This is an excerpt from The Praeter-Colonial Mind: An Intellectual Journey Through the Back Alleys of Empire by Francisco Lobo. Download the book free of charge from E-International Relations.
On the 80th anniversary of the D-Day landings on the Normandy coast, US President Joe Biden reminded his European allies gathered in Omaha Beach the reasons why his and their forebears undertook this gallant feat of arms eight decades prior: ‘To surrender to bullies, to bow down to dictators is simply unthinkable. If we were to do that, it means we’d be forgetting what happened here on these hallowed beaches’. What happened there exactly? A lot of American soldiers, as well as fighters from other nations including the UK, Canada, and France, stormed the beaches of Normandy in order to breach the impregnable ‘Fortress Europa’ lying behind Hitler’s Atlantic wall. They succeeded at an enormous human cost, but ‘Operation Overlord’ would go down in history as one of the largest, most successful, military actions on record. Furthermore, D-Day brought about something in addition to the beginning of the end of World War II. Something else happened in those ‘hallowed beaches’ that would define our lives to this day. It was the tangible consolidation of the normative commitment that the Allies had vowed to uphold a few years before with the Atlantic Charter of 1941.
In characteristically praeter-colonial fashion as they had to accommodate the colonial and the post-colonial in the same declaration of principles, the Allies committed to political freedom, self-determination, free trade and freedom of navigation, and a lasting peace made possible first by disarmament and, more importantly, by ‘a wider and permanent system of general security’ (NATO 2018, para. 15). Such a system would come to be known as the United Nations, founded a little over a year after D-Day and one of the most salient legacies of World War II.
Almost a decade later, in 1954, an acclaimed writer and winner of the Nobel Prize in literature, William Golding, would publish his famous novel Lord of the Flies (Golding 2023). His notoriously realistic portrayal of human nature as a deposit of savagery and cruelty buried under a thin veneer of civilization waiting to come out at the first opportunity has become shorthand for chaos and pessimism about the prospects of peace among people (Bregman 2021). Like Sawyer, the folksy redneck from the TV series Lost, remarked ominously as he waved a knife at another man: ‘Folks down on the beach might have been doctors and accountants a month ago, but it’s Lord of the Flies time now’.
What people usually forget about Golding’s story is that the kids who descended into anarchy did manage to lay out some rules while living on the island, at least for a while. It all began with the discovery of a seashell, or conch, that they blew to call everyone for an assembly where important matters would be discussed. Beyond its primary musical attributes, the conch shortly after started to be used as a symbol of authority to signify that whoever held it had the right to speak at the gathering, a simple convention, but a very human one at that. In the hallowed beaches of Golding’s fictional island, just like in Normandy, a human society found meaning and purpose where beasts would only see water, blood and sand. That they would later descend into that beastly level is a cautionary tale of what can happen to us if we do not uphold the sanctity of our conventions and institutions. For this, the construction of defenses to fend off the drivers of war is key, as stated in the UNESCO constitution referred to before (‘since wars begin in the minds of men, it is in the minds of men that the defences of peace must be constructed’). In this chapter I will focus on the edifice of defenses erected in the minds of men and women, and that have come to be known as the ‘rules-based international order’. In a post-colonial world born out of the death throes of colonialism after World War II, the praeter-colonial mind seeks to make sense of these rules and institutions that stand both as a legacy of colonialism and at the same time a vehicle to overcome it.
What Have the Romans Ever Done for Us?
For as long as there have been laws – that is, ever since people decided that a seashell or a tablet of stone or a piece of paper would mean something more than its purely physical attributes – there have been people who understand them, people who know how to work them. In other words, for as long as there have been laws, there have been lawyers. Lawyers like to talk about the law, as it is their trade. But what lawyers really love to do is talk about lawyers.
Send Lawyers, Guns and Money, a song by Warren Zevon, is about a man who gets in trouble overseas and asks his family to send ‘lawyers, guns and money’, in that specific order. Maybe this is for the sake of the rhyme. But maybe it is because people want to give laws and institutions a chance to work the way they are intended before resorting to more coercive methods.
And not just people; even countries, when they include law among the so- called ‘instruments of national power’ (Weber 2019) – alongside military means, economic and financial pressure, and the like – are signaling that they also want to give law a chance. However, this begs the question: why put so much trust in the law in the first place? What has the law ever done for us?
It might help to recall that many foundational concepts and principles of modern law, both domestic and international, come from the Romans. To which the post-colonial attitude, unilluminated by the faculties of the praeter- colonial mind, may raise the question: what did the Romans ever do for us? The legendary scene from Monty Python’s Life of Brian perfectly answers this question when the leader of a Jewish rebel group during the times of Jesus asks: ‘All right, but apart from the sanitation, the medicine, education, wine, public order, irrigation, roads, a freshwater system, and public health, what have the Romans ever done for us?’ A tribute to this classic of British comedy was released in 2016, when Patrick Stewart led a similar scene taking place at a fictional British government cabinet meeting after Theresa May suggested that the UK should withdraw from the European Convention on Human Rights:
Okay. Okay. But, apart from the right to a fair trial, the right to privacy, of freedom of religion, freedom of expression, freedom from discrimination, freedom from slavery, and freedom from torture. And degrading treatment. And protecting victims of domestic violence. But apart from these, what has the European Convention on Human Rights ever done for us? (Susman et al 2016).
These hilarious thought experiments remind us of the importance of legal institutions by highlighting all the things we would be deprived of if they were to disappear – if they were indeed lying ‘in ruins’ (Posner 2025) all around us, like some skeptics are quick to remark. The same goes for those who understand and apply them, namely lawyers. It is very fashionable to quote the famous line ‘The first thing we do, let’s kill all the lawyers’ from Shakespeare’s Henry VI. The line is spoken by one ‘Dick the Butcher’, a henchman of the rebel Jack Cade, who wants to impose anarchy in the land and dreams of a lawless society where there is no money and no rules, just abundance, pleasure and obedience to him as king – something that sounds an awful lot like oligarchy. What Shakespeare tried to tell us, then, is that lawyers are an obstacle that a band of gangsters who aim to reshape society to their own advantage need to overcome (Stouffer 2023). It seems that lawyers, and the law, are a crucial line of defense against bullies, whether fictional or real, foreign or domestic, and that many of the defenses of peace that must be constructed in the minds of people are ultimately articulated in the parlance of lawyers, a.k.a. the ‘rules-based international order’.
Sandcastles
The concept of the ‘rules-based international order’ has become the main rallying cry in the fight of Ukrainians against Russian aggression (Lobo 2023). It is also shorthand in the West for a set of values and a certain way of life that is worth upholding and defending against adversaries and malign actors, whether states or non-state groups – just as the ‘Free World’ was once such a Camelot of a place for the same Western nations during the Cold War. But what is the rules-based order exactly?
Some historians argue that there is not much substance to the phrase, which is admittedly more of a buzzword than an actual concept. Both Niall Ferguson and Graham Allison claim that the rules-based international order, otherwise known as the ‘liberal international order’, is nothing but a myth. Indeed, Ferguson argues that the state of affairs that we have in the world today ‘is neither liberal, nor international, nor very orderly’ (Ferguson 2018, para. 1). Allison, who believes peace comes as a result of a balance of power rather than shared values and ideas, calls the notion of a liberal international rules-based order ‘conceptual Jell-O’ (Allison 2018, 25) on account of its notorious ambiguity. Likewise, others have compared the efforts to pin down the elusive construct with the image of ‘wrestling with fog’ (Beinart 2021, para. 6).
Yet isn’t that the case with most of the concepts we hold dear, with many of our most cherished ‘myths’ – human beings, after all, being hardwired for the creation of such devices (Harari 2014, 29–51)? Can we all agree on one single definition of ‘justice’ or ‘democracy’? Do we all know what the ‘rule of law’ requires and all the features it is supposed to possess to exist? Do we know what we are talking about when we use words like ‘dignity’, ‘freedom’ or ‘equality’? All of these terms have been characterized at some point as what philosophers call ‘essentially contested concepts’ (Gallie 1956; Waldron 2021; Rodriguez 2015), namely concepts about which there are many competing conceptions and, what is perhaps more important, that emerge stronger after said competing conceptions interact with one another, such that we may gain a better understanding of what they mean to all stakeholders.
As Jeremy Waldron has pointed out when thinking about the rule of law as an essentially contested concept:
contestation between these rival conceptions works to enrich rather than impoverish our understanding of the heritage that has been associated over the centuries with legal and political uses of the rule of law. We are in a better position to deploy the rule of law as a political ideal than we would have been had it come to us with a single uncontested definition (Waldron 2021, 121).
The same could be said of the rules-based international order. As long as we keep thinking about it, arguing about what it means, upholding it and even hypocritically invoking it (as we shall see below), then the concept will always emerge stronger and the values and principles it encloses will be all the better served for it.
Now, the contestability that lies at the heart of the rules-based international order and the rule of law is not accidental. These are contested or debatable notions because they are built on a quintessentially plastic or malleable concept: the law itself. Indeed, the law has been characterized by legal philosophers as a set of rules intentionally phrased with an ‘open texture’ (Hart 2012, 123), that is, a built-in ambiguity and openness that allow it to survive changes in society and history. Thus, words like ‘vehicle’, ‘reasonable’ or ‘aggression’ have a built-in ambiguity that allows legal rules to be resilient in an ever-changing world. Further, the law is malleable not only because of the words it uses, but of what it can do with them, shaping reality and changing the institutional status of facts and people alike. Thus, the so-called ‘legal imagination’ (Koskenniemi 2021, 4) can conceive of any number of new things and entities that, at the time they are first inserted, might seem outlandish – for instance, the sovereign nation-state, a legal-political unit that for the most part of human history has not existed, yet we could not think of our current world (and all its problems) without it.
It is this same plasticity of the law that allows for a number of normative solutions and designs beyond what we might consider the only answer out of habit, for example, the concept of the state. Many of the problems in today’s world are addressed with this simple, one-size-fits-all formula of statehood. If history teaches us anything is that states come and go, but peoples and territories remain. That is not to say that some current struggles to reaffirm statehood are not worth having or supporting. Ukraine’s second war of independence against Russian imperialist aggression is one of the best examples of a legitimate fight to reassert the traditional formula of statehood that is universally accepted in our day. Increasing support for the State of Palestine in the international community is yet another instantiation of the same principle.
Yet, self-determination and statehood do not always overlap. Sometimes, when there is no previous state to talk about or when history itself is ambivalent as to a place’s status (again, unlike the case of Ukraine, which is a sovereign nation-state and a full member of the United Nations), the law has come up with creative solutions that are to be found outside of the state- centric box. Some cases in point are the Free City of Danzig, an independent political unit created between Germany and Poland during the inter-war period; Quebec as a province of Canada where, according to the Supreme Court of that country (Supreme Court of Canada 1998), self-determination of the French speakers is compatible with the overall integrity of the Canadian body politic; and a quaint, but quite telling, case of shared sovereignty between France and Spain over a tiny island at the border of both countries, ‘Isla de los Faisanes’ in Spanish or ‘Île des Faisans’ in French (‘Pheasant Island’ in English), its administration alternating between the two countries every six months.
These examples show us that, beyond the binary categories of the post- colonialist philosophy whereby statehood and sovereignty are the be-all and end-all of the international system, the praeter-colonial mind, armed with the tools and potential of an essentially malleable phenomenon like the law, can make sense of the past and the present in more than one way – so that the future may not become hostage to some of the sandcastles we have built for ourselves on beaches both hallowed and profane.
Toward a Praeter-Colonial International Law
Lawyers are key to understanding, operating and reforming the law. So, the kind of lawyer who gets to work the levers of international law matters, as they will have a direct impact on the way the field is understood and practiced. The sad reality is, as one international legal scholar from Kyrgyzstan has put it, that the field is ‘mostly Western, white, and male’ (Emtseva 2022). Further, the way international law is taught in different parts of the world also has a Western bias that undermines its truly international vocation and perpetuates structures of epistemological and political domination (Roberts 2017), namely colonial legacies that do not always align with freedom and self-determination. What to do, then? Should we, paraphrasing Shakespeare, ‘kill all the Western lawyers’ so that we can inject more diversity into international law? Besides being criminal, that solution sounds drastic and unfair, not to mention as impractical as the decolonization of the curriculum, discussed in a previous chapter, if that means getting rid of the structures and vocabularies that make possible the very idea of a law (or a science) that transcends borders.
International law is a project built by both Western and non-Western lawyers alike, and it is all the richer for it. As the same scholar from Kyrgyzstan concludes ‘Hearing the voices of lawyers coming from different parts of the world is vital for international law. In the end, it is international’ (Emtseva 2022, 757). This does not mean that international law as it currently stands could not benefit from more inputs from outside the West. This is precisely what the movement known as ‘Third World Approaches to International Law’ or ‘TWAIL’ has been advocating for the past decades, denouncing the dangers of neo-colonialism through international law as a tool of globalization and domination, albeit not always successfully (Modirzadeh 2023). This calls for, as B.S. Chimni argued in his renowned TWAIL manifesto published in 2006, ‘a necessary and effective response to the abstractions that do violence to difference’ (Chimni 2006, 5).
The above notwithstanding, there is still value in international law’s (admittedly limited) ability to restrain the sheer power of international actors. In fact, some contemporary TWAIL scholars argue that, accepting that a combination of ‘hope and frustration’ seems to be the perennial occupational hazard of lawyers both domestic and international. As they suggest, we should not give in to conformity or cynicism, but instead strive to reform international law in order to improve it. ‘TWAIL scholarship gestures toward the idea that what gives international law its emancipatory appeal is its promise of universality as such’ (Eslava and Pahuja 2012, 213), especially given its potential to constrain power. As Chimni himself also concedes ‘it needs to be recognized that contemporary international law also offers a protective shield, however fragile, to the less powerful States in the international system’ (Chimni 2006, 26).
One of these less powerful states showing a staunch commitment to international law is my home country of Chile, where we can find some interesting examples of these missing voices from the ‘Third World’ or the ‘Global South’ that have helped make international law truly universal with small contributions from the periphery – even amidst struggles that have shocked the entire world such as the wars in Ukraine and Gaza. On a theoretical level, the scholarship produced by two Chilean international law experts, Alejandro Álvarez and Arnulf Becker Lorca, is extremely important to understand the contributions of the Hispanic world to this field that are both predicated on colonialism and the same time transcend it. Indeed, in Álvarez’s notion of an ‘American Public Law’ (Álvarez 1922) we find a reinterpretation of the old Monroe Doctrine as a truly Pan-American enterprise that lays the foundation for a regional international law that is supportive of strong institutions guaranteeing global peace. In Becker Lorca’s work we are introduced to what he calls ‘Mestizo International Law’ (Becker Lorca 2015), a tale of how Western international law became progressively more cosmopolitan as it was slowly appropriated by non-Western legal experts in the nineteenth and twentieth centuries, resulting in a hybrid or ‘mestizo’ (‘mixed’) system characterized by a unique dialectic of rejection and belonging where the non-Western lawyer feels simultaneously at home and as a stranger.
On a more practical level, in 2018 the famous ‘Comprehensive and Progressive Agreement for Trans-Pacific Partnership’ (‘CPTPP’) was signed in Santiago, the capital of Chile. Formerly known as the ‘Trans-Pacific Partnership’ or ‘TPP’ and once championed by the US until Donald Trump decided to withdraw from this visionary endeavor, the CPTPP is the world’s largest free-trade agreement, including both Western and non-Western nations alike, namely Australia, Brunei, Canada, Chile, Malaysia, Mexico, Japan, New Zealand, Peru, Singapore, and Vietnam, while other world powers are determined to also join this initiative, including the UK and even China (the latter, ironically, was meant to be left out of the original TPP promoted by the US).
If thinkers like Benjamin Constant and Immanuel Kant are right, and peace among nations is more likely when war gives way to trade, then the CPTPP should be counted among one of the most relevant ‘defenses of peace’ that have been built in the minds of so many different peoples across the world in our day. However, the construction of these defenses is not something that simply happens in a vacuum. They need a medium and a vocabulary to be articulated and effectively applied. And the language of international law is the tool that nations have found to build these crucial defenses against discord and conflict, thus crafting the new structures that will allow former colonizers and colonized to come together and face the challenges of the future as partners.
The Virtue of Western Hypocrisy
Moussa used to work as a barber in central London. He was born in Algeria but lived for a long time in Madrid, where he learned Spanish, which he spoke with a thick North African accent. Every time I walked into his barbershop, he was pleased to see me because I was his only customer who spoke Spanish and it was good practice for him. We discussed, as you do in such places as barbershops or cabs, everything from the weather to the economy and world politics. Naturally, we discussed the war in Ukraine too, as it was always on the news, at least in the beginning of the full-scale invasion. Moussa believed that it was all Western hypocrisy, as they rolled their tanks into Iraq in 2003 with total disregard for the rules-based order they were claiming to protect in 2022 – and this was even before October 7, 2023, when the Hamas attack took place, after which the West mostly sided with Israel, something that I am sure Moussa would have brought up to reinforce his point.
As the very definition of a captive audience, with sharp objects flying around my head, I carefully listened to everything he had to say and tried to avoid too much disagreement. Moussa had a point, though. The inconsistent and selective application of the rules does suggest that the West is more hypocritical than we would like to admit. At a summit in Singapore in 2024 where countries discussed some of the main security challenges for the international community at the time, including the wars in Ukraine and Gaza, the Australian deputy Prime Minister pointed out that ‘If the rules-based order is to apply anywhere, it needs to apply everywhere’ (Tharoor 2024a, para. 11), calling for Israel to comply with the rulings of the International Court of Justice.
Nevertheless, hypocrisy is not the preserve of the West. In a joint statement issued only a few weeks before the full-scale invasion of Ukraine in 2022, Russia and China referred several times to the need to uphold international law (Kremlin 2022), even as they breach it, or plan to do so in the future. This is also despite the fact that respect for international law is an integral part of official Russian military doctrine, at least on paper (RSI 2022). The reality on the ground in Ukraine, however, has turned out to be much different, with Russia systematically and indiscriminately targeting civilians and non-military targets on a daily basis.
What is the praeter-colonial mind to do with all this? Should it give in to cynicism and whataboutism? Some years ago, I wrote an op-ed on the US Senate’s report on torture in the context of the war on terror (Lobo 2015). There I pointed out that, although the US had been incredibly hypocritical with regards to its own principles in light of its actual behavior, there was still some value, or virtue in American hypocrisy. Indeed, La Rochefoucauld once wrote that ‘hypocrisy is the homage that vice pays to virtue’. By this he meant that hypocrisy is a deception or a façade that is predicated on the existence, and the acknowledgment, of virtue. Cynicism, on the contrary, is not a facsimile of virtue, but the negation of values altogether. If there are to be powerful nations in the world, we are all better off if they are hypocritical rather than cynical, as with the former you can at least call them out, negotiate, and even leave room for redemption.
The US, with its strong democratic institutions such as Congress and the Supreme Court, is a case in point – although they are admittedly slowly eroding, laying bare the bones of hard power that recipients of American foreign policy have always been acquainted with (Hathaway 2024). Europe may add even more avenues for redress and satisfaction, for example, with the European Court of Human Rights and the EU’s Court of Justice. As Fareed Zakaria suggests, the US could shore up its waning power in the world by working alongside European and other allies to uphold the rules-based international order and the values it is based on (Zakaria 2024, 306). Or as Matias Spektor remarks:
As frustrating as it is to countries in the global South, Western hypocrisy has an upside: it gives developing countries a lever they can pull to effect change. Because the United States and its European allies appeal to moral principles to justify many of their decisions, third parties can publicly criticize them and demand reparation when those principles are inconsistently applied. Developing countries have no such leverage over China and Russia since neither couches its foreign policy preferences in terms of universal moral values (Spektor 2023, para. 15).
In an imperfect world – ‘perfect’ is not on the menu, alas it never has been – the rule of the hypocrites who can be shamed will always be preferable to the rule of the irredeemably shameless.
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