International law is an ordering language. It is predicated upon an imperial, western-centric, and hierarchical structure. It is a language of domination, of exclusion, of differentiated inclusion, but also of promise. The universal aspiration of international law is by necessity a project of inclusion via subordination. When in the 16^th century Francisco de Vitoria recognised the natives as rational beings and thus members of the human community, he also meant that they were bound by the law of nations. As such, Vitoria was not merely extending international law outwardly to the Americas but rather legislating the very institutions of subordination that would bind the natives and subject them to legal and colonial domination.

Language holds the medium by which community belonging is exercised. One cannot therefore reject language per se. That is also true for the language that is international law. As such, the Third World did rather seek to contest and renegotiate the terms on which international law was established and continued to operate. As Anthony Anghie has demonstrated, over five centuries, the language of international law perpetuated the “dynamic of difference” that it was also supposed to bridge. The oscillation between “the logic of biology” and “the logic of improvement” is an endemic feature of the international legal order. In that sense, the language of international law, which the Global South uses and appeals to, does not simply hold the promise of rectification; it also reproduces the problems it is supposed to help solve. This short reflection addresses such contradictions and how reflexivity in international law could help mitigate them. It warns, however, that reflexivity must not be self-congratulatory in its celebration of progress at the expense of the wilful forgetting of the constitutive thread of colonialism, racism, and imperialism at the core of international law.

Sites of international law and colonial peripheries

The sites of international law (The Hague, Geneva, New York, Strasbourg, etc.) are hyper visible centres of diffusion and exercise of the international legal order. Such ordering, however, reposes on the invisibilisation of the peripheries, being the colonial periphery. The geography and epistemic constitution of international lawmaking and practice continue to restrain the possibility with which the global majority can speak, act, shape, and contest international law. For the colonial periphery, justice remains as distant as ever. Sovereignty demands a non-sovereign upon which the doctrine is held. The seeds of the negation of sovereignty are contained in the legal doctrine itself. Colonialism and colonial domination are built upon the constitutive definition and powers of self-determination.

Yet, as Karin Mickelson explains, for Third World scholars, the “tremendous faith” in the emancipatory potential of international law cohabits with an acute awareness of “the ways in which law has been made to serve the interests of the powerful”. The double bind in which Third World diplomats and scholars found themselves throughout the second half of the 20^th century was thus rejecting the colonial origins and legacies of international law and its Eurocentricity while at the same time harnessing the emancipatory potential of international law to materialise alternative visions of global order. In fact, Third World states have had no outside option from which to operate and contest the existing strictures of international law. And resistance must operate within the constraints of an option that is, in effect, impossible to reject. There is no exit button to international law.

The promise of reflexivity

Reflexivity calls for analyses of globalisation and the international legal order that are attuned to history, historical genealogies, and the epistemic geographies of international law. It may be tempting to celebrate the idea that progress has been made.  Yet it is also important to remember that international law progresses through a renewal by forgetting itself. Writing on a different discipline, International Relations scholar Sankaran Krishna called this “willful amnesia”. E. Tendayi Achiume and Debra Thompson referred to this process as “aphasia”, which is “a calculated forgetting and unwillingness to confront the persisting and imperial operation” of a discipline. International law is the epitome of such processes.

From natural law in the 16^th century to positivism in 19^th century’s international law, to the League of Nations’ mandate system to the postwar UN global governance, to the language of international development, good governance, human rights, and (inter)national security, international law morphs itself through the recycling of its narratives of exclusion and domination, its grammars and vocabulary of oppression, and its hierarchies of belonging. Each iteration of these developments of international law is couched in a mantra of progress while reproducing those colonial hierarchies.

Diplomats and scholars from the Third World have, for decades, emphasised the constitutive thread of colonialism, racism, and imperialism that sustains these continuities. When Judge Radhabinod Pal demonstrated in his monumental dissent at the Tokyo Tribunal how imperial power still governed the postwar order, when Judge Mohammed Bedjaoui linked the unjust international economic system to colonial plunder, when Judge Keba Mbaye argued that the right to development is a human right, when Third World states appealed to the concept of “the common heritage of mankind” as a principle for the governance of the seas, when the G77 pushed for an ICJ opinion on the unfinished decolonisation of the Chagos Islands, we are seeing international law as a continued site of struggle to infuse new meanings to old imperial structures, to displace the seats of imperial power for sites of more equitable predicates of global existence.  In that sense then, now more than ever, it urges to continue the questioning of the self-congratulatory premise of international law of a post-colonial world. That world – our world – is indeed still steeped in colonial conditions.

But it is not just a matter of procedural reforms and a better representation of the global majority in decision-making institutions. It is not just a matter of wrestling the power off the tentacles of global corporations and institutions that epitomised colonial domination. The question is not simply one of determining the optimal and equitable systems of rule-making in international law. It is not simply a matter of deciding whether majority voting or consensus building should govern deliberations and international lawmaking in international fora. Because in the end, sovereign equality of states is an illusion insofar as other pressure points are embedded in the international system. In a world of veto powers, weighted voting, unilateral sanctions, exterritoriality, and conditionalities, sovereign equality is basically what (powerful) states make of it.

Hoping against hope and working towards the promise

There is certainly a potential problem in looking too much into the history of international law to the point of curtailing its possible horizons. There is a range of possible futures. Indeed, international law still holds a promise. What is also clear is that the Global South has never resigned to leaving the future of international law in the hands of its western centres of power. But here also lies a tension. Between rejection and reform, the Global South continues to engage with international law. But it is not yet settled whether international law as an oppressive structure also holds available tools for genuine reform and evolution from its colonial legacy and imperial present. Does an emancipatory potential of international law indeed co-exist with its oppressive past and present? In the history and evolution of international law, as Anthony Anghie reminds us, “imperialism is a constant” (emphasis in original). While “the tremendous faith” in the emancipatory potential of international law is a required element for a continued engagement toward reform and repair, rejection of this legal order is also within the range of possible strategies.

In any case, assuming that the light at the end of the tunnel is not an incoming train, there must be an avenue between reform and rejection. But then it remains to address the question of whose task that is to pick up that struggle. What sorts of coalition building might be necessary to confront the colonial legacies of international law? What type of reflexivity might be required from those in the Global North and at the centre, from those who enjoy the privileges of being fully human? In the words of Frantz Fanon, “the huge task… of reintroducing… the whole of humankind” into the world would necessitate “the indispensable help… of the European peoples”, not because they are uniquely qualified, but because they “must realize that in the past they have often joined the ranks of our common masters where colonial questions were concerned”. As such, they “must first decide to wake up and shake themselves”. The Centre for Advanced Studies RefLex is an important and welcome step in that direction. This responsibility also falls unto a wider set of actors and institutions with shared and overlapping ethical and political agendas orientated towards justice, broadly defined.

In the work ahead, the main challenge is therefore to break from continued reification of the standard of civilisation and burdened membership in the international community. Better yet, to build that (yet to be) international community whose foundation must be the shared norm that imperialism is a crime. An initial step would be to realise that the promise of justice must not be the very device of its (perpetual) deferral.