In light of the event ‘The Rights of Aliens Under International Law: A Critical Approach’ hosted at LSE with Professor Antony Anghie as guest speaker, this blog post will analyse the Rights of Aliens in International Law and the interrelationship with colonialism. It will focus particularly on Professor Anghie’s contribution to this topic, and his interview with Valentina Canepa, a member of the Lawyers Without Borders LSE Division and LLM Candidate at LSE.
Professor Anghie is an internationally renowned lawyer. Currently Professor of Law at the University of Utah and the National University of Singapore, Professor Anghie is originally from Sri Lanka and has a prestigious curriculum from various international universities. Not only has Professor Anghie been educated at Monash University, Melbourne and Harvard Law School, but Professor Anghie has also been a visiting professor at, inter alia, American University Cairo, Harvard, LSE and Melbourne Law School. Professor Anghie is also a member of the Third World Approaches to International Law (‘TWAIL’) movement, which responds to issues of decolonisation, taking into account that the history of International Law is strongly associated with the history of colonialism.
It is claimed that the international community is no longer divided on the ‘standard of civilisation’ between ‘civilised’ and ‘uncivilised’ countries, due to the peripheral role that colonialism has played in the traditional concept of International Law[1], as a consequence of the nineteenth century imperial expansion.[2] Yet this could not be further from the truth; although the universal connotation attached to International Law has become widespread in the international community, International Law is not always culturally-sensitive. The repertoire of International Law is indeed based on mechanisms of dispossession and exclusion. As Professor Anghie suggested in our interview with him, there have been many more ancient empires than the European one, yet the latter has impacted International Law the most. One example discussed was the ancient Chinese empire, a country with a richer history than its western counterparts, yet deemed by them, ‘uncivilised’. The European alien – the “powerful” alien, as opposed to the “powerless” alien depicted in the current human rights discourse – was the paradigm of what determined and defined civilisation. Yet, this seems to still be the case. A recent example is the case of the former inhabitants of Chagos Islands, who were forced to enter into agreements in a language unknown to them. As such, they could not consent to their separation from the Mauritius, or to leave the islands. Despite having received formal legal recognition of their rights of self-determination by the International Court of Justice, separating them from what used to be the British Empire, they are yet to enjoy such rights in practice.[3] They are “powerless” aliens and pawns in the bigger game of imperialism. As such, International Law remains a European construct.[4]
Professor Anghie, on occasion of this event, reflected on the history of International Law, taking the rights of aliens as a paradigm and a test as to whether International Law can be different. He asserted that International Law is the encounter between European and non-European traditions. Yet the ways in which International Law has been created through this encounter are still overlooked. If it is not recognised that the majority of British history took place outside of Britain, then the history delivered is extremely selective. In the same way, this notion of the “powerful” alien, namely the European alien has disappeared from International Law discourse – or better, is hidden under the guise of a now ‘culturally sensitive’ International Law. To quote Professor Anghie, “Isn’t it strange that the “powerful” alien has been made invisible?”, yet it has become the paradigm for civilisation?
When imagining aliens, only the most vulnerable individuals are considered in current human rights discourse – namely, migrant workers, refugees, victims of human trafficking and stateless persons. International Human Rights instruments claim to empower these “powerless” aliens, who ought to enjoy fundamental human rights, yet are only guaranteed these to an ‘international minimum standard’ .[5] They are therefore unable to trump the sovereignty of Western States, and the “powerful” alien who continues to shape International Law. Though, the “powerless” aliens are also economic actors. Professor Anghie and McCormack use Sri Lanka as a focal case study to illustrate this.[6] They illustrate how part of the Sri Lankan population is indeed constituted of migrant workers contributing to the economy of the country, and therefore to the sovereignty of that country itself. Nonetheless, the “powerless” alien remains the current test to establish whether International Law is effective and, in this way, its role as a contributing economic actor is overlooked. The “powerless” alien indeed seems to offer something that the “powerful” alien does not – namely, the former offers humanity, solidarity and connection. For these reasons, International Law and justice remain effective in the eyes of the West, so long as the most disadvantaged, vulnerable and marginalised individuals are ‘protected’.
In conclusion, this entry has attempted to show how both the “powerful” and the “powerless” aliens, as well as the recognition of European colonial heritage, are necessary in International Law discourse, for a well-rounded picture of the issues at hand. Whilst the notion of “powerful alien” has faded away, such power is still evident in the current international community. Likewise, the notion of the “powerless” alien remains a social reflection of 19th century European imperialist ideology.
Professor Anghie has indeed not only been celebrated for his research and contributions, but also for his mentorship and advice to aspiring international lawyers. Since human beings are complex entities, and therefore also economic actors, Professor Anghie encourages the next generation of international lawyers to challenge themselves and to fight to preserve their own ambitions.
By Valentina Canepa
Notes
[1] Antony Anghie, ‘The Evolution of International Law: Colonial And Postcolonial Realities’ (2006) 27:5 Third World Quarterly 739, 742.
[2] Antony Anghie, ‘Finding the Peripheries: Sovereignty And Colonialism In Nineteenth Century International Law’ (1999) 40:1 Harvard International Law Journal 1, 1.
[3] Legal Consequences of The Separation of The Chagos Archipelago from Mauritius In 1965 (Advisory Opinion) 2019 <https://www.icj-cij.org/files/case-related/169/169-20190225-01-00-EN.pdf>
[4] Anghie (2006), 739.
[5] Antony Anghie & Wayne McCormack, ‘The Rights of Aliens: Legal Regimes and Historical Perspectives’ in Maloney & Korinek (Eds), Migration Rights In The 21st Century (Routledge 2011) 23-53.
[6] ibid.