existence and promotion of colonisation:
[p]ositivism legitimised conquest and dispossession . . . identifying

how notions of positivism and sovereignty were shaped by the
encounter . . . [the] universalisation of the European experience,
which is achieved by transmuting it into the major theoretical problem
though China along with Japan and Korea are known for their abhorrence to litigation. An Asian
scholar from Japan has invented a term called ‘aggressive Legalism’ to portray the growing
culture of participation in litigation. See, S. Pekkanan, ‘Aggressive Legalism: The Rules of the
WTO and Japan’s Emerging Trade Strategy’, 24(5) The World Economy (2001) 707–737. The
debate was later followed by a Chinese Scholar; H. Gao, ‘Aggressive Legalism: The East Asian
Experience and Lessons for China’ in H. Gao and D. Lewis (eds.) China’s Participation in WTO,
Camaron May (2003). Though, aggressive Legalism only talks about the increased legalism with
WTODSB, it is nonetheless remarkable, as these nations have covered a long journey in terms of
building a ‘legal culture’, more appreciable in European and American terms.
84 S. Byrne et al ‘Russia’s Chechnya and America’s Afghanistan: Geo Political Interests in the
Caspian Region and International Humanitarian law’, 18 Sri Lanka Journal of International Law
(2006) 41.
85 See, T. Ruskola, ‘Legal Orientalism’, 101(1) Michigan Law Review (2003) 179–234, at 182.
86 Rajagopal, supra note 66 at 11; see G. Kreijen (ed.) State, Sovereignty, and International
Governance, Oxford University Press (2002).
74 Prabhakar Singh
of discipline, [had] the effect of suppressing and subordinating other

histories of international law and the people to whom it has applied.87
The resurrection of positivism in international law legitimised the denial of
political self-determination to the colonised native sovereign: like the ‘racial
inferiority’, the sovereign constituting of inferior races, was made to hierarchies
below the white European sovereignty. Just to show, as an example, how
positivism in international law functioned in the early 20th century, Amos Hershey
wrote in the American Journal of International Law in 1911:
The succession may be called ‘Universal’ in case of total absorption,
whether through voluntary agreement, forcible annexation or
subjugation, division of a state into several international persons, or
union of a several states into single international person . . . in case
of total extinction and absorption or incorporation, the authorities are
generally agreed that the annexing or absorbing state succeeds in the
main to the rights and obligations of the extinguished state.88
The recognition of such rights of conquest is completely contrary to the very
principle of law as it legitimises outcomes dictated by power rather than legal
principles. The concept of legality in colonialism was put to use in such a way
that it had to stand upside down. Morgenthau also advocates for a science of
international law89 as even the laymen have been able to locate the gap between
the practice and theory of international law. However, as argued elsewhere,
[w]hen asked, which is more primal between ‘morality’ and ‘legality’.
To say ‘legality’ precedes ‘morality’ would be preposterous. Legality
is the product of artificial inventions of systems to regulate the life
of man, which lacked ‘politics’ . . . therefore ‘politics’ and ‘legality’
are ‘time twins’ . . . assigning wide powers to the government can
only be judged from the touchstone of ‘welfare’ and as soon as
‘welfare’ comes into picture . . . morality and not legality is the
measuring rod . . . it brings out the inherent incapacity of ‘legality’
to measure welfare . . . rather ‘legality’ was the tool later used by
the . . . contractual sovereign . . . to cover up their misdeeds by trying
to replace ‘morality’ by ‘legality.90
Naturally, as can be derived from the last line of the above quotation, it was the
positivistic interpretation of international law that promoted ‘Nazism’ in Germany
and ‘Fascism’ in Italy.91 Sovereignty was not a function of higher morality as
87 Ibid at 7.
88 A. Hershey, ‘Succession of States’, 5(2) American Journal of International Law (1911) 285–297.
89 H. Morgenthau, ‘Positivism, Functionalism, and International Law’, 34(2) American Journal of
90 P. Singh, supra note 38 at 42; J. Shen, ‘The Relativity and Historical Perspective of the Golden
Age of International Law’, 6(1) International Legal Theory (2000) 15–34.
91 Lon Fuller, by his writings in 1940 accused positivism of the chief reason behind the rise of
Facism in Europe. See, L. Fuller, The Law In Quest of Itself, Foundation Press (1940). Also,
propounded by natural international law scholars in an attempt to assimilate the

natural law and positive law in international law debate – rather there never was
a case of overarching natural law with a high dose of morals that could bind and
guide the state. The sovereign was the highest authority to decide what was wrong
and what was right – it could not be questioned by anyone.92
D. The Soviet Nature of Sovereignty and State

In this article, wherever the term the European sovereign is used, it excludes
the Soviet conceptions of state and sovereign. Mintauts Chakste, former justice
of Supreme Court of Latvia elaborates the ‘point of departure in settling most
questions that concern the international relations93 . . . Soviet theory has developed
a concept of state of its own which substantially differs from the traditional
ones . . . [t]his theory considers international law as being a form for realization of
collaboration among peoples’.94 The Soviet concept of sovereignty is important
to discuss since, in form and political approach, it is more natural than positivistic
as compared to other European notions of sovereignty.95 It has been defined as the
legal and actual form of the states in carrying out its functions, and its economic
independence as the basis of real independence is particularly stressed.96
According to Prof. Korovin,97 Colonel of Justice and lecturer on international
law in the Red Army, ‘the force and importance of the Soviet international law
A. Sebok, Legal Positivism in American Jurisprudence, Cambridge University Press (1998) at

21, 22. Hyek argued that the command theory of law at the centre of positivism legitimised the
removal of all constraints on the state and dismissed the idea of the rule of law as a metaphysical
superstition; positivists prepared the way for Fascism and Communism. See, F. Hayek, The
Constitution of Liberty, University of Chicago Press (1960). But ‘communism’ as a social and
political construct seeks to dissolve the legal fiction of ‘sovereignty’ – as it seeks to attain the rule
by people and not a ‘positivistic sovereign’. See, J. Přibáň, Dissidents of Law, Ashgate, (2002)
at 88, 89. Therefore on these grounds, the American accusation on positivism for development
of communism needs to be examined cautiously. For a debate on Lon Fuller’s critique of legal
positivism see B. Bix, ‘Natural Law: The Modern Tradition’ in J. Coleman and S. Shapira (eds.)
The Oxford Handbook of Jurisprudence and Philosophy of Law, Oxford University Press (2004).
92 There has been a whole series of debates on the natural and positive laws of various European
and American jurisdictions in the American Natural Law Forum. Some of them are: R. Pound
‘Natural natural Law and Positive natural Law’ 5 Natural Law Forum (1960) 70, G. Dietze,
‘Natural Law in the Modern European Constitutions’, 1 Natural Law Forum (1956) at 73, L.
Jacques ‘Suggestions for Clarifying Natural Law’, 2 Natural Law Forum (1957) at 66.
93 M. Chakste, ‘Soviet Concept of state, International Law and Sovereignty’, 43(1) American
Journal of International Law (1949) 21; After the formation of European Union by the Treaty
of Maastricht, there is a debate in Europe about ‘post – sovereignty’. See, N. MacCormik,
Questioning Sovereignty: Law State and Practical Reason, Oxford University Press, (1999). This
book outlines the important debate on ‘post sovereignty’, devolution and nationalism in Britain
and Europe. It enquires into the question of ‘Rechtsstaat’ or rule by law.
94 Ibid at 29.
95 K. R. Plawker, ‘The Soviet Contradiction: Socialist Federalism and the Freedom of Secession’,
9(2) Wisconsin Journal of International Law (1991) at 169.
96 J. Quigley, ‘The Soviet “New Thinking” in International Law: An Opening to End The Cold
War?’, 8 (1) Wisconsin International Law Journal (1989) at 97.
97 E. A. Korovin, ‘The Second World War and International Law’, 40(4) American Journal of
International Law (1946) 742–55; For a detailed study of all the aspects of jurisprudence see
W. Morrison, Jurisprudence: From Greeks to Post Modernism, Cavendish Publication (2005),
76 Prabhakar Singh
practice lies in that both as a whole and in each individual step it is not a tactical
manoeuvre or a tribute to a transient situation but follows from the very basic and
nature of the Soviet state as an advanced state, as a truly peoples’ democratic state,
a fraternal union of free man and free peoples . . . Precisely because of this the
Soviet state can take the lofty task of politically educating its people in the spirit
of defending the interest of peace, in the spirit of establishing firm friendship and
effective collaboration among the people’.98 Some contemporary writers have also
come up with the reconstruction of international law with Scandinavian Realism
of Alf Ross.99 Thus the Soviet conceptions of state and sovereignty were anti-
colonial and talked more in terms of cooperation between states. Such conceptions
of state and sovereignty that do not believe in the power and cultural hierarchy of
states are germane to a just world order.
A universal application of natural law would not differentiate between civilized
and uncivilized. Such an international law would not appreciate the cultural
differences and thereby natural law was unable to carry on the emerging European
agenda of ‘colonisation’. Gradually, the positivistic interventions were sought
in international law and the morality content, an integral part of natural law
scholarship, was operated out of the body of international law.
The commercial intercourse, which was the primary excuse for the
interaction between European and non-European states, had actually led to the
imposition of European sovereignty over the so-called uncivilised non-Europeans.
Positivistic sovereignty was used to legitimise the colonization process. Therefore,
colonialism was the ‘process by which Asian and African Societies were made to
comply with European standards as the price of membership into the family of
nations.’100
E. Narcissistic International Law Positivism and the Exclusion of ‘Others’

The uncivilised non-European states were excluded from the narcissistic and
positivistic construction of international law, like morality and universality were
excluded in the determined province of laws properly called. I choose the term
‘narcissistic’ because the 20th century positivism of international law scholarship
declared itself superior to all that was non-European. The ‘others’ had no case
for equality of treatment. The Western proclamation of cultural superiority was
reflected in the changing nature of international law and sovereignty – by donating
also R. Wacks, Understanding Jurisprudence: A Introduction to Legal Theory, Oxford University

Press (2005).
98 Ibid.
99 A. Escorihuela, ‘Alf Ross: Towards a realist critique and reconstruction of International law’,
14(4) European Journal of International law (2003) 703–66.
100 Anghie, supra note 81 67, also see, R. Gordon, ‘Saving Failed States: Sometimes A
Neocolonialist Notion’, 12(6) American University Journal of International Law & Policy (1997)
at 903; G. de Burca and O. Gerstenberg, ‘Comparative Visions of Global Public Order (Part 2):
The Denationalization of Constitutional Law’, 47(1) Harvard International Law Journal (1995)
243–262.
a false universality to the Western notion of the sovereign. International law

was the creation of a unique, prudent and civilised society of the West and
therefore those who were uncivilised never actually had a claim for a ‘sovereign’
in positivistic terms. They could not claim the equality of treatment alongside the
European sovereign.
This logic of positivism in determining the province of international law was
good enough to justify interference in the ‘uncivilised world’ and therefore the
cultural imposition. It was at this point that ‘racialism’ became an important
factor in the construction of positivistic international law. The positivists like
Westlake,101 promoted the agenda of positivism by making the ‘society’ instead
of the ‘sovereign’, the springboard of debate. The existence of natural law, which
could be applied universally – and thus non cognitive of ‘civilization barrier’,
– was shot down, to promote a kind of international law that could justify
colonialism. Therefore, the epistemology of positive international law radicalised
the divide of the East and the West on sharp cultural lines.102
The violence of positivist language in relation to non-European
peoples is hard to overlook. Positivists developed an elaborate voc-
abulary for denigrating these peoples, presenting them as suitable
objects for conquest, and legitimising the most extreme violence
against them, all in the furtherance of the civilizing mission – the
discharge of white man’s burden.103
In the positivistic construction, the society soon became the central moot point.
The society and not the sovereign could be the determining factor: whether the
Asian and African countries could be treated as part of the international society
of states.104 Rather a race of savage people, that looked ugly mostly because of
darker skin, and acted ugly, quite obviously could not be made part of a white
sovereign campaign. This ‘narcissistic positivism’ of international law where
Europe only appreciated the ‘Europeans’ was the leading force for colonisation,
with the effective help of technology in terms of arms and battle skills. In this
concept of ‘narcissistic positivism’, only that belonging to Europe was adored, all
101 J. Westlake, supra note 15 at 63.

102 See, A. Anghie, Imperialism, Sovereignty and the Making of International Law, Cambridge
University Press (2005) at 67, 68; also see, C. Miéville, Between Equal Rights: A Marxist Theory
of international law, Brill Academic Publishers (2005) 241; W. Menski, Comparative Law in a
Global Context: The Legal Systems of Asia and Africa, Cambridge University Press (2006) at
445. The not so recent text deliberating the Grotius’ international law is, P. P. Remec, The Position
of the Individual in International Law According to Grotius and Vattel, M. Nijhoff (1960).
103 Anghie, supra note 81 at 7; also see M. Sornarajah, ‘Power and Justice: Third World Resistance
in International Law’, 10 Singapore Yearbook of International Law (2006) 19–57.
104 Angie cites the example of tribal people and aboriginals as non-existent in international law. This
according to him was because the tribal society was almost value-less and uncivilised. See Supra
Note 81 at 26, see the works of Anand for a developing country perspective; R. P. Anand, New
States and International law, Vikas Publishing (1972); R. P. Anand, International Law and the
Developing Countries: Confrontation Or Cooperation?, Martinus Nijhoff (1987) at 72; also see,
C. Oguamanam, ‘Indigenous Peoples and International Law: The Making of a Regime’, (2004)
30(1) Queen’s Law Journal 348–399.
78 Prabhakar Singh
that pertained to the ‘other’ culture was discarded. Although this is one area which
has inspired fierce decade in the recent past, the question of the return of cultural
objects is not a new one.105
VI. CONCLUSION
It is remarkable to note that, after the composition of the ICJ was changed
by inducting non-European judges, the Court started respecting the natural law
aspect of international law as is evident from its judgements and advisory
opinions, particularly those delivered by third world judges. The later cases, in
which the ICJ gave an advisory opinion or decided, reflected an acceptance and
application of international law that was not entirely ‘Western’. The ancient tenets
of international law, offered by Hinduism, Buddhism and Islam brought into light
by scholarly works from Asian and African thinkers enriched and supplemented
an otherwise ‘Western Construct’. The international legal community has come
a long way in appreciating the ‘other’ in international law from what Henry
Wheaton once thought about the non European nations: the ordinary jus
gentium . . . is applicable to a distinct set or family of nations’106 . . . ‘international
law of civilized Christian nations of Europe and America is one thing; and that
governs intercourse of the Mohammedan nations of the East with each other and
with Christians is another and very different thing’.107
Other English authors like Travers Twiss have also written on the international
relation of the Mohammedan world.108 He talks about the identical nature of law
of the rude and civilised nations109 and the growth of the positive law of nations.110
The studies in international law in those times are replete with racial vocabulary
of distinction of Western and Eastern States. The terminologies used to identify
the states are ‘civilised’ and ‘savage’ societies.111 The issue of such a construct is
105 S. Pahuja, ‘The Postcoloniality of International law’, (2005) 46(2) Harvard Journal International
Law 459–470; A. F. Vrdoljak, International Law, Museums and the Return of Cultural Objects,
Cambridge University Press (2006) at 47; This important book explores the removal and the
return of cultural objects from occupied communities from the nineteenth century to the twentieth
century and explores the concurrent evolution of international cultural heritage law. Examining
the responses of governments and of museums to the question of restitution, this book is essential
reading for archaeologists, international lawyers and all those involved in cultural resource
management. Also see, P. Hanafin, A. Gearey, J. Brooker, Law and Literature’, Blackwell
Publishing (2004) at 81, K. Knop, Diversity and Self-Determination in International Law,
Cambridge University Press (2002).
106 Wheaton, supra note 1 at 44.
107 Ibid at 47; see G. Abi-Saab, ‘International Law and the International Community: The Long
Road to Universality’, in R. St John MacDonald (ed.) Essays in Honor of Wang Tieya, Martinus
Nijhoff (1994).
108 T. Sir Twiss, The Law of Nations Considered as Independent Political Communities: On the
Right and Duties of Nations on the time of Peace, University Press Oxford (1861) at 82.
109 Ibid at 119.
110 Ibid at 120.
111 Ibid at 120.
based upon the fact of knowledge production,112 i.e. which knowledge is superior:
Eastern or Western. For me, knowledge is a cultural construction and therefore
the knowledge of a particular culture can best solve the disputes of that particular
culture.113 The ‘Wretched of the Earth’, however, found an echo of their voice in
the third quarter of the 20th century, when scholarly works of the French author
Frantz Fanon114 sociologically analysed the colonial society and imperialism.
Justice Christopher Gregory Weeramantry, former Vice President of the ICJ,
has particularly discussed the influence which the new scholarship from the non-
Western world, of which he himself is a part, had on the construction of modern
international law.115 Edward Said, nonetheless, remains the most influential writer
in the sociological inquiry of imperialism and culture, whose book Orientalism
has been the most acclaimed postcolonial work on this issue.116
Justice Weeramantry has been an important figure in the development of
international law as a ‘Global Construct’. He refers to an Arabic Jurist, Shaybani
Muhammad ibn al-Hasan, whose writings were known to Christian Europe. From
thereon, he declares international law as a ‘global construct’ rather than a ‘Western
construct’. Going to the specificity of the context of such an international law, he
highlights the examples from Buddhism and Hinduism.117 Tripitaka or teachings
of Buddha mention various kinds of violence – economic violence, psychological
violence, institutional violence, political violence, and defensive violence.118 In
an advisory opinion sought by the General Assembly on the Legality of Nuclear
Weapons, Justice Weeramantry cited the specific teachings from Hinduism, about
prohibition of hyper destructive weapons.119 Pointing to the cultural and equity
112 G. J. Sefa Dei and A. Kempf, Anti-Colonialism and Education, Sense Publishers (2006). This
study provides salient vantage about education as an anti-colonial project and offers powerful
insights into the politics of colonialism and anti-colonialism as they are contested in education
and society.
113 For a debate on knowledge economies see, P. Wignaraja, Pro-poor Growth and Governance in
South Asia, Sage Publications (2004).
114 See, C. Farrington (trans), The Wretched of the Earth by Frantz Fanon, Grove Press (1964) at
206.
115 C. Weeramantry (ed.) ‘Some Buddhist Perspectives on International Law’ in Boutrous Boutrous-
Ghali: Amicorum Discipulorumque Liber, Bruylant Publishers (1998) at 775; another piece
on Islamic law and imperialism is J. Collier, ‘Intertwined Histories: Islamic Law and Western
Imperialism’, 28(2) Law and Society Review, (1994) 395–408.
116 E. W. Said, Orientalism, Pantheon Books (1987); also see, Said, Culture and Imperialism, Alfred
A. Knopf (1993); also see, T. Mitchell, Colonizing Egypt, Cambridge University Press (1991);
A. Nandy, ‘Imperialism as Theory of Future’ in B. Hamm and R. Smandych (eds.), Cultural
Imperialism: Essays on the Political Economy of Cultural Domination, Broadview Press (2005).
See, G. Chakravorty Spivak, A Critique of Post Colonial Reasons, Harvard University Press
(1999).
117 C. Weeramantry, ‘International Law and the Developing World: A Millennial Analysis’, 41(2)
Harvard Journal of International Law, (2000) 277–86, at 282.
118 Ibid at 282; In Colombo, Sri Lanka, the Weeramantry International Centre for Peace Education
and Research has been established to promote, I believe, the Weeramantry’s School of thought.
It can be seen at http://www.wicper.org/ (visited on 11th March 2007).
119 Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, ICJ Reports (1996);
also see C. Weeramantry, Nuclear Weapons and Scientific Responsibility, Longwood Academic
(1987); also see C. G. Weeramantry, Justice Without Frontiers: Protecting Human Rights in the
age of Technology, vol. 2, Martinus Nijhoff (1997).
80 Prabhakar Singh
deficient of positivistic international law, Justice Weeramantry says that the

unilateral development of international law suffered from the
. . . [n]eglect of other culture . . . [international law was] largely
a monocultural construct . . . there was also a neglect of . . . the
natural law background from which international law had its
beginning . . . scientific progress had attracted great admiration . . . and
the law, in imitation of science, wished to vein itself as a scientific and
objective discipline.120
Various kinds of injustices that prevail in the third world need to be addressed by
the new international law – the injustice of formal justice, economic, distributive,
cultural, environmental and industrial injustice.121 In the postcoloniality of
international law, from the very beginning international law had to posit, contain
and differentiate between selves and others.122 For all the positivistic constructions
of international law, the Asian and African remained ‘others’.
We must decide between the myth of universality and nihilism of

cultural relativism; the oscillation should be understood and embraced
as symptomatic of the post-colonial quality of law and the radical
impossibility of closure it generates.123
The UN General Assembly, in 2001, requested the International Law Commission

to study the issue of fragmentation in international law. The study group chaired
by Prof. Martti Koskenniemi produced a 250-page report plus a set of conclusions
drawn from international practice with relevance to the question of international
law’s break-up into specialised ‘boxes’ of functional differentiation.124 Since the
Second World War international bodies have been more exposed to the cultural125
and social pluralism of the world, the sources upon which they draw have changed.
The decisions of the ICJ have shown a marked reference to the ancient laws
of Hinduism, Islam and Buddhism as discussed above. It is no more simply a
‘Western’ construct.
120 Weermantry, supra note 117 at 278; List of publication of Justice Weeramantry can be seen at
http://www.wicper.org/Judge’s%20CV.htm (visited on March 11th 2007).
121 Supra note 117 at 284; also see, A. Anghie and G. Sturgess (eds.), Legal Visions of the 21st
Century: Essays in Honour of Judge Christopher Weeramantry, Martinus Nijhoff (1998).
122 Pahuja, Supra Note 105 at 462.
123 Ibid at 468.
124 Fragmentation of International Law. Problems caused by the Diversification and Expansion of
International law, Report of the Study Group of the International Law Commission finalised by
M. Koskenniemi A/CN4/L.682 (13 April 2006) (Analytical Report). The way allegedly ‘self-
contained’ regimes link to general international law is discussed at 65–101. The 42 conclusions
prepared by the Study Group on the question of fragmentation on the basis of the ‘Analytical
Report’ are contained in ‘Fragmentation of international law: difficulties arising from the
diversification and expansion of international law: Report of the Study Group of the International
Law Commission’ A/CN.4/L.702 (18 July 2006) (Conclusions) 7–25.
125 See, Y. Atal, ‘Outsiders as Insiders: The Phenomenon of Sandwich Culture’ 38 Sociological
Bulletin (1989) at 23.
But the establishment of a variety of world courts have brought with them the
problem of indetermination of international law. I think that the fragmentation of
international law is a step towards the construction of a true international law.
It is simply a crisis of a nascent and newly de-colonized international law. The
establishment of subject-specific bodies and courts, therefore, may raise issues of
‘managerial mindset’126 whereby the division of international law into specialised
bodies of law has subjected international law to fragmentation.
This play of narratives of unity and fragmentation is quite central for
the self-understanding of Western law, often expressed in the tension
between historical ‘positivity’ and rational ‘system’. Developments
in seventeenth century law were told as a story about progress
from civil war to the unified nation as well as descent from the
Christian community to sovereign states. Eighteenth century natural
jurisprudence – Samuel Pufendorf in Germany, Adam Smith in
Britain – turned the Reformation fear of individualism and human
self-love into a scientific explanation for enlightened absolutism on
the one hand, and the wealth of nations on the other, while the Kantian
postulate of the ‘unsocial sociability’ from 1784 remained the last
refuge for the faith of many a liberal internationalist until well into
the twentieth century.127
Fragmentation and unity are matters of narratives.128 But given the fact that these
international courts and tribunals now have greater representation from third world
countries, more than ever, the decisions by them will help to dilute positive
international law and make international law truly natural.
International law, I conclude, should be allowed to assimilate the natural law
aspect to avoid its lopsided development. It is in natural law that we can find
the tenets that succour human kind, promote universal principles of equality and
justice: all that is needed to make international law truly ‘international’ and not
just a ‘European’ or ‘American’ construct. It is easier for those who hold power
in today’s world to create and deploy international law and facilitate the absentee
colonialism. We therefore cannot wait for international law to be rescued from
the corruptions of imperialism. Concerted efforts need be taken to decolonise
positivistic international law.
The history of the development of positivistic international law proves that
it can be used for various exploitative means. Given the fact that the law is a
126 M. Koskenniemi, ‘Constitutionalism as Mindset: Reflections on Kantian Themes about

International law and Globalisation’, 8 Theoretical Inquiries in Law (2007) at 9.
127 Koskenniemi, supra note 55.
128 M. Koskenniemi, From Apology to Utopia: The Structure of International Legal Argument,
Cambridge University Press (2005) at 474–512. Martti Koskenniemi, however, does not see
the positivism versus naturalism debate in international law as contradictory. He finds them
complementary. See, Koskenniemi, ‘The Civilizing Mission: International Law and Colonial
Encounter in Nineteenth Century’, Rechtshistorikertag, Bonn 12–17 September (2004). Also
see, Koskenniemi, ‘Nationalism, Universalism, Empire: International Law in 1871 and 1919’
Columbia University, April 29–30 (2005).
82 Prabhakar Singh
social, political and cultural construct, any one of the elements of construction
can be chosen as the point of distinction in a world where the difference of race,
colour, economy and power is a reality of postcolonial existence in the third world.
It has already been done in the past, as discussed in the paper, by the method
of positivistic international law in a ‘narcissist’ fashion of self appreciation and
discarding all that belonged to the ‘others’.
The history of the development of international law cannot be undone. What
can be done is to create a situation where the respect of historicity of law
can be insured. This reading of history should recognise the importance of the
existence of a parallel and equivalent civilisation in the non-Western world and the
recognition of values so integral to such civilisations. By debating the sociology
of international law and colonialism, my paper urges readers to take the idea of
colonialism in international law seriously. It is possible today to be called anti-
colonial which has been sanctioned and censored by the West as ‘proper.’ It is
possible today to live with an idea of an ‘Eastern’ international law constructed
by the West. Therefore, the indigenous voices of anti-colonial and universal
international law need promotion. The Eastern natural universalism, therefore,
needs promoters and sponsors. All that is anti-colonial in international law is not
universal and natural because not only did the West produce colonialism but also
the modern advocacy of anti-colonialism – the interpretation of interpretations, if
I may say so.

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FROM ‘NARCISSISTIC’ POSITIVE INTERNATIONAL

LAW TO ‘UNIVERSAL’ NATURAL INTERNATIONAL

16 RADIC (2008) DOI: 10.3366/E0954889008000066

A. Naturalism, Positivism and International Law

This article divulges the political and diplomatic aspects of ‘manufactured

II. COLONIALISM, EUROPE AND INTERNATIONAL LAW

First of all, it depended on the consistency between IL principles

III. THE INTERNATIONAL LAW POSITIVISM: THE EUROPEAN

manufactured legality of the colonisation project. The later positivists replaced

IV. IMPERIALISM AND INTERNATIONAL LAW

. . . [e]very other European nation recognises the true outline of

A. Post Second World War International Development or Fragmentation

V. THE SOUTH AND INTERNATIONAL LAW

How can international law be possibly defined? ‘International’ in international law

60 R. P. Anand, ‘Enhancing the Acceptability of compulsory Procedures of International Dispute

A. ‘Absentee Colonialism’ and ‘Negotiable Sovereignty’: From

nonetheless it has never been allowed to function as a true sovereign. International

69 P. Singh, Supra Note 4 at 138.

B. The Construction of ‘Antithetical’ International Law Soveriegn

C. Addressing the Question of ‘Other Culture’ and the Justice Deficient of

[p]ositivism legitimised conquest and dispossession . . . identifying

of discipline, [had] the effect of suppressing and subordinating other

propounded by natural international law scholars in an attempt to assimilate the

D. The Soviet Nature of Sovereignty and State

A. Sebok, Legal Positivism in American Jurisprudence, Cambridge University Press (1998) at

E. Narcissistic International Law Positivism and the Exclusion of ‘Others’

also R. Wacks, Understanding Jurisprudence: A Introduction to Legal Theory, Oxford University

a false universality to the Western notion of the sovereign. International law

101 J. Westlake, supra note 15 at 63.

deficient of positivistic international law, Justice Weeramantry says that the

We must decide between the myth of universality and nihilism of

The UN General Assembly, in 2001, requested the International Law Commission

126 M. Koskenniemi, ‘Constitutionalism as Mindset: Reflections on Kantian Themes about

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