June 12th 2024 | Max Readinger
Edited by Grace Ma
Introduction
For most, the 16th to 20th century Imperialism died a ceremonious death in the tumultuous years that followed the end of the Second World War. What imperialism meant underwent a fundamental change following the turn of the 21st century with the handover of Hong Kong and the War on Terror. What used to define imperialism in international law—concerns about the principles of self-determination, decolonization, and, above all, colonialism—have almost entirely been relegated to the fringes of international legal discourse.
To give imperialism a definition in the eyes of international law (a definition it sorely lacks), the best approximation for an “‘imperialist”’ state in this article (borrowing from International Politics Theorist Hans Morgenthau) is a state pursuing one or more of these goals [1]:
- Military Imperialism: The military conquest and/or territorial aggrandizement of land that the imperialist state has no prior ‘ties’ with. This is exemplified in establishing colonies on separate continents – as in the Scramble for Africa.
- Economic Imperialism: Exerting overwhelming economic power and control over another state or region. This could involve directly legislating another state’s economic policies or forcing monopolization in the state’s economy. Interference in another nation’s economy to the degree where said state could be constituted as a part of a broader ‘informal empire’ of economic control. This can be best exemplified by the Unequal Treaties imposed on China by the Western Powers [2].
- Cultural Imperialism: the conquest of the “minds of men” not affiliated with the imperialist power. It can involve the successful persuasion of members of the subject state that the imperialist’s culture is superior. Still, it is best epitomized by establishing a “fifth column” of ideological sympathizers. The Quisling Regime in Norway was the best example of cultural imperialism.
Imperialism and colonialism, under this definition, can therefore be seen as mostly a facet of the past [3]. For many international law academics, most imperialism effectively ended when the UN embraced the principle of self-determination. This “deterritorialized” [4] imperialism by giving “all colonial territories the right to independence” [5]. In line with its perceived “‘extinction,”’ “imperialism virtually vanished as an important issue for international law in the 1980s” [6].
For these academics, International law was the driving force of decolonization and the end of imperialism. The 1941 Atlantic Charter —a pseudo-legal agreement and one of the direct precursors to the United Nations—tentatively embraced the principle of self-determination, calling for
“the right of all peoples to choose the form of government under which they will live; and they wish to see sovereign rights and self-government restored to those who have been forcibly deprived of them” [7].
As the 19th century progressed, further international legislation became undeniably anti-imperialist. The 1960 UN Resolution on the Granting of Independence to Colonial Countries and Peoples made the UN’s stance against imperialism abundantly clear:
“(The UN) proclaims the necessity of bringing to a speedy and unconditional end colonialism in all its forms and manifestation” [8].
Debate in political circles still goes on to this day whether imperialism ever indeed ended, and what imperialism even is. To avoid political biases, and considering the relative importance that international law places on territorial control in its regard for imperialism, this article will deal with the aforementioned, deliberately narrow, definition of imperialism [9].
Is it appropriate to characterize international law as the “unimpeachably positive character” [10], or legal mechanism, that defeated imperialism? More importantly, should imperialism be considered a thing of the past in the eyes of international law?
This article will seek to answer these questions surrounding imperialism by comparing the dialect-based Orthodox school of thought around imperialism in international law to the opposing Heterodox Tradition. This article will examine examples from the past and present to do so.
By doing so, this article will present two inseparable conclusions:
Firstly, this article will present a rejection of the widespread belief that International Law was in any way anti-imperialist throughout history and in the present day.
Secondly, this article will argue that imperialism’s definition should be reconsidered in the interests of modern-day international law. Said redefinition should recognize imperialism’s continuing influence on international law and imperialism’s enduring presence in how states can (and have) used international law when conducting imperialist ventures.
Orthodox Narrative
The mainstream opinion, or Orthodox Tradition in International Legal discourse is that international law and imperialism were related by an “external mechanical confrontation model” that law either challenged or confronted the imperialist state or that the imperialist state disregarded the law [11]. Both international law and imperialism are portrayed as separate orders that operate within a fixed existence, and there is at the root “idea of inexorable historical trends” at operation, especially Hegelian ones [12]. Under this “Orthodox Tradition” umbrella lies a central narrative: The “Imperialism-as-European-Colonial-Rule tradition.” As explained by Rasulov:
“In the case of the Imperialism-as-European-Colonial-rule narrative, the predilection for the narrative progress typically plays out in the form of the standard Hegelian thesis: History is the movement from darkness and chaos towards enlightenment and order…it suggests that the fight against imperialism has already been won (and) promises that international law itself somehow stands against imperialism” [13].
The narratological basis of this viewpoint is clear. The strengthening of International law means weakening imperialism, and vice versa. This argument is nevertheless underlined with gross generalizations.
The Heterodox Tradition
The Heterodox tradition in International Legal discourse is concentrated around the basic understanding that international law and imperialism do not occupy a pluralist ‘confrontation model.’ Under the Hetorodox tradition, imperialism and international law are tied by the following assumptions:
Firstly, Heterodox scholars see economic and cultural coercion as central to imperialism and imperial governance (broadly in line with certain Marxist tenets). This would imply that economic imperialism is far more significant than military or cultural imperialism. In a way, imperialism is far more bound to capitalism’s law of motion rather than international laws [14].
Secondly, Heterodox scholars see constructivist principles as essential for understanding law and imperialism. They would claim that it is impossible to address imperialism and international law without seeing international law itself as a product of imperialism. The central claim can be broken down to the belief that “the European colonial venture in the age of New Imperialism both imposed and created international law” [15].
Put more simply, under Heterodox beliefs, international law itself is a “fundamentally ambivalent social mechanism” that is, in part, a product of imperialism. On the other hand, imperialism is a “global project closely linked” to the principles and market influences of capitalism, and the relationship between the two cannot be oversimplified to a pluralist confrontation model [16].
According to Heterodox scholars, Imperial governance is either based on the logic of capital accumulation or territorial expansion. The former defined the informal empires of ambiguous political control that defined areas such as the mid-1800s Africa [17], and the latter defined colonialism, starting with the expansion of the merchant republics [18]. 19th and early 20th-century international law was a vehicle to mitigate contradictions and conflicts between these two mechanisms [19]. To this end, imperialism was “central to (international law’s) formation,” and imperialism also made European legal principles—the “Westphalian Legal Order”—universal [20].
While the heterodox tradition has multiple schools of thought, the most prominent by far is the Legal Realist thesis. For the sake of brevity, let us base our analysis on this thesis.
The Legal Realist Thesis, based on first-image realism as put forward by Kenneth Waltz [21], states that imperialism is inexorably tied to the application of International Law. The central belief is that powerful states apply international law in a manner that oppresses and disempowers less powerful states by limiting what a less powerful state can do. Imperialism and international law are bound not only by their content but also by their respective practical uses.
Application: Comparing the Validity of Orthodox Thought to Legal Realist Thesis Using Historical and Contemporary Examples
By examining the application of international law via examples of past and present cases, we can simultaneously reject the confrontation mechanism model and the notion of international law being “anti-imperialist.” Furthermore, we can establish an apparent need for a reckoning between the continuing influence of imperialism and modern international law.
Historical Case Study: ‘The Masai Case’
When analyzing past cases, there is ample evidence that international law, even when applied, actually encouraged imperialism. According to Gathii, imperialist powers used the international law principle of extraterritoriality to justify territorial expansion.
Gathii uses the case study of the Maasai objection to the British establishment of the East African Protectorate (Ol le Njogo and seven others vs the Attorney General and 20 others, Civil Case No.91, May. 26th, 1913) to demonstrate this. The Massai objected to the seizure of their land in the Kenya region, which they viewed as an infringement on their land rights as British subjects. The British East African administration argued that the Masai were not subject to British law but rather as a sovereign people beholden to past treaties that allowed for British territorial encroachment.
In this case, a British court ruled for the East African administration, stating that
“East Africa being a Protectorate in which the Crown has jurisdiction is concerning the Crown a foreign country under its protection, and its native inhabitants are not subjects owing allegiance to the Crown but protected foreigners” [22].
By doing so, the court applied the principle of international law to say that agreements about territorial expansions between the Massai tribe and the British constituted binding and enforceable treaties. Using the extant (and still relatively unchanged) principle of extraterritoriality within international law, the British effectively justified imperialist action.
By exemplifying the usage of valid principles of International Law to facilitate imperialism, the Massai case effectively undermines the image of international law as unquestionably “anti-imperialist.” By pointing out a case where European colonial rule was encouraged by international law, this case also illuminates a fundamental flaw in the “confrontation model” of the Orthodox tradition. Instead, this case exemplifies Legal Realist thought insofar as Gathii believes it outlines the principle of “whether a court will invoke (international law) turns on whether the application of the law serves its nation’s interests” [23]. This involvement of the principle of extraterritoriality is also a common theme in the US court rulings during the US expansion upon the Native Americans in cases such as (Worcester v. Georgia, 31 U.S. 515, 543 (1832)) and (Johnson v. McIntosh 21 U.S. 543, 590 (1823)). In the Iron Crow v. Oglala Sioux Tribe of Pine Ridge Reservation, 231 F.2d 89 (8th Cir.1956), a US circuit court upheld the belief that Native Americans “possess an inherent sovereignty (alien to non-Native Americans),” meaning that Native Americans are not entitled to the same rights of other US citizens, reinforcing earlier positions that Congress is entitled to “plenary authority over Indians.”
Contemporary Cases
The need for a reckoning around imperialism and international law has only become more apparent when examining modern cases. Court rulings around the times of the War on Drugs and the War on Terror are two prominent examples where international law has facilitated imperialist action.
Cases such as United States v. Duarte-Acero, 296 F 3d 1277, 1283 (11th Cir. 2002), cert. denied 537 U.S. 1038 (2002), affirmed a district court ruling that U.S. Drug Administration Enforcement Agents do not have a duty to comply with the International Covenant on Civil and Political Rights when they act outside the United States and within the boundaries of another country. United States v. Verdugo-Urquidez, 494 U.S. 259 (1990), also ruled that evidence obtained in a warrantless search by US officials in a Mexican residence against a Mexican citizen was admissible, tacitly validating such action.
By allowing for the violation of the sovereignty of foreign nationals on foreign soil, the argument can be made that this is another example of international law selectively being applied to encourage imperialist (or at the least neo-imperialist) action.
Padilla v. Rumsfeld, 542 U.S. 426 (2004) (No. 03-1027), 2004 WL 1066129 and Hamdi v. Rumsfeld, 542 U.S. 507 (2004) are both cases where the US has selectively applied principles from International law to both deny habeas corpus and justify the US’s ability to detain ‘enemy combatants’ in Guantanamo Bay.
Using the justification for US intervention in states the US judges ‘unwilling or unable’ to combat what the US sees as terrorists, the US blatantly applied the principle of conditional sovereignty from International Law to justify imperialist actions during the War on Terror. In making actions such as the Invasion of Iraq and intervention in Afghanistan, the US applied ‘humanitarian’ principles in international law to justify the violation of multiple nations’ sovereignties and territorial encroachment via the establishment of military bases. In this light, it is very easy to see contemporary US policy in the Middle East as imperialist action. Whilst the US policy under the War on Terror was not in its totality imperialist, in these cases, it is clear that International Laws were being applied to facilitate imperialist action.
These violations of sovereignty create a situation that Gathii aptly describes as one where “courts invoke notions of extraterritoriality to immunize the conduct of the United States outside their geographic limits in the denial of jurisdiction over habeas corpus petitions by foreign detainees, thereby promoting U.S. governmental interests abroad-courts invoke similar arguments to promote U.S. commercial interests abroad.” In more pertinent terms, it is clear that even in modern cases, Legal Realist principles are present and international law is being judiciously applied to justify imperialist action. The recency of these cases also should make the point clear: international law needs to come to terms with imperialism. Whilst this could take a number of forms, a uniform recognition of what constitutes ‘imperialism’ (assuming eliminating imperialism is the goal) would be an effective measure.
Conclusion
This article sought to explore the relationship between imperialism and international law. By comparing the Orthodox and the Heterodox traditions and approaches to said relationship, we have seen that international law’s concept of imperialism is in no way unified.
By examining both historical and contemporary cases where international law was applied to justify imperialist action, I have demonstrated that the Legal Realist theory (as a part of the Heterodox tradition) represents a far more accurate approach.
Furthermore, my examination of the historical Massai Case serves as a compelling counterargument against perceptions of international law being ‘anti-imperialist’.
By examining how international law has been applied more recently to justify imperialist action, this article has also established that international law needs to come to terms with its relationship with imperialism and suggested adopting a uniform definition of imperialism to do so.
Using the aforementioned definition of imperialism, the argument can be made that it has significantly declined since the early 1900s, but this article has made the case that international law still has a long way to go when it deals with imperialism in the present day.
Notes:
For a more potent explanation of Post-Colonial arguments around imperialism and its role in the creation (and continuing influence) of International Law, see Orford, Anne, The Past as Law or History? The Relevance of Imperialism for Modern International Law (September 9, 2011). IILJ Working Paper 2012/2 (History and Theory of International Law Series), U of Melbourne Legal Studies Research Paper No. 600, Available at SSRN: https://ssrn.com/abstract=2090434 or http://dx.doi.org/10.2139/ssrn.2090434
[1] Morgenthau, Hans J. 1904-1980. 1954. Politics Among Nations: The Struggle for Power and Peace. New York, Knopf.
[2] For a wider discussion of ‘informal empire’, see Gallagher, John, and Ronald Robinson. “The Imperialism of Free Trade.” The Economic History Review 6, no. 1 (1953): 1–15. https://doi.org/10.2307/2591017.
[3] Anghie, Antony. “The Evolution of International Law: Colonial and Postcolonial Realities.” Third World Quarterly 27, no. 5 (2006): 739–53. http://www.jstor.org/stable/4017775
[4] Wolfe, Patrick. “History and Imperialism: A Century of Theory, from Marx to Postcolonialism.” The American Historical Review 102, no. 2 (1997): 388–420. https://doi.org/10.2307/2170830.
[5] Hannum, Hurst, Rethinking Self-Determination (October 7, 2011). INTERNATIONAL LAW AND THE RISE OF NATIONS: THE STATE SYSTEM AND THE CHALLENGE OF ETHNIC GROUPS, Robert J. Beck, Thomas Ambrosio, eds., CQ Press, 2001, SELF-DETERMINATION IN INTERNATIONAL LAW, Robert McCorquodale, ed., Ashgate Publishing, 2000, Virginia Journal of International Law, Vol. 34, No. 1, 1993, https://ssrn.com/abstract=1940662
[6] Wright, Harrison M.D. ibid
[7] “Joint declaration by the President of the United States of America and Mr. Winston Churchill, representing His Majestys government in the United Kingdom, known as the Atlantic Charter,” 14 August 1941. Courtesy of Library of Congress
[8] G.A. res 1515 (XV), UN GAOR, 15th Sess (Vol.1) at 17 (Dec 14th 1960) https://documents-dds-ny.un.org/doc/RESOLUTION/GEN/NR0/152/88/PDF/NR015288.pdf?OpenElement
[9] That is, to consider that “A definition of imperialism must make reference to both direct and indirect political control…and the intention” to be imperialist, as argued by WRIGHT, HARRISON M. “‘IMPERIALISM’: THE WORD AND ITS MEANING.” Social Research 34, no. 4 (1967): 660–74. http://www.jstor.org/stable/40970749.
[10] Rasulov, Akbar, The Concept of Imperialism in the Contemporary International Law Discourse (July 21, 2017). Forthcoming, Jean d’Aspremont and Sahib Singh (eds.), Concepts for International Law (Edward Elgar; 2018), https://ssrn.com/abstract=3006655
[11] Rasulov, A (ibid)
[12] Rasulov, A (ibid)
[13] Rasulov, A (ibid)
[14] To contextualize this, take British colonization. Until the 1940s, it was economically beneficial to maintain an empire in some form. The Empire was beneficial to the economy directly and/or indirectly. But in the 1940’s onward, the US’s offering of economic incentivization to decolonize, diminishing investment and tariff returns from the Empire and the opportunity for greater economic benefits from European economic participation therefore led Britain to decolonize.
[15] A.G. Forji, ‘International Law, the Civilizing Mission and the Ambivalence of Development in Africa: Conceptual Underpinnings,’ Journal of African and International Law, 6 (2013), 191–225.
[16] Rasulov, A (ibid)
[17] Gallagher, John, and Ronald Robinson. “The Imperialism of Free Trade.” The Economic History Review 6, no. 1 (1953): 1–15. https://doi.org/10.2307/2591017. For a critique of their writing see Sweezy, Paul M. “Some Problems in the Theory of Capital Accumulation.” International Journal of Political Economy 17, no. 2 (1987): 38–53. http://www.jstor.org/stable/40470448.
[18] Pietri, Antoine, Tarik Tazdaït, and Mehrdad Vahabi. “The Economics of Empire-Building: Predatory and Price Competitions.” Journal of Institutional and Theoretical Economics (JITE) / Zeitschrift Für Die Gesamte Staatswissenschaft 173, no. 2 (2017): 253–78. http://www.jstor.org/stable/44862122
[19] Rasulov, Akbar, ‘The Nameless Rapture of the Struggle’: Towards a Marxist Class-Theoretic Approach to International Law (2010). Finnish Yearbook of International Law, Vol. 19 (2008) (2010), Available at SSRN: https://ssrn.com/abstract=2264220
[20] Anghie, Antony. “The Evolution of International Law: Colonial and Postcolonial Realities.” Third World Quarterly 27, no. 5 (2006): 739–53. http://www.jstor.org/stable/4017775.
[21] Waltz, K. N. (2001), Man, the State and War: A Theoretical Analysis, Columbia University Press: New York
[22] “Judgment of the High Court of the East Africa Protectorate in the Case Brought by the Masai Tribe Against the Attorney-General of the Protectorate and Others.” The American Journal of International Law 8, no. 2 (1914): 380–89. https://doi.org/10.2307/2187148
[23] James T. Gathii, Imperialism, Colonialism, and International Law, 54 Buff. L. Rev. 1013 (2007). Available at: https://digitalcommons.law.buffalo.edu/buffalolawreview/vol54/iss4/2
Sources:
“Judgment of the High Court of the East Africa Protectorate in the Case Brought by the Masai Tribe Against the Attorney-General of the Protectorate and Others.” The American Journal of International Law 8, no. 2 (1914): 380–89. https://doi.org/10.2307/2187148
A.G. Forji, ‘International Law, the Civilizing Mission and the Ambivalence of Development in Africa: Conceptual Underpinnings,’ Journal of African and International Law, 6 (2013), 191–225.
G.A. res 1515 (XV), UN GAOR, 15th Sess (Vol.1) at 17 (Dec 14th 1960) https://documents-dds-ny.un.org/doc/RESOLUTION/GEN/NR0/152/88/PDF/NR015288.pdf?OpenElement
Gallagher, John, and Ronald Robinson. “The Imperialism of Free Trade.” The Economic History Review 6, no. 1 (1953): 1–15. https://doi.org/10.2307/2591017
Hannum, Hurst, Rethinking Self-Determination (October 7, 2011). INTERNATIONAL LAW AND THE RISE OF NATIONS: THE STATE SYSTEM AND THE CHALLENGE OF ETHNIC GROUPS, Robert J. Beck, Thomas Ambrosio, eds., CQ Press, 2001, SELF-DETERMINATION IN INTERNATIONAL LAW, Robert McCorquodale, ed., Ashgate Publishing, 2000, Virginia Journal of International Law, Vol. 34, No. 1, 1993, https://ssrn.com/abstract=1940662
James T. Gathii, Imperialism, Colonialism, and International Law, 54 Buff. L. Rev. 1013 (2007). Available at: https://digitalcommons.law.buffalo.edu/buffalolawreview/vol54/iss4/2
Morgenthau, Hans J. 1904-1980. 1954. Politics Among Nations: The Struggle for Power and Peace. New York, Knopf.
Pietri, Antoine, Tarik Tazdaït, and Mehrdad Vahabi. “The Economics of Empire-Building: Predatory and Price Competitions.” Journal of Institutional and Theoretical Economics (JITE) / Zeitschrift Für Die Gesamte Staatswissenschaft 173, no. 2 (2017): 253–78. http://www.jstor.org/stable/44862122
Rasulov, Akbar, The Concept of Imperialism in the Contemporary International Law Discourse (July 21, 2017). Forthcoming, Jean d’Aspremont and Sahib Singh (eds.), Concepts for International Law (Edward Elgar; 2018), https://ssrn.com/abstract=3006655
Wolfe, Patrick. “History and Imperialism: A Century of Theory, from Marx to Postcolonialism.” The American Historical Review 102, no. 2 (1997): 388–420. https://doi.org/10.2307/2170830.
Anghie, Antony. “The Evolution of International Law: Colonial and Postcolonial Realities.” Third World Quarterly 27, no. 5 (2006): 739–53. http://www.jstor.org/stable/4017775
Sweezy, Paul M. “Some Problems in the Theory of Capital Accumulation.” International Journal of Political Economy 17, no. 2 (1987): 38–53. http://www.jstor.org/stable/40470448
Waltz, K. N. (2001), Man, the State and War: A Theoretical Analysis, Columbia University Press: New York
WRIGHT, HARRISON M. “‘IMPERIALISM’: THE WORD AND ITS MEANING.” Social Research 34, no. 4 (1967): 660–74. http://www.jstor.org/stable/40970749. [Original source: https://studycrumb.com/alphabetizer]
JHULR 
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