Colonial Residues on International Law

From 2022 to 2023, the Georgetown Global Law Scholars Class of 2024 wrote an essay collection titled “Colonial Residues on International Law.” This blog post highlights the themes and topics from the Papers in the full collection.

 

Essay Collection 

This project considers colonial residues and imperialism’s long-lasting effects on nations and people. Throughout the nineteenth and twentieth centuries, empires “exited” their colonies. However, we may ask: have colonial powers’ imperial reigns ended? Several colonial regimes maintain extractive connections to their former colonies—through trade practices, workforce systems, and political dealings. For instance, China’s Belt and Road Initiative has potentially instituted a neo-colonial practice, using infrastructure development as a new tool for imperialism. 

Further, colonial powers’ exit blatantly resonates in the political and security issues that arise following independence. In the Philippines, after sequential periods of Spanish, Japanese, and American imperialism, political instability ensued; dictators such as Ferdinand Marcos engaged in widespread human rights abuses and authoritarian practices. These security concerns resonate in political actions and escalations to war along with global migration, refugee crises, and geographic displacement. 

In cases of such displacement, individuals impacted by colonial exit may migrate to neighboring or distant countries. Following Pakistan’s and India’s independence from Britain, the nations entered into war, and thousands sought refuge around the world. Exile and forced migration may escalate to broader humanitarian concerns and refugee crises. In some instances, diasporic communities develop as people maintain ties to their homeland while living abroad. Simultaneously, other individuals may be made stateless—without a homeland and place of return. These resonances—experienced through trade, security, legal processes, and migration—demonstrate colonial residues in a globalized world. 

Each member of the Global Law Scholars Class of 2024 contributed a Paper for this research project. Please note that the Papers do not represent the views of all members of the Global Law Scholars program, individual members of the Global Law Scholars Class of 2024, or Georgetown University Law Center. Also, this collection has been edited for purposes of publication on this blog.

 

Essay Collection Abstracts 

Colonial Residues on Trade, Finance, & Development 

Chasing Cotton: Colonial Legacies in Modern Trade 

This Paper traces the history of the cotton trade from the pre-colonial to the post-colonial period with the purpose of uncovering colonial impacts on the modern trade regime. The Paper considers colonial and post-colonial laws and policies that shaped the production of both raw cotton and cotton textiles in India, Britain, and the United States. “Chasing Cotton” aims to lend support to entities demanding an end to domestic subsidies in the cotton trade by developed economies.

 

How Important Is Monetary Sovereignty? An Analysis of the Legal Framework Employed by France to Retain Monetary Control Over its Former Colonies  

This Paper analyzes the founding agreements of the monetary unions, central banks, and the monetary cooperation relationships between France and its former colonies that created the legal regime of their modern currency. Through this analysis, this Paper highlights the express and implicit methods of control exerted by France and the imbalanced terms in the agreements that disproportionately benefited France.   

 

The Dark Brew: The Coffee Industry and Neo-Colonialism in South America 

This Paper examines the origination and the current layout of the coffee industry in South America and the colonial influences on its development. Particularly, the change of taste of U.S. consumers in the 1980s led to the end of a major international treaty impacting South America’s international coffee regulation. Smaller farmers and coffee growers particularly struggle in the international currents. Ultimately, this Paper proposes that international organizations, including several minority population alliances, should aid the coffee industry and promote equality for minority coffee growers.

 

The G20’s Surveillance of the Global Financial Market as a Form of Neo-Colonialism  

This Paper discusses the international reach of financial markets, their colonial origins, and modern neo-colonial aspects. It traces how, during the colonial era, Western countries formed international financial organizations to control the economic development of former colonies and established “spheres of influence” under the principles of cooperation and fragmentation that objectively protect western economic interests. It further contends that the G20’s role as the surveyor of the global financial market is a contemporary form of neo-colonialism that asserts control over developing economies through the guise of regulation. 

 

China’s Global Ambition—Is China Neo-Colonialist? 

The Belt and Road Initiative (“BRI”) is one of the largest cross-continental investment projects initiated by China. As one of China’s global ambitions, BRI extended from Asia to East Europe and to Africa. Unlike other international investment projects, BRI does not establish any multilateral treaties with member countries. Instead, BRI takes the “soft law” approach to bypass international treaty obligations. Many believe that BRI is neo-colonialist in nature because China abuses its economic dominance to impose unfair investment clauses on other member countries, in exchange for their support for China’s diplomatic policies, military expansion, and demand for raw materials. On the other hand, some proponents of BRI argue that those critics neglect China’s long-term cooperative relationship with African countries and its own colonialist history. This Paper examines both sides’ arguments and proposes the interdependence theory.

 

Colonial Residues on National & Regional Security 

Semi-Autonomy & (In)security: Ambiguity in the Hong Kong SAR’s Basic Law  

Under British administration, Hong Kong thrived as a global economic, trade, and financial juggernaut. Hong Kong’s own drive, the UK’s laissez-faire policies, and the rest of the world’s cooperation thrust the region into the development of a substantial international legal personality. This was largely preserved in the 1984 Joint Declaration and the 1997 Basic Law to balance Chinese interests in reestablishing territorial integrity with the very different and real conditions on the ground in Hong Kong. However, Hong Kong’s autonomy in the new Hong Kong Special Administrative Region was left sufficiently ambiguous in multiple respects to enable Beijing to reinterpret, amend, and expand the Basic Law along the way if it deemed necessary to do so. The world has already seen instances of China doing just this. Last year marked the halfway point to the end of the 50-year promise of insulation from mainland China’s way of life; if the HKSAR is to make it to 2047, Hong Kongers must be vigilant to ensure their representatives, and their laws, reflect their promised way of life, to whatever degree they can.

 

Security After Empire: Law Formation in the Postcolonial Space

This Paper evaluates the formation of law, the foundational statehood, and the durability of the post-imperial legal order in two post-colonial nations: the United States and India. In these former colonies, the British Empire instituted extractive industry, steep taxes, and martial laws. The Paper examines the American and Indian exit from the British legal regime, including the topic of securitization. It then turns to an evaluation of the formation of a new state, new legal apparatus, and new domestic security measures in the United States and the Republic of India. The topic lies at the intersection of the politics of colonialism and emancipation, the international law of war, and foundational statehood. This Paper thus concerns itself with the foundational legal and pre-legal ethics of statehood, government, and citizenship.

 

South Korea’s National Security Act: Colonial Residues 

South Korea’s harsh National Security Law, enacted in 1958 against “anti-state actors” to criminalize the influence of North Korean sympathizers, has stood the test of time despite long-standing accusations of abuse by the government and debate about its constitutionality. This Paper analyzes the social factors that led to the law’s formation and preservation, pointing to South Korea’s history of extended occupation, its division during the Korean War, and the threat from North Korea under which it lives to this day. Examining the respective structures, applications, and histories of the laws discussed can inform modern understandings of the circumstances that can give rise to laws with greater potential for abuse and the necessary balance between state security and deference to individual liberties.

 

“Protecting Russians” in the Near Abroad: Russia’s Distortion of Jus ad bellum and the Responsibility to Protect Principle in Georgia and Ukraine 

The Russian invasion of Ukraine in February 2022 not only sparked the largest-scale military conflict in Europe since the Second World War but also constituted a brazen violation of the international legal principles of sovereignty and jus ad bellum. This Paper examines the “Russian World narrative,” which functions as a reaction to decolonization in the post-Soviet space and has provided an impetus for Russia to justify its aggression toward Georgia and Ukraine using appeals to jus ad bellum and the R2P principle, concepts which themselves share problematic analogs with historical European arguments for colonialism. Thus, Russia’s motives for its aggression and distortion of international law and its legal arguments purporting to justify its actions reflect the residues of colonialism. ​​

 

Colonial Residues on Comparative Legal Systems 

Judicial Dependency: American Building, Breaking, and Re-Building of Philippine “Democracy” 

This Paper examines the integral role the United States has played in shaping the Philippine legal system. Since the colonial encounter between the Philippines and the United States during the Spanish-American War, the United States has shaped Philippine law to be dependent on American law. The relationship continued, although the Philippines had gained independence from the United States. Despite prior claims that American intentions with the Islands were to support “democracy,” the United States actively supported Philippine dictator Ferdinand Marcos during Martial Law. This tension between American public statements—supporting democracy versus supporting dictators—revealed U.S. intentions of furthering the project of empire in the Islands. The tension resurfaced as the United States subsequently became the location to adjudicate claims against the dictator Marcos. These tensions amount to “Colonial Residues”—long-lasting effects of America’s empire project in the Philippines.

 

Colonial Influences in Suriname’s Constitution-Making Process: A Cautionary Tale 

This Paper investigates the Dutch colonial influence on Suriname’s constitution-making process and examines the resulting lack of legitimacy of Suriname’s Constitution. The Dutch colonized Suriname until 1975 and continued supplying large amounts of development aid up after Suriname’s independence. Suriname’s economy became dependent on this development aid, which abruptly ended with the military coup in Suriname and the installment of dictator Dési Bouterse. The Dutch made the continuance of their aid conditional upon Suriname returning to democracy. Due to the economic turmoil Suriname was in and the devastation of the civil war, Suriname adopted a new Constitution and became a democracy. Yet, Suriname’s government lacked the public trust of its people. This Paper argues that the lack of legitimacy the Constitution enjoys today is to some extent attributable to the hijacking of the constitution-making process by the Dutch government.

 

Colonial Veins in the American Adversary Defense and French Inquisitor Advocate

This Paper explores residual colonial themes in modern-day criminal trials and the ways that law continues to be shaped by power dynamics by examining the role of legal ethics and its impact on modern legal procedures. Through a comparative analysis of the procedures in criminal trials within America and France, this Paper argues that modern-day legal systems continue to reflect and reinforce power imbalances within societies, despite the “end” of colonialism.

 

Effectuating Indigenous Rights in the Amazon: A Regional Solution 

While international law maintains esteem for the principle of state sovereignty, recent trends demonstrate an increasing recognition that state sovereignty often comes at the expense of Indigenous rights. This Paper first discusses the pervasive influence of European legal ideas—including state sovereignty—on post-independence Latin American legal systems and demonstrates the incompatibility of these ideas with Indigenous notions of land ownership in the Amazon. This Paper highlights the difficulty of effectuating international Indigenous norms in the Amazon when South American governments jealously guard their right to state sovereignty. This Paper concludes that regional institutions are best situated to guard and enforce Indigenous rights in the Amazon.

 

Colonial Residues on the Rule of Law, Migration, & Human Rights 

Precursors of Migration & Displacement: Post-Colonial Violence, Insecurity, and the Threatened Rule of Law by Illicit Non-State Actors in the Northern Triangle  

Illicit non-state actors play an increasingly influential role in present conditions of state fragility and insecurity throughout Central America, which has led to mass migration from the region. Northern Triangle governments have failed to address regional security conditions, in part, because of their recent histories of autocratic rule in addition to their colonial legacy of violence. This Paper focuses on how weak internal configurations of the state and an overall lack of state presence have created conditions vulnerable to criminal violence. It also examines the extent to which institutionalized colonial violence undermined the foundations of early Native Central American societies. 

 

Indigenous Coverage Gaps: The Lack of Protection for Indigenous Migrants 

Since the colonial period, Indigenous peoples have been subject to laws that repeatedly fail to recognize or protect them, especially in the context of international migration. This Paper gives a brief overview of international law’s interaction with Indigenous peoples. This international law is then applied to the context of Colombia’s decades-long internal conflict, which prompted mass migration of Indigenous populations within and outside of the country. Through analyzing the struggle to uphold their commitments to Indigenous migrants in Ecuador, it is clear that even countries that have taken steps to incorporate Indigenous peoples into their immigration laws still struggle to uphold their commitments to Indigenous peoples under international law and can do more to respect these communities. 

 

Colonial Residues: Conflicts Over Nationality in the Modern Era 

From the 1940s onwards, colonial exit by imperial nations was widespread. The process left challenges for both the colonizers and former colonies, like citizenship and nationality legislation. This Paper introduces the general legal principles of nationality laws applied internationally, talks about specific policies of different states and colonies, and includes a case involving the United Kingdom and Hong Kong SAR in recent years.

 

Impact of French Colonial Legacies on the Ethnic Vietnamese Stateless Population in Cambodia  

This Paper examines statelessness as a product of colonialism. From forced displacement to border creation and discrimination, European colonialism contributed to the creation of stateless populations both formally and informally. First by analyzing the international legal frameworks around statelessness, and second, through applying said frameworks to the case study of ethnic Vietnamese populations in Cambodia, this Paper argues that international frameworks surrounding statelessness must move beyond legalism to account for the impact of colonial legacies on these at-risk populations.

 

Anti-Sedition Laws: Human Rights Issues as a Result of Colonial Residues  

This Paper examines the history and prevalence of colonial anti-sedition laws, their use, and abuse today, as well as different avenues for reform that have been proposed. Ultimately, states should abolish colonial-era sedition laws through their legislatures or their courts, and for those unwilling to part with these colonial-era relics, the international community should apply a full-court press for their repeal.

 

Restitutio in Integrum | Becoming Whole Again: Colonial Residues on Rights to Reparation  

This Paper examines how reparations models for mass victimizations have historically been limited by the international property regime established in the twentieth century. This regime upheld the rights of foreign investors from wealthy, former colonizing nations to prompt, adequate, and effective remedies while neglecting the rights of formerly colonized peoples seeking reparation for colonial injustices. This Paper argues that while international law, due to its colonial legacy, protects asset-holders over victims of human rights violations, there is hope for effective international property seizures to result in true reparation. Tracing the roots of the law of compensation for internationally wrongful acts, this Paper considers international efforts to seek compensation for slavery, aggression, and atrocity crimes.