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REVIEWARTICLE

International Law and the Spirit of Anti-Colonialism: Europe Fights Back


Anthony Cartyn
Matthew Craven, The Decolonization of International Law, Oxford: Oxford University Press, 2009, 304 pp, pb d24.99.1

The theme of international law and colonialism has given rise to a fair amount of international law literature, but mainly from the margins of critical legal theory, the outstanding gures being Martti Kokenniemi2, AnthonyAnghie3 and Nathaniel Berman.4 They argue that international law was complicit in facilitating colonialism, for instance through the use of unequal treaties, the manipulation of doctrines of recognition of statehood and the acquisition of property rights abroad, especially over land and natural resources. It is important to realise that their argument is not that at the time international law resolved upon a clear, systematically convincing conceptual framework for colonial activities. Anghie in particular lays out the arbitrary use of concepts such as treaty, recognition of legal personality and statehood, which were always entirely left to the discretion of the Western powers. This will make it all the more slippery to state categorically what can be meant by the decolonisation of the discipline. The three gures cited continue to argue that international law is still permeated with the colonial
n On leave from the School of Law, University of Aberdeen, at the Faculty of Law, University of Hong Kong, Sir Y K Pao Chair of Public Law.

1 The book under review has received a distinction from the European Society of International Law. 2 M. Koskenniemi,The Gentle Civilizer of Nations (Cambridge: Cambridge University Press, 2002). 3 A. Anghie, Imperialm, Sovereignty and the Making of International Law (Cambridge: Cambridge University Press, 2004). This work deals most extensively with the history of the unequal treaties concluded especially with African chieftans. It points out the diculty facing an analysis of events of imperialism through the prism of international law. Anghie argues that the positivists preference is to stick to the text of the treaties and not to concern himself with the violence which nearly always accompanied their conclusion. He also notes the more fundamental contradiction between concluding manifestly unfair agreements with entities whose uncivilised character could be the only justication for such treatment but which at the same time could not really be considered competent to conclude any agreement. Anghie quotes the primary authority of the time, Lasha Oppenheim, that there was not a satisfactory explanation of how the entities could conclude agreements at all.There was perhaps more to be said for the view of the great colonial administrator, Lord Lugard, who thought the treaty making process then practiced was a naked deception and that it would be better to found title to force and justify it in terms of the so-called inexorable law of progress. 4 Nathaniel Berman is not the author of a single monograph, although a collection of his writings have appeared: Passions et Ambivalences, Le colonialisme, le nationalisme et le droit international (Paris: Pendone, 2008). For the purposes of this review, Bermanns key piece of psychoanalytical historiography is Les Ambivalences Imperiales in H. Ruiz and E. Jouannet (eds), Droit international et imperialisme en Europe et aux Etats-Unis (Paris: UMR de Droit Compare, 2007). He brings to critical reection on international law a mixture of cultural, anthropological and psychoanalytical material.
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Published by Blackwell Publishing, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA

International Law and the Spirit of Anti-Colonialism: Europe Fights Back

heritage,5 while Craven presumably aims to draw a line under this history. Yet neither side is able to point to a coherent, workable discipline, and therefore it is questionable whether it is really essential to extricate international law from this heritage as distinct from rethinking it from scratch. Craven endeavours to call into question this anti-colonialist legal writing, but he does not engage with it directly. Aside from occasional references to Mohammed Bedjaoui, he does not consider the claim of the authors just cited that international law has been complicit in colonialism. This makes his work a solitary eort. A book that goes against the current ^ at least in a conned eld ^ and might even be characterised as politically incorrect needs careful consideration. Its subject is topical in at least two respects. There are wars in Afghanistan/Pakistan and Palestine/Israel which have the character of classical liberal imperial ventures. That is to say, they are marked by a civilisational belief: states such as Iraq, Afghanistan and now probably Pakistan need to be brought up to a level of legal culture in terms of human rights, democracy and rule of law, an aim that may require the use of force, albeit that it is desirable that this force be internationally authorised. Since at least the summer of 2009, grave concern has been expressed in the British Parliament that such goals are too unfocused to be achievable.6 Secondly, the fragile or failed state, and the conicts usually attaching to it, is a phenomenon that now aects 600 million people, according to a recent World Bank estimate.7 In other words, it would be surprising if there were no propagandists for a continued colonial role for international law. Does international law not need its Niall Fergusons to call theWest back to the White Mans Burden? But this is, perhaps strangely, not Cravens goal. His aim appears to be the more modest one of somehow disentangling the discipline from anguishing about colonialism. An additional aim which he might have would be to remove Europe from the whole idea of worldwide involvement. This latter aim would inevitably have the eect of disentangling the practice of international law from colonialism. International law would then revert to being European International Law. This is not explicitly stated in Cravens book, but it is a possible reading of it. At the heart of the book lies a single comparison. On the one hand, Craven examines the debates in the International Law Commission on the drafting of the Convention on State Succession to Treaties (the Convention). He stresses above all the opposition between Western and Third World views of international law doctrine, with special reference being paid to the towering gures of D.P. OConnell and Mohamed Bedjaoui. Craven follows this with a shorter review of the UN Conference on the Convention. The second part of the exercise is to consider
5 See the discussion of the new international administrations under the auspices of NATO and the UN in A. Orford, International territorial Administration and the Management of Decolonization (2010) 59 ICLQ 227. 6 See eg House of Commons Foreign Aairs Committee,8th Report ^ Global Security: Afghanistan and Pakistan (21 July 2009). 7 See eg the World Bank website Projects Strategies: Fragile and Conict Aected Countries, last updated 13 Sept 2009. The World Bank says poverty rates range to 54% compared to 22% for low income countries generally. The World Bank attributes the poverty and conict to weak institutions and the impact of warfare. The solution has to include core services such as security, rule of law as well as the usual public services of health, education and social services.

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the legal succession aspects of the dissolution of the Soviet Union, the breakup of Yugoslavia and the reunication of Germany, with the extinction of the German Democratic Republic. While these incidents are given universal signicance by Craven, he is careful to distinguish the former experience of codication as now irrelevant. A question hangs over this comparison: are the circumstances of the 1990s comparable to those of decolonisation in the 1960s and 1970s and, if they are not, does Craven consider that the decolonisation-type situation will ever again need to be addressed? It may be remembered that the charge Koskenniemi, Berman and especially Anghie make is that the problem of decolonisation itself, quite apart from what international lawyers may say about it, remains unresolved and continues to haunt international society. The central issue in the rst wave of decolonisation was the right of new states not to be bound by agreements made on their behalf without their consent. All the articles of the Convention are concerned, in one way or another, with this single question. Craven argues indirectly, by the eect of his comparison with the 1990s, that the Convention did not make a serious contribution to international order. A series of provisions which relate to the concern of new states not to be bound to treaties, whether bilateral or multilateral, made on their behalf before their independence treats exhaustively only one problem.The Convention provides that the new states may regard the treaties as provisionally binding, but then may resolve that they wish to notify their explicit withdrawal. The other states parties in a multilateral treaty may equally decide they do not wish to be parties to the treaty with the new state. Neither side need give any reasons. In the case of the bilateral treaty, the other side is accorded no such right. The treaty will not continue to apply unless the new states expressly consent or a mutual consent can be read out of the conduct of the parties. That is all. The whip hand is entirely with the new state, which need give no reasons for its choice.8 As Craven points out in his book, Humphrey Waldock, the Special Rapportuer to the International Law Commission, drew up these articles to reect what he thought state practice was. The practice of the UN in registering multilateral treaties inclined him to think that they were, at least provisionally, applicable to new states.The practice of exchange of notes with respect to bilateral treaties indicated that a more express adoption of the treaty by the new state was required. Indeed, Lord McNair, perhaps the leading English authority on treaties,9 thought the clean-slate approach was justied by a history going back to the 18th and 19th centuries, reaching a peak with the independence of the Latin American states around the 1820s. Nonetheless, Craven considers this concentration on a single issue obsessive and unhelpful as a comprehensive treatment of the problems of state succession to treaties. In the 1990s, with the breakup of a superpower ^ a major multiethnic state and nuclear power ^ Craven argues that the international community paid little or no attention to what individual states chose or chose not to agree to with respect to treaties concluded by the two old states. The focus was much more on the maintenance of international order, in particular the maintenance of human
8 The Vienna Convention on Succession of States with respect toTreaties, signed 23 August 1978. 9 A.McNair,The Law ofT reaties (Oxford: Oxford University Press, 1960).
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rights provisions and ensuring the security of world society in a context where nuclear weapons could proliferate and fall outside the regulation of the Nuclear Non-Proliferation Treaty. Craven takes the clarion call here to be whether, in the words of James Crawford, one or more states could irresponsibly withdraw from rules of international order and put the rest of the world community at risk (233). About such matters the 1978 Convention had nothing to say. But in respect of the independence movements in the 1990s, the question remains whether these public order concerns ever really arose because of deant individual states, trigger happy with respect to nuclear weapons or openly deant of the legality of international human rights norms. Craven does not give any indication of any such dicult states. It might well be the case that, as in the 1960s and 1970s, most so-called new states accepted most treaties made on their behalf, so also most newly independent states in the 1990s had no interest in questioning the values of the international order and were mostly happy to accept existing treaties continuing to apply to their territories. This might have been because international law really has no more conceptual tools than the concepts of treaty, state will and consent, whether express or implied or denied, to deal with either decolonisation or with the end of the Cold War.

THE MAKING OF ANTI-COLONIAL INTERNATIONAL LAW AT THE UNITED NATIONS IN THE 1960S AND 70S

Cravens book contains a very technical discussion of one aspect of the attempt to codify the law of state succession in the 1970s. In this exercise, as a matter of law, the issue was whether newly independent, former colonial entities and now states were bound by treaties concluded by the previous colonial power, or whether they were entitled to come into existence on the basis of a clean slate, with no attachments. With some qualications, one can say that, in Cravens view, an approach to the international law of state succession with respect to treaties which asks such questions has now been abandoned. However, the practice which Craven resorts to in order to establish this point relates entirely to Eastern Europe after the fall of the Berlin Wall. The geography is not necessarily signicant in itself, but it becomes signicant as a result of comments Craven makes about the earlier debates when he is discussing the 1990s. Craven is critical that the idea of the clean state, with respect to succession to treaties, was tied to the aspiration that newly independent third world states could really assert themselves as new states in the face of a continuing neo-colonial international order. The broad sweep of Cravens analysis of Eastern European practice, in contrast, is that the new imperatives were very strongly in the direction of ensuring that, for example, treaties on human rights or nuclear weapons, being of a public order character, would be required to be upheld: that is, they would continue to bind new states. However, even Craven hesitates to attribute to whatever order preserving measures that were taken in Europe at that time the status of clear legal principles as opposed to pragmatic compromises or bilateral agreements.
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A major diculty with international law ^ and hence inevitably with this book ^ is that it does not possess a concept of the state or of legal personality that could be interpreted as a full blown commitment to any vision of collective or community identity.Without such a concept, how can international lawyers ask such a general question as whether states are oppressing one anothers fundamental character or rights? It remains instead merely a matter of ascertaining whether agreed rules of law are being transgressed. Craven is perfectly aware that this is a central issue in the controversy attaching to international law and colonialism. On the one occasion when he engages with Anghie (21) it is to pose the question whether international law has internalised an imperial ideology of domination in which the colonised other is constructed as a constant object of intervention.This is only a very general reference to Anghies work and does not engage with the detail of his argument. As has been mentioned already, Anghie is concerned that international law concepts could be manipulated by the Colonial Powers so freely as to have no clear meaning.This was not only the case with respect to treaties and concepts of consent, but also with the use of recognition by the Colonial Powers to confer legal personality on non-Western entities. Recognition is the only concept international law has to designate an entity as a legal person in international law. It is conferred by existing states on aspiring states. This recognition practice was done, in Anghies view, in an instrumentalised way that had no regard for the integrity of non-Western peoples.10 Almost as an afterthought, Craven points out towards the end of the book (216) how it was OConnell, the main protagonist of Western views of the continuity of treaty obligations, who realised ^ as Craven puts it ^ that international law does not work with a concept of personality from which it is possible to draw legal consequences as to the rights of individual legal persons. In other words, it has no legal concept of a collective identity to which rights and duties attach automatically. Rather, international lawyers use personality merely to designate legal capacity itself and look to the legal order to dene what these capacities are. It may be said that a subject of international law is an entity to which the rules of that legal order are addressed, eg treaty rules apply to states.The community of states directs this rule to individual states, which accept the direction and consent to it voluntarily. There is no concept of identity attaching to any of these abstract, formalised entities.TheWestphalia Settlement assumed any entity that could sign treaties or wage war independently of another authority was a state. Craven, in turn, merely follows OConnells view on this matter (on which see below). It is impossible for a strict positivist even to attempt to argue that states should be expected to fulll certain standards for statehood, such as acceptance of succession to treaties, before they are admitted to the international community. How can an entity give a valid acceptance of an obligation as a condition for the granting of legal personality to it, if the personality itself is required before there can be a valid acceptance by the very same entity? Such very strict legal voluntarism aects Cravens discussion of succession issues during his close reection on the process of attempted codication of the law of

10 Anghie, n 3 above, 75^96.


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state succession to treaties.The succession issues were really substantial in terms of classical style colonialist struggle.Western countries were keen to have quasi-independent colonies, ie their colonies just before independence, to conclude agreements which eectively guaranteed the colonial powers their regimes of acquired property rights in those colonies. Lawyers, such as OConnell, would argue that the colonies were anyway partially governed by democratically elected assemblies. The type of Western argument used was that the process of moving gradually towards independence should not treat international law statehood as a rupture in legal terms but merely as a continuation of the same entity ^ hence the entity being bound by its acts. OConnell was a scholar of world rank at the time, dying relatively young in 1980 (87^88 & 145^147). The irony which besets Cravens book is that legal positivism ^ that rules of international law are declared by the will of states and then directed by states to one another ^ was a factor that united Mohamed Bedaoui, the leading proponent of third world views and arch opponent of OConnell, and Humphrey Waldock, Oxford Professor of International Law, and Ocial Rapporteur for the International Law Commission. They could easily agree that new states could not be asked to succeed automatically to any agreement on the point of and as a condition of a new state obtaining independence (119^127). A treaty had to imply agreement. That was its nature. Of course rules of international law would have to be accepted by new states.Yet under a will theory of legal positivism, where all states are participating through their consent, the number of rules are going to be thin on the ground. In the debate in the International Law Commission, the third world lawyers focused on the idea that special rules were needed to liberate them, as former colonies, from treaties applying to the colonies upon independence.Yet general international law could not in any case understand the idea of automatic succession to treaties, because the general rule was that treaties could only apply to states actually parties to them.11 So when it came to nal drafting of the Codication Convention the dierence between the two sides boiled down to a presumption that former colonial states were not to be bound by bilateral treaties that had formerly applied to their territories, unless they explicitly consented. Other, presumably non-colonial new states, eg the product of the dissolution of a union in the non-third world zones, were to be presumed to be bound by comparable treaties unless they explicitly dissented. From the start, then, the third world legal struggle on which Craven bases his argument for the erasure of that world, was without substance precisely because of the unifying factor of legal positivism. Although Craven does not himself make the point, it would appear that international law does not have the conceptual resources to take sides at all in the end stages of colonialism. There is little way that legal positivism can show partiality for either side, because it has no independent concept of legal personality ^ it has merely a system of rules.
11 Craven points out in his exhaustive history of international law doctrine in the late 19th and early 20th century that the idea of universal succession to treaties or other international legal obligations, coming out of German and Italian unication, was marginal compared to the extinction of public obligations of non-Western entities taken over by colonial powers, eg Hawaii and the Boer Republics (45^51).

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By way of illustration, Craven highlights an attempt by the International Law Commission to extend the concept of colonial state to a universal form to cases where a political entity could be said to be in a relation of subordination to another. Not surprisingly, a universalist voluntarism ^ a theory of law as exclusively a product of state wills directed to one another ^ would not be able to handle conceptually the idea of unequal or oppressive relations. At the Conference itself, a provision to cover this situation was deleted (172^173 & 198). The codication process, as Craven points out (65 & 114), avoided any theoretical or conceptual denition of any basic concept, whether it be sovereignty, state, nation or self-determination. Without any concept whatsoever of legal subject in relation to other legal subjects ^ as distinct from all such subjects being equally addressees of its legal norms ^ how could international law support any serious argument about the quality of relations among its subjects? Indeed, Craven shows how much care the International Law Commission took to avoid any attempt at evaluating recent colonial history. The denition of succession ^ the replacement of one state by another in the responsibility for the international relations of a territory ^ avoided debates about whether a previous state enjoyed rights of sovereignty in the rst place; but it also failed to say whether its ownership had been legitimate (57^58). Its survey of state practice also avoided discussion of any question of legitimacy, of how or why succession occurs (65 & 114^115). Craven recognises that this leaves international law with no legal means of arguing about colonialism. So he concludes that either one must accept terminal uncertainty about the consequences of succession or else engage with the facts of the political processes leading to the succession, and thereby fall into selfjustication (66), a reference to the absence of objective legal standards or compulsory legal authority to judge state conduct.
THE SPIRIT OF THE NEW EUROPE AND THE DISAVOWAL OF ANTI-COLONIALISM

So the question now squarely poses itself: has Craven not set himself a hopeless task in writing the decolonisation of international law by means of a history of the codication process on succession to treaties? Has he not trapped himself within a traditional international law framework by undertaking to give a meticulous account of the codication process during the 1960s and 1970s and then follow it up with another detailed analysis of practice after the end of the Cold War, with the break up of Yugoslavia and the Soviet Union? It might appear that he has used a positivist, inductive legal method to show a transition from the actual state approach to succession to treaties of the 1960s and 70s, to the practice of the 1990s. He himself concludes that attempts by anti-colonialists to shape a new type of international law in the 60s and 70s failed since this earlier experience was ignored in the 1990s. Yet, once again one can think of objections to the construction of any substantial argument about international law and decolonisation. It is so easy to distinguish the two situations. 30 years are nothing in the international history of states. Anyway, the very meticulousness of Cravens
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scholarship defeats his own argument once again, because he himself shows how ad hoc and without clear principle the practices of consent and withdrawal of consent in the 1990s actually were (267). Therefore, can it be said that Craven has demonstrated by default that international law is not capable of supporting any ballast, whether colonialist or anti-colonialist? Legal positivism wanders aimlessly without a referent (which should be some substantive notion of what is a collective legal subject). In fact, international law does not have a subject ^ such as an oppressive state ^ nor an object ^ such as a suppressed people waiting to be liberated. After all, Bedjaoui andWaldock could come together to say that the oppressed could not accept their oppression in binding legal terms simply because the legal non-existence of the former meant they could not accept anything. At the same time, one could not identify a state as a liberated nation because international law never embraced nationalism as a foundational idea. The state was still always just something factually there ^ present. Craven does, however, have a radical thesis that undercuts the argument of Anghie, Koskenniemi and Berman that international law has been and continues to be complicit in colonialism. He claims that a denite break has occurred and that international law can now be said to be decolonised. A diculty with reconstructing a debate with his potential protagonists is that he barely mentions them. Cravens method remains positivist. There is still a clear disapproval of aspects of the colonial practice. Craven nds it incongruous that OConnell can note how, in the heyday of colonialism, Britain would not accept the public debts and agreements of African kingdoms which it had conquered, but then nds it perfectly acceptable that, on coming to independence, African colonies should be tied to property and treaty arrangements the colonial power wishes to leave behind (45^ 51). Nonetheless, it is necessary to look more closely at Cravens treatment of the Eastern European scene after 1990 to understand his overall view about the signicance of colonialism. Again, in looking at the 1990s, he engages only with state practice and mentions almost no post-colonial or anti-colonial doctrine. Strangely, it is here that one catches more than a glimpse of what Craven really thinks of the agenda of the colonies breaking their way out of empire to independence. It is not Cravens positivism which is most illuminating. That positivism gives him the broad impression that any talk of new rules on state succession, even in the 1990s, will need to be qualied by specic instances of contradictory practice. Instead, what one is trying to do here is to piece together a series of Cravens attitudes, not conceptual propositions as such. Attitudes are not prejudices in a pejorative sense, distorting vision. They are rather the value presuppositions which shape the authors agendas. Inevitably, they usually lead to highlighting some issues and discounting others. I believe the most fruitful way to read these attitudes is to look to a study by his colleague Berman, called Imperial Ambivalences.12 Berman oers a type of psychoanalytical reading of international law texts based on the work of Melanie Klein and Helene Oppenheim Goodman. He uses this material to engage in dis-

12 Les Ambivalences Imperiales n 4 above.

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cursive analysis of texts of leading French international lawyers, whether nominally progressive or conservative.The originality and sensitivity of this style of analysis is that it does not assume the author has a worked out political agenda. Rather, Berman is concerned with how the author manages his own anxiety and feels persecution on the part of an object. Following Klein and Oppenheim Goodman, Berman notes how the author, for him the international lawyer, will split a response to a threat into two parts, good and bad, through projection and denial. One part of the threatening object is accepted and the other part rejected. The anxious subject then enters into alliance with the pole (separated) which can be disciplined into behaving in an unthreatening way. There is a second kind o doubling which internationalists acknowledge, with varying levels of self-awareness, which is called disavowal. For Oppenheim Goodman, the subject continues to be capable of discourse about an event, but the path which would go from this discourse to lived and felt experience is blocked. Disavowal then designates the simultaneous acknowledgment and denial of a troubling reality. It is not a psychotic denial of reality but a mechanism to evade the implications of that reality. It operates through an ego split, one side of which acknowledges the reality, while the other side repudiates the meaning of the perception and substitutes a fantasy that protects the individual from the anxiety he would otherwise have to face.The writer protects the integrity of his discourse and his subjectivity in the face of a reality where power and principle seem to be irremediably divided. What is crucial to observe now is the strange manner in which Craven distinguishes the decolonisation of the 1960s and 70s from the events of the 1990s. It is dicult to see any reason for making this comparison because the situations themselves are so dierent, also in Cravens eyes, because he rejects the attempt of Rein Mllerson, an Estonian and former Soviet, to treat the dissolution of the Soviet Union and the former Yugoslavia as a continuation of decolonisation. Instead, Craven follows Koskenniemis view that one has primarily to do with changes in ideologies of government ^ from communism to liberal capitalism (210^211). None of this analysis attempts to address the signicance of the events of the 1990s for the Slovenians, Croats, Bosnians, Ukrainians, Georgians, Armenians or whatever. While earlier in his book Craven was quite even handed between OConnell and Bedjaoui, now the lines are clearly drawn. The agendas of promotion of selfdetermination and liberation fromimposed agreements are not applicable to the new situation. There is now a clear preference for OConnell, whose desire in the 1970s had been to put aside the concept of self-determination as merely a variant of sovereignty and thereby deradicalise the process of decolonisation and dissipate the destabilizing eects of national self-determination (221). Now, in the 1990s, the Convention on State Succession with Respect to Treaties could be marginalised and one could look to the eective removal of the shadow of the lasting image of colonial rule. Craven thinks that the lesson of the 1990s is that now one can expect a process whereby there is no longer any focus on questions of status, or the nature of the events giving rise to the succession issues. The issue now is how succession might aect the stability of expectations and the rule of law in the international community. The international community should not have to sanction lawless disrespect for existing engagements (214^215). Craven also
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speaks of the Manichean divide drawn by the International Law Commission in the 1970s in its codication of the Convention between the metropolitan power and the overseas territory whose decolonised population has undergone a political amputation (217). This disapproval of nationalism ^ which Craven did not allow himself to reveal openly when discussing the 1960s and 1970s ^ becomes clear as the author concludes that, whether or not political passion might come into play with independence, continuity of obligation is necessary to ensure the triumph of reason over passion (231^232).The events of the 1990s represented the liberation of policy makers from arguments about sovereignty or consent, what Craven calls the faddish insistence upon the necessity of consent (233 & 236). While a central issue was whether the European Court of Human Rights should continue to apply to new states, Craven points to no case of a recalcitrant state where the matter of continuity was a contested issue. Craven himself recognises that whatever the desirability of automatic succession to the Nuclear Non Proliferation Treaty ^ itself clearly a major issue of world public order ^ the declarations of adhesion to the Treaty were treated in practice as the equivalent of declarations of succession (250). So, he himself accepts that there could be no question of automatic succession to disarmament treaties (251). Therefore, it is not clear that any states were ready to mount a challenge to a principle of continuity or that the latter could not easily be achieved through one or other mechanism of consent, without recourse to a legal rule of automatic succession. One may now wonder also at Cravens introducing, for the rst time, the comparison between theThirdWorld moving from the pre-modern to the modern in the 1960s. In contrast, he says that Europe in the 1990s oered only alternative models of the modern state (266^267). It may help in understanding this very strong distinction to consider Cravens use of Carl Schmitt as authority for the distinction between the periphery of Empire and the heartland of Europe. As a way of addressing the issue of decolonisation, Schmitts appearance is unexpected. Schmitt argued that colonisation itself had been facilitated by a belief in dierent standards of international law in dierent parts of the world during the founding epochs of colonialism ^ a freedom beyond the European theatre. This had facilitated colonialism in the rst place, as European powers could ravage one anothers colonies and still leave one another relatively alone in Europe. In any case, Cravens main point is that the 1990s were not concerned with bringing international law into line with a postcolonial consciousness. There was no Bedjaoui arguing this; nor was there a Nyerere denouncing the validity of agreements concluded by colonial powers (264). Of course, this can only be the case because, as Craven argues ^ questionably ^ the context was not even colonial in the 1990s. In terms of Bermans analysis, what is going on here is rather more passionate than intellectual. Having provided a microscopic and apparently even-handed account of the drafting of the Convention, Craven convinces himself that in less than 20 years the Convention became defunct because it was ignored in circumstances which he himself considers totally dierent ^ although he might have sided with those, like Mllerson, who thought them similar. It appears to the reviewer that Bermans use of the concepts of split and disavowal to critique French international law doctrine applies to the radical change in Cravens
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treatment of the separation of the periphery of the world from its heartland in the 1960s and 1970s, compared to the pragmatic dissolution of states in the Eastern Europe of the 1990s.The earlier passionate anti-colonial appeals to self-determination give way to reasoned management of problems in the spirit of the New Europe. Perhaps the distance in time makes it safer now to undertake a critique of the decolonisation period as it aected Africa and Asia. These phenomena of the breakup or end of Empire may now be seen as limited in their repercussions. The new patterns of separation are now manageable and no longer threatening, even although innumerable fresh states came into existence. Yet there have been two massive breakups in both cases, both, in part, very violent. They could both very well be described as cases of separation and self-determination. In fact, it must surely be Cravens intention that the very similarities of the two periods should serve to allow the second sequence of events to be the occasion for denying ^ ie splitting and disavowing ^ the signicance of the rst. Is Craven disavowing, in Bermans language, the possibility that in future a rupture among states, leading to secession, might provoke what he would regard as forces of resentment to cause unmanageable international disorder?

THE EVAPORATION OF THE FADDISH INSISTENCE UPON THE NECESSITY OF CONSENT TO TREATIES

I intend to explore further Cravens approval of the absence of the faddish insistence upon the necessity of consent in the 1990s. The role of consent to treaties is obviously central to his study and so careful attention should be paid to the view that excessive insistence has been placed upon consent in the past. Equally, the nature of consent to treaties and contracts is central to the work of Anghie.13 In an article What happened to Unequal Treaties: The Continuities of Informal Empire, Craven argues that the phenomenon of unequal treaties appears to have largely evaporated as an issue from the domain of international law (UT, 335).14 Craven quotes French (Reuter) and Swiss (Calsch) authors to say that the doctrine of unequal treaties as a matter of law serves only as a political argument possessing no legal status at all ^ this in 1992, 50 years after the conclusion of the Anglo-Chinese Friendship, Commerce and Navigation Treaty of 1943 which brought the unequal treaty port regime in China to an end, and shortly after the conclusion of the Anglo-Chinese negotiations on Hong Kong, where the Chi13 Anghie, n 3 above, 111 & 211^235, identies as a primary mark of the continuing inuence of colonialism on the international legal order the fact that treaties known to have been unequal are still regarded as valid law. The continued contest around the issue of consent dominated third world conicts with the West over the regime of acquired rights of foreign (ie Western) companies in the third world. Apart from the issue of economic and other duress, there was the question of how a third world state could be bound by an agreement with a foreign private party. Anghie shows the adamant insistence on this by the West in United Nations General Assembly debates about sovereignty over natural resources from 1962 until 1974, when theWest and theThirdWorld divided on the question. Anghie might say the West was making afaddish insistence upon the need for its consent to the giving up of the rights it had formerly acquired in its colonial territories. 14 (2005) 74 NordicJournal of International Law 335, 335. References to the article will afterwards be in the main text as UT.
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nese leader, Deng Xiaoping, steadfastly resisted any mention of British Treaty rights or sovereignty in insisting upon Britains unequivocal departure from Hong Kong as sovereign. The concept, in Cravens opinion, seems to have been consigned to the dustbin of redundant ideas (UT 337). This supposes that what is not mentioned in Europe is absolutely forgotten. Yet Dong Wangs Chinas UnequalT reaties dates from 2005.15 In such a context of apparently obsessively forgotten ideas, Craven sets himself the task of oering a speculative narrative that seeks to interrogate why the concept (or if one prefers, the phenomenon) has been so completely denied a place in what Craven calls our current imaginings of international law. Whether there should be succession to treaties where relationships were coercive is intimately related to the question of whether international law can understand the very idea of a coercive relationship, with the consequence that an unequal treaty would be invalid or otherwise voidable. Remember that, for Craven, the value of the 1990s experience was that it allowed one to approach succession questions pragmatically. A problem solving approach, in Cravens words would involve focusing somewhat less on the nature of the events giving rise to the issues, or to the character and form of the wide relations in which the problem is located and would place correspondingly greater emphasis on the nature of the legal relations in question (214). In some respects, the conclusions of Cravens article are, once again, ambivalent. With respect to China, the main historical-legal conclusion Craven reaches is that the Chinese inability to recognise or understand the notion of diplomatic or juridical equality made the British consider unequal treaties necessary(UT, 355). He notes that there is a dependence here upon the self-evident nature of the legal assessment of facts, whether concerning the presence of coercion or its nature in general. For instance, in Chinese eyes the Treaty of Nanking might have fallen within terms of the illegal use of force, but this would most likely be countered by the British speaking about their recourse to arms as having been in selfdefence (UT, 373). To the extent that any use of coercion is likely to be accompanied by some justicatory discourse, those disputing the validity of an agreement would be constantly ghting a rearguard action (UT, 373). Nonetheless, the European powers insistence upon formal equality was, Craven himself readily accepts, comprehensively undermined by the presence of military forces that gave the lie to the non-hierarchical relations they espoused (UT, 356). So Cravens continued ambivalence shows itself in his apparent belief that any layperson could see clearly the evidence of violence by the European powers, while, at the same time, international law was not suciently developed to provide clear standards to judge the conduct of these powers. However, Craven takes the matter much further in his article, elaborating his reections on the issues of treaty and consent. He asks whether international law can understand and accept the idea that a treaty can be unequal and therefore illegal. He thinks not, and his reasons have wider implications for the nature of international law itself, which are actually related to this laws view of international

15 Lanham, Md: Rowman and Littleeld, 2005.

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legal personality. Craven says that after the founding of the League of Nations international law could more easily conceive of treaties as contracts and not as the pillars of international order they had been sinceWestphalia.They had a bilateral character depending on the autonomy of will of the parties, questions of public order being consigned to the League Council and Assembly (UT, 366^367). Craven then goes on to identify the question of unequal treaties as tied to the prior question whether use of coercion is regarded as unlawful (UT, 373). This is the context in which he mentions the OpiumWars and their conclusion with the Treaty of Nanking (UT, 373). In other words, Craven is once again drawing attention to fundamental deciencies in the intellectual and moral apparatus of international law. Again he is not openly stating it, just as he did not do so with the issue of legal personality. In this case, serious argument about responsibility in international law is laid low by the absence of legal authority at an international level.There is no impartial third party to adjudicate claims of oppression, unjustiable use of force etc. However, Craven goes much further. He argues, with Sir Ian Sinclair, that the threat or use of force does not strictly speaking vitiate consent to a treaty. It is a commission of a delict, if it is unlawful. Therefore Sinclair argues that consent needs to be stripped of its association with a factual absence of coercion. Consent is then less an expression of autonomous will and more the formal mode of acceptance of an instrument ^ signied by signature, ratication or accession in which (Cravens summary) any psycho^sociology of agreement was beyond the domain of law and in which the presence or absence of duress was largely irrelevant (UT, 374). Words such as autonomy or absence of agreement do not appear to have any concrete meaning for the system of international law. Neither duress nor its absence have any concrete referent for international lawyers. In Cravens own words:
Lawyers could rely upon a presumption of validity as a way of insulating themselves against the possibility that consent might all too often be found defective; it was for the politicians to devise ways of ensuring that untoward inuence is not exercised at the moment of negotiation (UT, 375).

Clearly the notion of unequal treaty is only a redundant idea in the sense that the international community, by which Craven means the European heartland, has tired of debates about coerced treaties and come to accept that if they continue to be made, that is the responsibility of politicians and not lawyers. Hence the real point of the comparison in the book between the 1960s to the 1970s and the 1990s is to demonstrate that the faddish talk of consent to treaties has only been abandoned in the context of succession ^ if that is in fact the case ^ in the sense that the international lawyers of the European heartland ^ Calsh, Reuter, Sinclair and Craven himself ^ are no longer willing to countenance an argument that treaties are unequal because coercion has been applied in the negotiations. Hence it was really rather silly of the International Law Commission to try to draft a convention and have it accepted at a UN Conference, which required colonised entities to give independent consent after their legal independence to treaties made on their behalf by the colonial powers. It was such pedantry which quite rightly led
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to the marginalisation of the Convention in the 1990s. Practical policy makers concerned with satisfying legitimate expectations and upholding the rule of law could safely ignore such a product of the emotionalism of colonialism.

CONCLUSION

This outcome to Cravens doctrinal reections on treaties, of which the book on the decolonisation of international law forms a part, leads the reviewer to a, for him, rather unexpected conclusion. Two elements of Cravens book ^ his very close technical mastery of positive international law and his desire to combat the legacy of 1960s anti-colonialism by someThirdWorld statesmen and international lawyers ^ have played o fatally against one another. They also defeat the force of any counter-arguments by Cravens potential anti-colonial critics. International law reduces itself to a study of voluntarism, state will and consent. Yet these are handled as logical concepts without any relation to a referent such as what Craven calls a psycho-sociology of agreement. Indeed, how could one locate a valid or legally signicant psycho-sociology of agreement if international law has no concrete, material or other idea of international legal personality, except as an addressee of international legal norms ^ themselves a product of the wills of these invisible legal persons ^ and so on ad innitum? Hence it is not really possible to see the Convention on State Succession with respect toTreaties either as a triumph of anti-colonialism or its marginalisation as a forgetting of colonialism. Even Cravens very thorough doctrinal and historical study of the key concept of consent to a treaty yields nothing. Fundamentally this is because, as Craven explains, the idea of inequality, for international lawyers, is incoherent. In the absence of some substantive agreement as to what forms of inequality are tolerable or intolerable, arguments around it ultimately undermine conditions for certainty and stability in international relations (UT, 337^338). Craven is again bringing attention to the problem of absence of authority in the international legal order. Craven may in his book be glad that in the 1990s the policy maker is liberated from the formal constraints of arguments about consent. However, even assuming that the events in Eastern Europe in the 1990s are of global signicance, it is to be doubted whether international lawyers have any language tools and concepts useful to describe sentiments of justice or injustice in the world. The expressions of sentiment in Cravens book undoubtedly oer a welcome counterweight in the otherwise unequal discussion of colonialism among international lawyers, but it is to be doubted whether either Craven or any of his largely unmentioned protagonists can, qua international lawyers, throw much light on the murky history of Western/nonWestern relations. For this miserable fact neither Craven nor, for instance, Anghie, are to blame. An international legal order that has no concept of international legal personality and no idea whether consent is necessary to the conclusion of treaties, that cannot judge whether treaties are concluded unequally and which is unable to assess critically whether measures states take in self-defense are justiable, such a system of thought, if it can be called such, is not going to aord anyone using it the prospect
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of throwing much light on anything.Working within such hopeless parameters of international legal analysis, Craven has written a book which is meticulous in its scholarship but ultimately tedious in its conclusions, except for the moral passion and conviction which Craven brings to contrasting his two chosen periods, the period of colonial independence and the period in Eastern Europe following the end of the Cold War. If this passion is to herald a withdrawal of Europe from the world it will certainly mark the decolonisation of European international law. If it is a clarion call for renewed discipline in international relations it is a brave, if ambivalent call which can expect to meet with a mixed response, perhaps also from within the New Europe.

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