How are we to understand the relationship between international law and imperialism? What bearing might that have on how we see contemporary international law? According to one view, international law is simply a “cloak of legality” thrown over the subjugation of colonized peoples by the imperial powers in a distortion of international law’s true spirit. According to this understanding, the contemporary task is to rid international law of the vestiges of that misappropriation. We must accept decolonization at face value and continue to broaden the scope and content of international law in a culturally sensitive way. Meeting the Symposium’s stated goal of “envisioning new orders” would therefore require the rescue of international law from the corruption of power to make good international law’s explicit promise of universality and sovereign equality.
At the other end of the spectrum is the belief that international law has always been encompassed by and in the service to empire. At this pole, the very doctrines and institutions of international law are understood to have been molded by the powerful in order to serve their interests. Those who hold power in the contemporary setting maintain the capacity to create and deploy international law, in turn facilitating practices of (neo)colonialism.
However, most scholars engaged with the “postcolonial” in some form or other would hesitate to embrace either of these two polar positions. On the one hand, the perception of international law as an innocent victim waiting to be rescued from the corruptions of imperialism is untenable. On the other hand, the view that international law abjectly serves empire is equally unpopular with those so engaged. They are generally unwilling to accept such an encompassing frame and its attendant demand to abandon international law as a site of contestation, both historically and now. And thus there is an irresolution that disrupts any attempt to characterize international law neatly as either on the side of the angels or in devilish league with imperialism.
Rather than simply attributing this to the indeterminacy of language or to the formal nature of law, it is important to inquire into the quality of this irresolution and to ask whether it is itself significant. Arguably there is something distinctive about the relation implied in the “postcolonial”—both a break from and a continuity with past forms of domination—and something particular about the capacity of law to be both appropriated to imperial ends and used as a force for liberation.
I argue that the quality of this irresolution suggests that international law is itself already postcolonial in that it both sustains and contains within it what we might call the condition of the postcolonial. Succinctly stated, this can be understood not only as the circular self-constitution of self and Other, but also as the paradoxical inclusion of the excluded necessitated by the claim to universality of this constitution. This dynamic accounts for both international law’s imperializing effect and its anti-imperial tendency. Crucially, whether or not this dynamic is in some way addressed would seem to indicate whether an approach to international law is likely to have any critical purchase or will instead be drawn back into the reproduction of colonial relations of power.
In the rest of this Article, I will outline the dimensions of this postcoloniality and its implications with reference to two examples. The first is the universalization of international law through decolonization, and the second is the limited success of recent attempts to “decolonize” human rights by refounding them on more “truly” universal grounds.