ABSTRACT
Despite the heroic attempts by imperial mandarins to tell a coherent story about decolonization as an enlightened devolution of power (Darwin 1984: 188), it was actually a varied and heterogeneous series of events (Darwin 1988: 167-222). In the mid-twentieth century, during the formation of the key institutions of contemporary international law, much of the world was still under colonial rule. Even after the end of the Second World War, it was not evident to Britain and France that decolonization was necessarily to come at all, let alone at the speed at which it was ultimately to happen (Louis and Robinson 2003: 67). Within 18 months of the end of the Second World War the Cold War had begun, and despite its dislike of overt imperialism, the United States considered it to be in its strategic interests to support elements of the French and British empires if it was necessary to prevent communism and/or Sino-Soviet expansion (Louis and Robinson 2003: 49). Notwithstanding the strategic imperatives of the ‘Great Powers’, however,
anti-colonial resistance was on the increase, and agitation for independence was spreading. The struggle was happening on a number of fronts. Colonial people mobilized for independence, sometimes turning to arms, in Asia, Africa and the Middle East. In addition, as time wore on, the Cold War’s relationship to decolonization became increasingly ambiguous, for while the United States had initially tempered its anti-imperial stance for reasons of Cold War strategy, by the end of the 1950s it was perceived by many, including Harold Macmillan, then prime-minister of Britain, that East-West rivalry over the Third World could have an enormous impact on the outcome of what was looking increasingly like an inevitability (Macmillan 1972: 203). Indeed, even by 1957, ‘it was understood [by the Great Powers] that independence for co-operative nationalists was the best chance of saving Africa from communist subversion’ (Louis and Robinson 2003: 63). In this heterogeneous unfolding of decolonization, international law was
both more and less significant than is often suggested. It was less significant than elite historiographies of human rights would have us believe, for it was
by no means clear that the UN charter rendered colonialism unlawful, nor that it even intentionally provided for a regulated transition to self-government for most of the colonized world. Nor did the Universal Declaration of Human Rights (UDHR), whatever its own legal status at the time, prohibit imperialism. However, it was more significant than in the realist interpretation of events, for it was not simply epiphenomenal, whether to the struggle of the colonized or to the fatigue of the métropole. Its overlooked significance resides in it having a juristic monopoly, or in the fact that it was already the universal juridical frame covering the globe. This coverage meant that international law could provide a structure by which the heterogeneous movements for decolonization could be smoothed into a coherent story and ‘be contained within the broader frameworks set by western interests’ (Holland 1985: 112). Thus, on one hand while international law did provide a language in which claims for decolonization could gain a certain audibility, on the other it locked in nation statehood as the only way to claim legal personality. The price of audibility was thus the nation state form and, crucially, the universal historical narrative in which that form was situated. Beyond the nation state form, this narrative limited the possible outcomes of independence more generally, and opened the way for the project of the wholesale transformation of the decolonizing societies to be both internationalized and institutionalized through the concept, discourse and machinery of development. The ambivalence of international law’s role in the story of decolonization
points to a complex duality of international law’s character. Law has contradictory dimensions: it is both regulatory and emancipatory, both imperial and anti-imperial. In my argument, the duality hinges on a ‘critical instability’ at the heart of international law. The instability is ‘critical’ in both senses of the word – critical of and critical to – in that it both undoes and impels international law. It arises from the way in which international law first claims to be universal, and secondly, carries with it a certain promise of justice, whether that promise be symbolic or imaginative. In relation to the universal claim, law is the ‘place’ or ‘moment’ where the generality of rules meets the specificity of the facts to which they apply. And yet both ‘law’ and ‘fact’ are mutually reconstituted in that moment. In relation to the second, it is the place where positive rules or actual institutions meet and always fall short of the promise of justice; the enlightenment’s legacy to positive law. And yet international law’s failure to live up to its promise of justice continually breathes life back into it, as people continue to make demands for justice in the idioms of law and rights. Arguably this critical instability, arising from the promise of justice and
the claim to universality, is what attracts political battles to the language of international legality. My retelling of the decolonization story seeks to track at least one of these battles in that context. But in accordance with the
purpose of this volume, I seek here to tell the story in an idiom influenced by current theoretical (re)conceptualizations of the ‘event’. Accordingly, the emphasis here lies on what we might think of as ‘the political’ moment of law, or on a (re)discovery of the ‘eventness’ of international law itself. What such an idiom can bring to the theoretical observation about law’s ‘critical instability’ is a way to highlight the moments of deliberation and choice, and ultimately contingency, in a story usually told as part of a historical unfolding of events in which international law serves in a straightforward way as a vehicle for a progression to a more equal world governed by law. Drawing on the new language of the event helps us to understand the way in which (international) law is involved in the production of common spaces or shared experiences, and institutions as a form of life. The moments of deliberation and choice that we wish to tease out are, therefore, not those presented as ‘options’ in an already institutionalized political discourse, but nor are they unconstrained by their context. In a sense, they are the situated but ‘meta’ choices that determine what paths will seem open to us at any given point. In other words, we are trying to get at both what is made possible and what is made invisible by the (legal) frame of the discussion itself. In this retelling, we are thus challenging the ‘smooth’ story of decolo-
nization sometimes told in the register of liberal internationalism. But we are also challenging aspects of the idiom of the event, particularly as pure irruption, for we see that the events around the struggles for independence, though politically radical, cannot be thought of simply as irruptions of the new. They are also part of a longer trajectory of resistance and repetition in (international) law. As we shall see, when the excess of law’s categories irrupts through the ostensibly smooth surface of the law, that excess is quickly contained, in this instance by the discourse of development.
