International Law’s Past, Present and Future: A Conversation with Antony Anghie

To mark his Honorary Doctor of Laws (LLD) from the University of Kent, Professor Antony Anghie shares his experiences, reflections and hopes for the international legal order, the ‘Third World Approaches to International Law’ (TWAIL) movement, and the University with recent KLS graduate George Hill

  New York: Underwood & Underwood: https://www.loc.gov/item/91787482

An internationally renowned scholar in the field of international law, Professor Anghie looks beyond traditional legal sources and doctrines in order to critique the enduring legacy of colonialism and the subjugation of the Global South by the international order. This invites discussions that touch upon the historical, political, anthropological and socio-cultural dimensions of international discourse. His revolutionary scholarship has ushered TWAIL into legal curricula worldwide.

Raised in Sri Lanka, Anghie graduated from Monash University in Melbourne with a joint-honours degree in Law and English and Politics. He then completed an SJD at Harvard Law School, where he was a MacArthur scholar. He is a Professor of Law at the University of Utah’s S J Quinney School of Law and the National University of Singapore. He also served as a visiting Professor at Harvard, the LSE, Cornell, Melbourne, the American University of Cairo, the University of Tokyo, the University of Helsinki and Kent Law School. Anghie is qualified as a Barrister and Solicitor in Australia, while serving on the editorial boards of the Asian Journal of International Law (he is one of the co-editors in chief), the American Journal of International Law, and several others.

Professor Antony Anghie

Anghie’s globally renowned monograph, Imperialism, Sovereignty and the Making of International Law published in 2004 by Cambridge University Press, disentangles and exposes the colonial and neo-colonial forces that have been interwoven in the fabric of international law since its inception. Masterfully retelling the story of the discipline, Professor Anghie lays bare the Eurocentric origins of international law. Travelling the length of international law’s bildungsroman, from the overtly colonial practices of international law’s founding fathers, to the ‘universalisation’ of international law in the 19th century, and from the founding of international institutions to the ‘War on Terror’, Imperialism, Sovereignty and the Making of International Law is unique in that it never loses sight of those at the periphery of this grand and often revered narrative.

Professor Anghie is not only celebrated for his own work, but also his mentorship of emerging legal scholars. True to form, Professor Anghie agreed to be interviewed, resulting in a dialogue touching upon topics as varied as the role of the University, Sri Lanka’s colonial past, cricket, the challenges facing the next generation of legal scholars and the future of international law. What follows are my reflections on Anghie’s thoughts, experiences and influences. I hope that this dialogue will be as illuminating to readers as the interview has been for me. The full transcript is available to view online: In conversation with Anthony Anghie

Formative Experiences

For the aspiring international law scholar, Anghie’s unique set of influences and experiences provide an invaluable source of inspiration. Intriguingly, he traces the origins of his brand of critical legal thought far beyond the beginning of his legal education:

‘I suppose all scholarship is to some extent autobiographical. Growing up in Sri Lanka, I did not really think much about issues of colonialism… But I did have a vague sense that I was from this thing, ‘The Third World’. I was also conscious of the fact that I was part of a very privileged elite in Sri Lanka. It was only in Australia, at university, a student of some outstanding and generous teachers at Monash such as Herb Feith, David Goldsworthy and Christopher Weeramantry that I began to systematically explore some of the basic questions that had puzzled me as a boy in Sri Lanka. Why are some countries rich and other countries poor? Why were some people rich and others poor?’

Anghie was initially optimistic about the role that international law could play in redressing the injustice he sensed even in his childhood. Over time, however, Anghie became increasingly sceptical of the international legal order’s presumption that all states are free and equal by virtue of their sovereignty, as well as histories of international law that treat this mantra as gospel.

Much can be learned from the path taken by Anghie in transforming these raw questions into world-leading legal academia. Anghie credits much of his early inspiration to his teacher at Monash and ICJ Vice-President, the late Professor Christopher Weeramantry (still ‘Prof’ to Anghie). Weeramantry could be considered a member of an earlier TWAIL generation, offering Anghie  insight into the role that a ‘TWAIL judge’ could play in international dispute resolution.

Anghie would go on to spend several years assisting Judge Weeramantry with the Certain Phosphate Lands in Nauru (Nauru v Australia) dispute before the ICJ. Nauru, a Micronesian Island of around 10,000 people, had been exploited for its rich deposits of phosphate while placed under the League of Nations Mandate System, a framework designed for ‘colonies and territories…inhabited by peoples not yet able to stand by themselves under the strenuous conditions of the modern world’ (Covenant of the League of Nations, Art 22). The conditions of this pseudo-benevolent guardianship became readily apparent. Under the joint trusteeship of Great Britain, Australia and New Zealand, phosphate exploitation continued until Nauru gained independence in 1968. Nauruans received only a fraction of the proceeds, while decades of phosphate exploitation had left one third of Nauru’s land mass uninhabitable and unusable. While the League of Nations Covenant promised that ‘the well-being and development of such peoples [would] form a sacred trust of civilisation’, the Nauruan experience suggested that trusteeship was merely a 20th century euphemism for colonial subjugation.

In directly exploring the iniquities of the post-colonial condition, Anghie became conscious of the rightful place of third-world concerns within international legal discourse.

‘…that gave me a very clear idea of how the history of international law had impacted a small country far from the centres of European power. Examining the very concrete legal issues and disputes that emerged from that experience enabled me to connect the elements of what could be narrowly defined as a series of ‘legal disputes’ with this larger history of the relationship between imperialism and international law. Both in relation to Nauru and his work on the ICJ, it was extraordinary to be able to see at first-hand how Prof approached these issues and to be able to discuss them with him later.’

The fight for space

A recurring theme in TWAIL scholarship is the struggle for TWAIL to be treated as essential rather than errant. This has been TWAIL’s greatest challenge, and the mainstream’s strongest bulwark against epistemological and institutional change. Professor Anghie considers that the broader goal is to affirm TWAIL’s status as ‘a legitimate academic and professional pursuit as opposed to some erratic and unsound ‘political’ approach that would disqualify you from being regarded as a proper ‘professional’, impartial, objective international lawyer – the sort who could be trusted to argue a case before the ICJ. A clear parallel can be drawn between the Eurocentrism that TWAIL seeks to deconstruct and an institutionalised, intellectual Eurocentrism that finds disproportionate authority in the voice of the white European.

Just as international law had long treated the Global South as peripheral, predecessors to TWAIL had been discredited by the international legal mainstream. Many of TWAIL’s predecessors – the decolonisation movement, the Bandung Conference of 1955, the Non-Aligned Movement and the New International Economic Order – have been repeatedly confined to the margins. Where TWAIL might once have been pigeon-holed as retrospective and political reaction to colonialism, it has now developed, however, into an important and fast-evolving field of international legal scholarship and practice.

It was under Judge Weeramantry that Anghie himself found ‘a very real way of engaging with and understanding what we might now call the TWAIL tradition.’ Judge Weeramantry’s work assured Anghie that the third-world tradition was ‘a valid and important project and not some interesting but irrelevant diversion.’ Not only did this validate his concerns regarding the imbalances of post-colonial international law, Weeramantry’s work also carved out a niche for voices from the global south in the international legal mainstream.

Anghie experienced the trials and tribulations of the nascent TWAIL tradition first-hand. As part of the influential Harvard cohort responsible for the first (explicitly) TWAIL workshop in 1997, Anghie’s own mentorship has echoed that of Judge Weeramantry and his generation of third-world scholars. While Anghie’s generation, ‘TWAIL II’, was the first to coin the term TWAIL, Anghie insists that it continues a heritage of mentorship to which it is heavily indebted. Yet this came with much pressure attached to it. Having had the manuscript of his thesis initially turned down by Cambridge University Press, he published a series of articles that would form a deeper basis for this work. On reflection, he suggests that his greatest challenge was ‘to sketch out a history of international law that made imperialism central to the story, a TWAIL history of international law if you will, a history that was credible and scholarly.’

Attesting to TWAIL’s remarkable progress, Professor Anghie delivered the 2010 Grotius Lecture at the American Society of International Law Conference, following in the footsteps of Judge Weeramantry and fellow TWAIL scholar Professor B.S. Chimni, who delivered the lecture in 1999 and 2006 respectively. While acknowledging the importance of the lecture’s namesake, Hugo Grotius, as a founding father of international law, Anghie does not hesitate to raise that Grotius himself was the servant of the Dutch East India Company. This demonstrates how far the TWAIL project has come, but also how much further it can go.

Anghie suggests that now ‘it is TWAIL that is ‘universal’, that what were perceived as the narrow concerns of the third world are now seen as ‘global concerns’ even by the orthodoxy.’ After all, the TWAIL approach builds on what the international legal mainstream might call its founding values – sovereign equality, non-discrimination, territorial and political integrity – all of which can be found in the UN Charter. As Anghie raises, ‘many of the ‘TWAIL concerns’ about issues of power and inequality are becoming ‘global’ concerns – witness the current debate about the relationship between human rights and neo-liberalism.’ In this way, TWAIL has integrated itself into the mainstream and effects change from the inside. While the TWAIL mission is by no means complete, Anghie remains optimistic:

‘I think we should believe in the idea of international law for both pragmatic and normative reasons. The historical record is very mixed to say the least. But equally, history suggests that any sort of society does create for itself some sort of law; and the question is the role we can play in making that law better or worse. As I have argued elsewhere, some form of international law is always going to be in operation-and that is the case even in these dark times. And I think it is dangerous to withdraw from the debates about what that law is and should be’

Near Haputale - "the two ways" rail and road. Haputale Sri Lanka, 1895. Photographer: William Henry Jackson
Near Haputale – “the two ways” rail and road. Haputale Sri Lanka, 1895. Photographer: William Henry Jackson

TWAIL: An inter-generational vision

Over the course of the interview, I was struck by just how conscious Anghie was of the inter-generational dimension of the TWAIL project, his appreciation of his mentors and respect for the agency of his mentees. Anghie is the first to point out that he has been fortunate to bridge the gap between TWAIL and the international legal mainstream. He credits Judge Weeramantry and also Professor David Kennedy, Herb Feith and David Goldsworthy as leading mentors at different stages of his career, also citing fellow TWAIL scholars Upendra Baxi, Karin Mickelson, Balakrishnan Rajagopal, M S Sornarajah and James Thuo Gathii as constant sources of inspiration.

Through and beyond his scholarship, Anghie has played an invaluable role in cultivating a TWAIL network, mentoring the next generation of TWAIL scholars. On this generation, he remarks that,

‘What concerns me are the demands placed on younger scholars, who, it seems to me, are expected to be endlessly productive and topical and original and profound all at the same time. Perhaps I’m being old fashioned and personal here, but I needed the peace and quiet and time to think that the University of Utah so generously provided me at the beginning of my academic career. All this gave me the chance to put in my best effort. I could focus on intellectual rather than institutional challenges. Those conditions are difficult to find now anywhere.  However, what also got me through the most difficult times were kind colleagues and the TWAIL community-so I hope that some version of that community will be there for all of you.’ 

At the same time, he paraphrases Fanon in observing that ‘it is the task of each generation to define its own mission…’. It is a testament to the strength and cohesion of TWAIL that, perhaps unlike some of its predecessors, the same approach and network will confront new challenges and new forms of empire as a unit. Certainly, the legacy left by Anghie and his fellow TWAIL-II scholars inspires the next generation and many to follow.

The future

Anghie observes a sea-change in the awareness of a younger generation of European students, who no longer uncritically accept the word of colonial jurists. International law students in today’s Europe are indebted to TWAIL for this. In contrast, Anghie has seen the intellectual-psychological legacy of colonialism in Asia:

‘I’ve just been involved in workshops in Cambodia and Sri Lanka. And what I find striking – but not really surprising – is that they study with dedication the traditional Eurocentric version of international law. That after all is what is presented in the textbooks. As a consequence, however, they and their students could feel completely removed from and alien to the subject as that version usually presents their own country – if mentioned at all – as one of the many backward and uncivilised that in due course were colonised and civilised and then granted the gift of statehood. Given this beginning, the initial premise of subordination and inferiority, it is hardly surprising that Asians feel ‘ambivalent’ about international law. In this context then, decolonisation strangely enough means acquainting Asian scholars with their own history. Now of course these scholars know their own history, but the difficulty is in connecting that history with the Eurocentric history of international law, which is still largely the official version. I hope TWAIL provides scholars in this predicament with a way of connecting their own history with international law in a plausible and illuminating way.’

Belonging and the University

TWAIL now provides a discursive platform for voices from the global south. In Anghie’s words, ‘[i]t is certainly an ambition of TWAIL to provide people, especially from the developing world, with a vocabulary, a set of analytic tools that would enable them to explore their own condition, their concerns, about inequality and the aftermath of formal Empire.’ In so doing, TWAIL evokes inherently human experiences, transcending the esoteric and exclusive language, conventions and dogmata of the international legal mainstream. While this has enriched international legal scholarship invaluably, it also inaugurates a broader sense of belonging amongst third-world scholars.

The mainstreaming of repressed voices is as much a current topic in university life as it is in international law. As the success of the TWAIL mission demonstrates, we can only be enriched by vocalising the plethora of diverse experiences that exists below the surface of any group, be it in international legal academia or a university cohort. This academic year (2018-2019), the KLS Decolonise the Curriculum project has enjoyed resounding success. On this, Anghie remarks that ‘To me it is fairly simple. Surely as scholars and as Universities, we have the mission of expanding knowledge and learning? … People are often unaware about their own histories – but for different reasons.’

Reflections

As an aspiring international lawyer, I drew three particular points of inspiration from my conversation with Professor Anghie.

The first was the role of inter-generational learning. As Law students, at least at the undergraduate level, we are often under the illusion that we are to come up with work that is, to use Anghie’s words, ‘endlessly productive and topical and original and profound all at the same time’. Anghie’s account of his career teaches us to make use of the knowledge of previous generations, rather than to attempt to supersede it.

Secondly, Anghie’s understanding of international law affirms the value that should be placed in fundamental concerns with the ordering of international life. In pursuit of the most intricate of intellectual arguments, it can be easy to lose sight of more basic concerns, the fundamental human experiences that ultimately give meaning to international law and academia.

Finally, Anghie offered a deep insight into the challenges of enacting institutional change, for he has transformed not only the content of international legal scholarship, but also dismantled the structures of intellectual convention that had limited its scope prior to TWAIL. In shifting the locus of international legal intellectualism, the work of Anghie and TWAIL gives hope and strength to any and all who aspire to shift paradigms in this way. For Anghie, locating and eliminating colonial and neo-colonial ‘dynamics of difference’ is the first step in the right direction.