International law scholarship from the German-speaking world has an impressive and much-invoked theoretical tradition. Nineteenth century German positivism centring on the will of the state as the formal basis of law (Jellinek and Triepel) made a lasting impression on modern Western international law scholarship and also induced two highly influential in depth critiques of Staatswillenspositivismus just after the First World War, those of Kelsen and Schmitt. These were contributions to the theoretical construction and critique of an international law moulded in European capital cities and expounded in European universities, an international law whose influence could be felt in almost every corner of the world by the end of the 19th century.
European colonization and land appropriation and in particular through economic intervention, in which the German Empire played a significant role in the last two decades of the 19th century, led not only to the establishment of global capitalist structures and the spread of European lifestyles, but also to the so-called ‘universalization’ of European international law (on the latter see the entries in the Oxford Handbook of the History of International Law and the critiques of these). From the very beginning, colonized societies made a variety of efforts to resist the invading economic exploitation, racist violence and socio-cultural hegemony. This resistance was also directed against the European international law and in particular against institutions and norms that served to reinforce the political and economic dominance of the West.
The postcolonial challenge
It’s no coincidence that this postcolonial struggle for a new international law reached its initial global peak during the era of decolonization (1955-1975) and was shaped by renowned international law authors from the Third World, many of whom had themselves taken part in anti-colonial liberation struggles (of particular note here are Elias, Anand, Abi-Saab, Bedjaoui). A second global wave of postcolonial criticism of international law has emerged since the mid-2000’s and is often identified with Antony Anghie’s pioneering book Imperialism, Sovereignty, and the Making of International Law. From the perspective of the Third World, the thread that unites this line of criticism is the continuity of asymmetrical North-South relations after decolonization: the South as an ongoing object of intervention by the North and a global economic order that remains fundamentally unjust. Read the rest of this entry…