Public international law, as the current global regime regulating relations between states, is primarily the product of a European law of nations (Volkerenrecht) that has been universalised at specific historical moments. Its fundamental principles and norms find their roots in the European project of nation building, such as the central concept of state sovereignty. A critical method to understanding international law is to historisise the current regime through a genealogy of its origins.
A decolonial perspective, as exemplified by TWAIL (Third World Approaches to International Law), situates international law's origin in the colonialism of European powers in other continents (as well in Europe's own periphery) - silencing other forms of knowledge in the process, such as indigenous cosmologies. While there have been other forms of colonialism across time, the European project and its legal underpinnings have been universalised and had the most structural effects. Different historical legal theories have consistently used international law to legitimise European colonial projects under the premise of a 'civilising mission' (Koskenniemi). For instance, naturalism relied on universal reason and transcendantal principles to justify the christianisation of non-European peoples and taking of their lands as 'terra nulius'. Similarly positivism identified a community of sovereign nations whose plight it was to protect 'non-civilised' peoples. TWAIL scholars have conceptualised the structural dynamics behind the use of international law for colonisation as 'the dynamic of difference' (Anghie) or the 'standard of civilisation' (Tsouvala).
This colonial character is produced by and reproduces international law in ensuing periods. This continues into the current regime. Critical scholars speak about this continuity as the 'coloniality' of law. The mandates system of the League of Nations and the trust system established at the United Nations legitimised the attempts of colonising states to withhold or slow down the process of decolonisation, in order to protect their interests with adapted legal solutions. The wave of decolonisation in the 1960’s meant that the newly independent states outnumbered former colonial powers in the international arena (Grimonprez). Still, their formal independence did not put an end to the privileges of former colonial states in the protection of their political and economic interests, e.g. through the international trade arbitrage system (to control natural resources) or the composition of UN bodies such as the Security Council.
Also new forms of ‘neocolonial’ power (by both former European and new global powers, such as the USA or China) have undermined stated objectives of international law such as international solidarity, global justice, inter-state cooperation and sovereign equality. Colonial clauses in the European Convention on Human Rights (Moor & Simpson) or the restrictive application of the Refugee (Chimni) are examples of coloniality legacy in current instruments with stated humanitarian objectives. The instrumental use of international law (and its ideological legitimisation) is unapologetically exposed by the ongoing breakdown of the assumed pre-existing 'rules-based' order and its growing irrelevance in restraining the interventionism of the most powerful states to protect their interests in international relations.
Further reading:
- Koskenniemi, M. (2001). The Gentle Civilizer of Nations. The Rise and Fall of International Law 1870-1960, Cambridge University Press.
- Anghie, A. (2006), The Evolution of International Law: Colonial and Postcolonial Realities, Third World Quarterly , 27(5), 739-753.
- Tzouvala, N. (2020). Capitalism As Civilisation: A History of International Law. Cambridge: Cambridge University Press.
- Chimni, B.S. (1998). The Geopolitics of Refugee Studies: A View from the South, Journal of Refugee Studies, 11( 4), 350–374.
- Moor, L. & Simpson, A.W.B. (2006). Ghosts of Colonialism in the European Convention on Human Rights, British Yearbook of International Law, 76(1), 121–194.
- Grimomprez, J. (2025). ‘Soundtrack to a Coup d'Etat’ (documentary).