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CAPITALISM AS CIVILISATION

Methodologically and theoretically innovative, this monograph draws from Marxism and deconstruction bringing together the textual and the material in our understanding of international law. Approaching ‘civilisation’ as an argumentative pattern related to the distribution of rights and duties amongst different communities, Ntina Tzouvala illustrates both its contradictory nature and its pro-capitalist bias. ‘Civilisation’ is shown to oscillate between two poles. On the one hand, a pervasive ‘logic of improvement’ anchors legal equality to demands that non-Western polities undertake extensive domestic reforms and embrace capitalist modernity. On the other, an insistent ‘logic of biology’ constantly postpones such a prospect based on ideas of immutable difference. By detailing the tension and synergies between these two logics, Tzouvala argues that international law incorporates and attempts to mediate the contradictions of capitalism as a global system of production and exchange that both homogenises and stratifies societies, populations and space.   is a Senior Lecturer at the Australian National University College of Law. Her research focuses on the political economy, the history, and the theory of international law.

CAMBRIDGE STUDIES IN INTERNATIONAL AND COMPARATIVE LAW:

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Established in 1946, this series produces high quality, reflective and innovative scholarship in the field of public international law. It publishes works on international law that are of a theoretical, historical, crossdisciplinary or doctrinal nature. The series also welcomes books providing insights from private international law, comparative law and transnational studies which inform international legal thought and practice more generally. The series seeks to publish views from diverse legal traditions and perspectives, and of any geographical origin. In this respect it invites studies offering regional perspectives on core problématiques of international law, and in the same vein, it appreciates contrasts and debates between diverging approaches. Accordingly, books offering new or less orthodox perspectives are very much welcome. Works of a generalist character are greatly valued and the series is also open to studies on specific areas, institutions or problems. Translations of the most outstanding works published in other languages are also considered. After seventy years, Cambridge Studies in International and Comparative Law sets the standard for international legal scholarship and will continue to define the discipline as it evolves in the years to come. Series Editors Larissa van den Herik Professor of Public International Law, Grotius Centre for International Legal Studies, Leiden University Jean d’Aspremont Professor of International Law, University of Manchester and Sciences Po Law School A list of books in the series can be found at the end of this volume.

CAPITALISM AS CIVILISATION A History of International Law

NTINA TZOUVALA Australian National University College of Law

University Printing House, Cambridge CB2 8BS, United Kingdom One Liberty Plaza, 20th Floor, New York, NY 10006, USA 477 Williamstown Road, Port Melbourne, VIC 3207, Australia 314–321, 3rd Floor, Plot 3, Splendor Forum, Jasola District Centre, New Delhi – 110025, India 79 Anson Road, #06–04/06, Singapore 079906 Cambridge University Press is part of the University of Cambridge. It furthers the University’s mission by disseminating knowledge in the pursuit of education, learning, and research at the highest international levels of excellence. www.cambridge.org Information on this title: www.cambridge.org/9781108497183 DOI: 10.1017/9781108684415 © Ntina Tzouvala 2020 This publication is in copyright. Subject to statutory exception and to the provisions of relevant collective licensing agreements, no reproduction of any part may take place without the written permission of Cambridge University Press. First published 2020 A catalogue record for this publication is available from the British Library. Library of Congress Cataloging-in-Publication Data Names: Tzouvala, Ntina, author. Title: Capitalism as civilisation : a history of international law / Ntina Tzouvala, University of Melbourne. Description: Cambridge, United Kingdom ; New York, NY, USA : Cambridge University Press, 2020. | Series: Cambridge studies in international and comparative law | Based on author’s thesis (doctoral - Durham University, 2016) issued under title: Letters of blood and fire : a socio-economic history of international law. | Includes bibliographical references and index. Identifiers: LCCN 2020012559 (print) | LCCN 2020012560 (ebook) | ISBN 9781108497183 (hardback) | ISBN 9781108739559 (paperback) | ISBN 9781108684415 (epub) Subjects: LCSH: International law–Moral and ethical aspects. | International law–Social aspects. Classification: LCC KZ1256 .T96 2020 (print) | LCC KZ1256 (ebook) | DDC 341.09–dc23 LC record available at https://lccn.loc.gov/2020012559 LC ebook record available at https://lccn.loc.gov/2020012560 ISBN 978-1-108-49718-3 Hardback Cambridge University Press has no responsibility for the persistence or accuracy of URLs for external or third-party internet websites referred to in this publication, and does not guarantee that any content on such websites is, or will remain, accurate or appropriate.

CONTENTS

Acknowledgements

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1

The Standard of Civilisation in International Law: Politics, Theory, Method 1

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The Standard of Civilisation in the Nineteenth Century: Between the ‘Logic of Improvement’ and the ‘Logic of Biology’ 44

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The Institutionalisation of Civilisation in the Interwar Period 88

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Arguing with Borrowed Concepts: ‘The Sacred Trust of Civilisation’ in the South West Africa Saga 129

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From Iraq to Syria: Legal Arguments for the Civilising Missions of the Twenty-First Century 167

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Thinking through Contradictions on a Warming Planet 212 Bibliography Index 247

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A C K N O W L ED G E ME NTS

At an age when all our interactions ought to be subject to measurement, quantification and evaluation, many colleagues, friends and mentors took the time to think with and (productively) against me. This project began as my doctoral dissertation, which I undertook at Durham Law School between 2012 and 2016. There, I was lucky enough to be supervised by Gleider I. Hernández, whose patience, intelligence and good humour helped me to continue when everything seemed a bit too much. Aoife O’Donoghue not only helped me with this arduous process but she has since read and commented on parts of this monograph with sharpness and warmth that attest to her feminist ethos. Alice Panepinto, Rumy Grozdanova-Van Ark, Alan Greene, Andrés Delgado Casteleiro and Tom Sparks were the best writing, thinking and beverage-drinking companions I could have wished for. Cesare Aloisi and Massimiliano Rota fed me and helped me solve social issues. They still do, albeit from a distance. In late 2016, I moved to Australia to take up a position with the Laureate Program in International Law at Melbourne Law School. I am grateful to Anne Orford for her intellectual generosity, her ability to foster a truly welcoming but challenging environment and her good advice on matters of international law and beyond. My fellow team members, Marnie Lloydd, Fabia Veçoso, Sebastian Machado, Amber Withers, Wendy Chen and Jack Stanovsek, listened to my rants gracefully and steered me back in the right direction. Anna Saunders has always been willing to ask the hard questions and share a cup of tea. Luís Bogliolo has been a true comrade, with all the gravity this word carries. Thanking Kathryn Greenman would require its own section (if not book), so I am going to leave it here. I am also deeply indebted to my Melbourne Law School students. Their lively interest, original thinking and wit kept me on my toes and gave me hope for the future when things seemed hopeless. Melbourne Law School supported my research in multiple ways, including by granting me Research Support Funds and a vi

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Research Excellence Grant. I deeply appreciate this institutional commitment to helping junior researchers such as myself. A number of friends, comrades and colleagues read and commented on various parts of this manuscript and/or discussed it with me, even when I had become rather annoying about it. These include Kathryn Greenman, Anna Saunders, Luís Bogliolo, Robert Knox, Michael Fakhri, Ali Hammoudi, Mai Taha, Douglas Guilfoyle, Julia Dehm, Jason Beckett, Sara Dehm, Rose Parfitt, Katherine Fallah, Umut Özsu and Natasa Mavronicola. Julia Dehm and Adil Hasan Khan discussed parts of this book with me, sharing their invaluable insights and (more importantly) their space and food. I am grateful for their friendship and generosity. Martti Koskenniemi and Guy Sinclair were the best PhD examiners I could have hoped for. Their insightful and detailed engagement with my work enabled me to rethink my own argument and its blind spots in what I hope was a productive way. They also generously read and commented on chapters of this current monograph. Finally, I have benefited greatly from collective spaces of thinking, reading and writing about international law. These include Melbourne Law School’s Institute of International Law and the Humanities, the Institute for Global Law and Policy of Harvard Law School, the Transnational Law Summer Institute and the editorial collective of the Third World Approaches to International Law Review.

1 The Standard of Civilisation in International Law Politics, Theory, Method The tradition of all dead generations weighs like a nightmare on the brains of the living. And just as they seem to be occupied with revolutionizing themselves and things, creating something that did not exist before, precisely in such epochs of revolutionary crisis they anxiously conjure up the spirits of the past to their service, borrowing from them names, battle slogans, and costumes in order to present this new scene in world history in time-honored disguise and borrowed language. Karl Marx (1852)1

In July 2017, a strange scene unfolded at the G20 summit in Hamburg. Responding to a question by an Ivorian journalist about the possibility of a Marshall Plan for Africa, the President of France, Emmanuel Macron, retorted, ‘The challenge of Africa, it is totally different, it is much deeper, it is civilizational today. What are the problems in Africa? Failed states, the complex democratic transitions, demographic transitions, which is one of the main challenges facing Africa.’2 Paradoxically, even though Macron understood the civilisational malaise of Africa to run deep, his prescriptions for overcoming it sounded somewhat pedestrian: regional security pacts with France, better infrastructure and public–private partnerships. What is familiar here is not only the framing of the perceived problem as one pertaining to ‘civilisation’ but also the solutions proposed. The idea that the non-European world was civilisationally inferior and that the influx of (Western) capital would remedy these shortcomings has been, I argue, constitutive of modern international law at least since its emergence as a distinct discipline during the last quarter of the nineteenth century.

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Karl Marx, The Eighteenth Brumaire of Louis Bonaparte (first published 1852, Moscow: Progress Publishers 1972) p. 10. For a brief engagement with the incident, see: Ntina Tzouvala, ‘Macron & Africa’s “Civilisational” Problem’ (Critical Legal Thinking, 14 July 2017) available at: http:// criticallegalthinking.com/2017/07/14/macron-africas-civilisational-problem/.





     

This monograph interrogates the ‘standard of civilisation’ in international law. I have come to understand ‘civilisation’ not as a unitary legal concept lending itself to conclusive definition but as a mode of international legal argumentation. This pattern of argument establishes a link between the degree of international legal personality that political communities are recognised as having and their internal governance structure, or, to be more precise, their conformity with the basic tenets of capitalist modernity. The core of my position is the following: arguments resting implicitly or explicitly on the ‘standard of civilisation’ oscillate between two seemingly contradictory positions. On the one hand, there is scepticism, if not overt hostility, regarding the possibility of equal inclusion for non-Western, predominantly non-white political communities in the realm of international law, which rests on a deepseated perception of cultural or racial inferiority. On the other hand, such inclusion is considered possible and desirable, and depends on the adoption of particular reforms by such communities that would ensure their conformity with the necessities of capitalist modernity. Therefore, the ‘standard of civilisation’ creates a conundrum between exclusion and conditional inclusion. I refer to the former pole of this oscillation as ‘the logic of biology’, a mode of argumentation that erects unsurpassable barriers against non-Western communities acquiring equal rights and obligations under international law based on some purportedly immutable difference between ‘the West and the rest’. Simultaneously, what I understand to be ‘the logic of improvement’ offers a prospect of inclusion that has, however, been firmly conditional upon capitalist transformation. Taking a step further, I suggest that this argumentative conundrum only becomes possible, plausible and even necessary in the context of imperialism as a specifically capitalist phenomenon. On the one hand, imperialism creates spheres of political domination and intensified economic exploitation, or in the most recent iteration, it structures ‘global value chains’ in order to transfer value from the periphery to the imperial centre.3 Such centre–periphery dynamics need not be static, and indeed, inter-imperialist antagonisms lead to the re-organisation of 3

For some critical perspectives on the role of international law in the global production and distribution of value, see: The IGLP Law and Global Production Working Group, ‘The Role of Law in Global Value Chains: A Research Manifesto’ (2016) 4 London Review of International Law 57–79; Donatella Alessandrini, Value Making in International Economic Law and Regulation: Alternative Possibilities (Abingdon: Routledge 2016).

     



these relationships from time to time. The rapid rise of Chinese capitalism and its expansion through initiatives like the Belt and Road offer a good example of the dynamic, evolving character of these relationships, which might be partly influenced by earlier patterns of imperial domination but are not reducible to them.4 On the other hand, the inherent tendency of the capitalist mode of production towards extended reproduction both spatially and otherwise contributes to the spread of the institutions, legalities and techniques necessary for the establishment and reproduction of the capitalist mode of production. The conundrum of the ‘standard of civilisation’ maps the contradictions of uneven and combined capitalist development and therefore these contradictions ‘do not exist as a random flux but as a unity of differences’.5 In other words, capitalism constitutes a mode of production that knows no inherent limit to its expansion, be it geographical, moral or concerning the aspects of life (human and non-human alike) that cannot be subjected to the imperatives of capitalist accumulation. Long before twentieth-century Marxists, such as V. I. Lenin, Rosa Luxemburg or Samir Amin, started thinking systematically about imperialism, Karl Marx himself was profoundly interested in capital’s tendency for limitless spatial expansion: ‘The tendency to create the world market is directly given in the concept of capital itself. Every limit appears as a barrier to be overcome.’6 Recent efforts to expand commercial activities in the deep seabed, the outer space, and previously communally held lands and the legal edifices that accompany these initiatives all constitute recent examples of capitalism’s limitless tendency towards expansion.7 Importantly, capitalism’s 4

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On the political economy of the Belt and Road Initiative and Chinese capitalism, see: Jerry Harris, ‘China’s Road from Socialism to Global Capitalism’ (2018) 39 Third World Quarterly 1711–26; Liana M. Petranek, ‘Paving a Concrete Path to Globalization with China’s Belt and Road Initiative through the Middle East’ (2019) 41 Arab Studies Quarterly 9–32. Robert Paul Resch, Althusser and the Renewal of Marxist Social Theory (Berkeley/Los Angeles/Oxford: University of California Press 1992) p. 61. Karl Marx, Grundrisse: Foundations of the Critique of Political Economy (first published 1857–1861, New York: Penguin Books in association with the New Left Review 1973) p. 408. This process of ‘land-grabbing’ has not escaped the attention of critical international lawyers. For some recent engagements, see: Surabhi Ranganathan, ‘Ocean Floor Grab: International Law and the Making of an Extractive Imaginary’ (2019) 30 European Journal of International Law 573–600; Isabel Feichtner, ‘Sharing the Riches of the Sea: The Redistributive and Fiscal Dimension of Deep Seabed Exploitation’ (2019) 30 European Journal of International Law 601–33; Umut Özsu, ‘Grabbing Land Legally: A Marxist Analysis’ (2018) 32 Leiden Journal of International Law 215–33; Ntina Tzouvala, ‘A False



     

tendency towards global expansion does not bring about the homogenisation of life-worlds, economic development or legal systems. Rather, as dependency theorists of both Marxist and non-Marxist variants have argued, what we have come to understand as ‘under-development’ is not a consequence of insufficient contact with capitalism, but of the specific, uneven way different regions of the world became incorporated into global capitalism. Furthermore, ‘under-development’ is often the outcome of violent processes of de-industrialisation and remaking of local economies for the benefit of imperial metropoles.8 The ‘standard of civilisation’, I posit, was a historically contingent response to the need to make sense of and regulate a world shaped and reshaped by these dynamics of unequal, yet global, capitalist development. It did so by bringing together disparate ideas about human history and evolution that were influential at the time of the standard’s formulation as a distinct international legal argument. These influences included, notably, a progressivist, linear outlook on human history, and an unconditional privileging of the historically specific legal and political infrastructure of European capitalism, as well as racial, gendered and sexual imaginaries of immutable difference and hierarchy. This eclecticism of references and sources persists to date. Even though ideas about human progress endure, they are today accompanied by metrics, indexes and ‘best practices’ that give contemporary iterations of ‘civilisation’ their historical distinctiveness and ground it on the hegemonic ideas, practices and disciplines of the twenty-first century. The structure of the standard might remain constant, but what precisely constitutes ‘civilisation’ relies on a wide range of evolving intellectual tools to construct and maintain its credibility; for example, the relative decline of explicitly (biological) racist justifications of inequalities of wealth and power influenced the specific ways the ‘standard of civilisation’ was articulated in international law. ‘Cultural

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Promise? Regulating Land-Grabbing and the Postcolonial State’ (2018) 32 Leiden Journal of International Law 235–53. One extreme example is the destruction of Bengal’s thriving textile manufacturing under the rule of the East India Company: ‘In 1750, India produced approximately 25 per cent of the world’s manufacturing output. By 1800 India’s share had already dropped to less than a fifth, by 1860 to less than a tenth, and by 1880 to under 3 per cent. It is therefore no stretch of the imagination to claim that Britain’s industrial ascent was to a large degree predicated on India’s forced deindustrialisation.’ Alexander Anievas and Kerem Nişancıoğlu, How the West Came to Rule: The Geopolitical Origins of Capitalism (London: Pluto Press 2015) p. 262.

     



difference’ started doing the argumentative heavy lifting, and ‘objective’ ways of differentiating amongst states based on their ranking in different indexes, their credit-worthiness, or their purported (un)willingness to deal with terrorism stood in for the explicit racialisation of whole populations and political communities. Furthermore, as the rise of feminism challenged the discipline’s open misogyny and sexism, making explicit references to female inferiority politically unsavoury, narratives of masculinity and femininity that demanded the reader to identify with the former also arose as responses to these changing circumstances.9 Overall, the surprising longevity of ‘civilisation’ is at least partly linked to its adaptability. As international lawyers attempted to understand, rationalise and bring about legal order in a world that is linked through capitalist relationships of production and exchange and constantly stratified by the same relationships, proponents of ‘civilisation’ drew from various disciplines, dominant ideologies and practices in order to produce convincing legal arguments that reflected and reproduced this uneven and combined development. This book maps both the persistence of the fundamental argumentative oscillation between ‘improvement’ and ‘biology’ internal to the ‘standard of civilisation’ and also the ever-changing sets of ideas, practices and disciplines that are called forth to make this conundrum intelligible, and often invisible. In this respect, ‘civilisation’ is a structure, one with an internal logic that appears resistant to individual lawyers’ will and even to significant disciplinary changes. However, it is a structure that only exists within history, not outside or above it. Mapping the evolution of the standard is, therefore, an important task. Structuralist accounts of law have often been criticised for their purported rigidity, their emphasis on argumentative stability and constant textual logic over change, contingency and individual agency. After all, the rise of critical legal histories that privileged indeterminacy, contingency, and textual openness was to a significant extent a reaction against structuralism of the Marxian, anti-Marxian and non-Marxian varieties alike.10 This critique should, in my opinion, be partly embraced. This

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On the centrality of such narratives in international legal scholarship during the 1990s, see: Anne Orford, ‘Muscular Humanitarianism: Reading the Narratives of the New Interventionism’ (1999) 10 European Journal of International Law 679–711. For the most eloquent account of the rise, fall and possible ‘re-rise’ of structuralist legal histories, see: Justin Desautels-Stein, ‘Structuralist Legal Histories’ (2015) 78 Law and Contemporary Problems 37–59. One of the most canonical texts of this embrace of



     

monograph argues that our understanding of both the ‘standard of civilisation’ and of the discipline of international law as a whole is advanced by thinking in terms of patterns of argumentation that persist despite historically contingent legal developments. Thinking through structures enables us to embed legal analysis into broader considerations about the synergies between our discipline and global patterns of profoundly unequal distribution of wealth, power and pleasure.11 One of the significant losses of the turn to postmodern modes of legal historiography was, indeed, the proclaimed impossibility to link the textual to the social, economic and political. If the law was wholly indeterminate, fluid and contingent – so the argument went – it was impossible to argue that it ‘did’ anything, that it somehow constituted, or even influenced relations of domination, exclusion or exploitation.12 This side-lining of structural accounts of the past and present of international law only became possible and plausible within a context of capitalist triumphalism that rendered systematic critiques of the capitalist status quo implausible, if not unthinkable.13 That said, my defence of structuralism as it has been deployed in international law so far is not unconditional.14 Rather, this book attempts to integrate historical movement and change with the deciphering of persistent argumentative structures within the discipline. Somewhat schematically, I argue that both structuralism and history have

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‘unstructured indeterminacy’ (in the words of Desautels-Stein) is: Robert W. Gordon, ‘Critical Legal Histories’ (1984) 36 Stanford Law Review 57–125. I owe this formulation to Rose Parfitt: ‘[T]his apparatus, the self-governing state, whose reach has now become virtually universal, is itself dedicated, at a fundamental level, to the widening and deepening of capitalist relations of production and exchange, and to the systematic upwards redistribution of wealth, power and pleasure which those relations imply.’ Rose Parfitt, The Process of International Legal Reproduction: Inequality, Historiography, Resistance (Cambridge: Cambridge University Press 2019) p. 8. ‘The crux of the problem, and the reason structuralist legal history fell away as critical legal history took off, was the confusing relation between law’s constitutive role in society and the apparent inability of law to constitute anything if it was really so indeterminate.’ Desautels-Stein, ‘Structuralist Legal Histories’, 54. It needs to be noted that already since the early 2010s TWAIL scholars, who did not necessarily espouse an openly Marxist project, had noticed this absence and were attempting to rethink the orientation of the movement in a way that did not exclusively focus on imperialism but also on capitalism. See: Michael Fakhri, ‘Introduction – Questioning TWAIL’s Agenda’ (2012) 14 Oregon Review of International Law 1–15. The most widely acclaimed (and misunderstood) example is: Martti Koskenniemi, From Apology to Utopia: The Structure of International Legal Argument (2nd edn, Cambridge: Cambridge University Press 2006). See also: Martti Koskenniemi, ‘What Is Critical Research in International Law? Celebrating Structuralism’ (2016) 29 Leiden Journal of International Law 727–35.

.  



not achieved their full critical potential. For example, the most prominent exponent of both in international law, Martti Koskenniemi, deployed them in two separate book projects, From Apology to Utopia and The Gentle Civilizer of Nations, whose relationship remains unclear and contested.15 For a re-integration between structural and historical accounts, we first need to confront some fundamental questions about the methodology of this book, as well as about the ways it relates to the growing literature of international legal history and historiography, and, more broadly, to critical approaches to international law.

1.1 Reading Symptomatically: Towards a Materialist Method for International Law The practice of international law entails many things, but reading is certainly a central element of it. When we teach, advocate or write memorials or journal articles, we read to ourselves and to each other. Often, when we engage with what we call ‘secondary literature’, we read other people’s readings, their efforts to create meaning, structure or confusion out of short textual fragments. It is precisely through these acts of reading and re-reading that lawyers practise the (dark) art of making meaning move across time and space, as Anne Orford has argued.16 We conduct such readings through the extensive usage of quotations (a paradigmatic case of reading aloud for our audience), footnotes, the retrieval of previously unread texts that purportedly support our case and condemn that of our opponents, and so on. International law’s constant search for authority also makes ours a discipline particularly enamoured with textual authorities: new ‘fathers’ and origins are constantly retrieved, cases and treaties quoted, and diplomatic correspondences called forth in this seemingly endless process of reading. Recall for a moment the mild sense of embarrassment that arises when

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I owe the insight about the problems arising from the separation between the two projects and approaches and the need to rectify them to Michael Fakhri. Chimni has also advanced this criticism: ‘It is worth noting that [Koskenniemi’s] historical writings came after he had advanced a structural critique of international law raising the question whether the structure and history of international law . . . can be separately explored without impoverishing the understanding of both.’ B. S. Chimni, International Law and World Order: A Critique of Contemporary Approaches (Cambridge: Cambridge University Press 2017) p. 317. Anne Orford, ‘On International Legal Method’ (2013) 1 London Review of International Law 166–97, 172.



     

lawyers read Article 38 of the Statute of the International Court of Justice concerning the sources of international law out loud.17 Students are often instructed to ‘read out’ the uncomfortable passage that refers to the general principles of law recognised by ‘civilised nations’. It seems that treating this part of the text as anything other than a legally inconsequential relic is juridical bad form. Rather, we are instructed to read as if this reference to ‘civilisation’ is simply not there. This process of reading references to ‘civilisation’ out of the sources of our discipline is not just an ad hoc technique of international law teachers. Rather, reading ‘civilisation’ out of the doctrine of sources has been the standard mode of engagement with the ‘general principles of law’ in Article 38, especially by Soviet and Third World judges, who tried to push back against the openly hierarchical aspects of the concept. Shortly after the establishment of the United Nations, the Soviet Judge Krylov read out the term without much fanfare or explanation: ‘In the present case, the Court cannot found (sic) an affirmative reply to Question I (b) either on the existing international convention or on international custom (as evidence of a general practice), or again, on any general principle of law (recognized by the nations).’18 Judges Ammoun and Weeramantry did the same, and they went to great lengths to document the imperialist origins of the designation and to argue that in the context of a formally post-colonial international law, the term could not be dignified with legal meaning.19 It seems, therefore, that it is not only the ‘crits’ who ‘misread’ the texts of international law.20 Certain misreadings, especially if related to the ‘standard of civilisation’, are widely practiced and accepted. Therefore, a theory of reading is necessary in order to both account for what I am doing in this book and for what legal practice entails more broadly. 17

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Statute of the International Court of Justice (annexed to the UN Charter) 33 USTS 993, art. 38(1)(c). Reparation for Injuries Suffered in the Service of the United Nations (Advisory Opinion) [1949] ICJ Rep 174 (dissenting opinion of Judge Krylov). Maritime Delimitation in the Area between Greenland and Jan Mayen (Denmark v. Norway) (Merits) [1993] ICJ Rep 38 (separate opinion of Judge Weeramantry); North Sea Continental Shelf (Germany v. Denmark) (Merits) [1969] ICJ Rep 3 (separate opinion of Judge Ammoun). ‘Any method of engaging with texts, whether literary, legal or political, that departs from orthodox forms of interpretation, is portrayed as illegitimate, and a dangerous waste of time and energy.’ Anne Orford, Reading Humanitarian Intervention: Human Rights and the Use of Force in International Law (Cambridge: Cambridge University Press 2003) p. 52.

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Surprisingly, even though international law is certainly a textual discipline and despite the ongoing anxieties about methodology and interdisciplinarity,21 explicit accounts of what it means to read from within and for international law remain rare. Notably, Orford’s earlier work drew from feminist and post-colonial literary theory to defend what she saw as a purposeful misreading of leading disciplinary texts on humanitarian intervention.22 Reading these texts against the disciplinary grain and the (conscious) desires of their authors, Orford eschewed the question of whether such military action was lawful or not. Rather, she focused on the narrative and pedagogical functions of texts that positioned themselves as pure doctrinal accounts. In so doing, she centred the ongoing synergies between international law and imperialism.23 Moving beyond international law, I have found Bennett Capers’ approach on how to ‘read back’ and to ‘read black’ an indispensable guide for reading legal texts against the grain.24 Capers fundamentally conceives of his reading method as oppositional, both to mainstream ways of reading law but also, I believe, to the texts themselves: ‘I am suggesting a reading that reveals sites of contestation, a reading that is oppositional.’25 This tension enables him to look for slippages, inconsistencies and paradoxes not as the products of technically deficient legal reasoning but as entrances to the deeper logic of the text. In so doing, he encourages us to read with an eye not only for what it is there but also for what it is not. The omissions and the silences of our texts define it as much as what is formally present: ‘I use the term [reading black] here to suggest a rereading that reads not only contextually, but also critically, sensitive to the stated and the unstated, the revealed and the concealed, and the meaning to be gleaned

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23

24 25

Currently, this anxiety concerns the relationship between law and history, understood both as the past and as the organised study of the past in academic environments. However, it is worth recalling that at the turn of the century it was the relationship with the field of international relations that produced very similar feelings. The constant return of this anxiety is the subject of Aristodemou’s Lacanian engagement with international law: Maria Aristodemou, ‘A Constant Craving for Fresh Brains and a Taste for Decaffeinated Neighbours’ (2014) 25 European Journal of International Law 35–58. ‘The kind of productive misreading that I hope to develop here involves breaching some of the protocols that govern international legal scholarship, in order . . . to make these texts “mean differently”’. Orford, Reading Humanitarian Intervention, p. 37. ‘The first part explores what it means to read and write legal theory after colonialism, and the demands this makes of international lawyers.’ Ibid., p. 39. I. Bennett Capers, ‘Reading Back, Reading Black’ (2006) 35 Hofstra Law Review 9–22. Ibid., 9.



     

from both.’26 Once we adopt this approach, cases that are nominally entirely unrelated to race and racism reveal that they do indeed play a role in the production and reproduction of racial hierarchies. Their reasoning, which is seemingly confusing and inconsistent, acquires meaning and coherence if we accept the centrality of racial imaginaries and assumptions. Capers continues: To illustrate this reading practice, I have chosen two cases that on their face do not appear to be engaged in ‘race work’ at all. In selecting such cases, I hope to excavate the racialized thinking that informs even those opinions most removed from racial concerns. As I shall argue, each of these cases participates in forming racial identity and promulgating a type of racial hierarchy. And because these are judicial opinions, because they speak with the force of law, each of these opinions functions as an authorizing discourse on race.27

Importantly, Capers notes that there is no reason to perform ‘black’ readings exclusively instead of queer, class-based, or feminist ones.28 He is equally quick to clarify that his method has nothing to do with simply diversifying the judiciary since one’s characteristics do not guarantee their willingness to read between the lines.29 It is precisely because the accounts of Orford and Capers are so compelling that I want to push them to their limit in two ways. First, I want to defend a productive rather than revelatory understanding of reading of/for international law. This proposition departs from Capers’ text, which is centred around metaphors of excavation and revelation. Capers occasionally appears to argue that the centrality of race and racism is already ‘there’ and ‘reading black’ enables us to see what was already present in the text but mainstream readings ignored for one reason or another. Relatedly, I suggest that every single reading of international law, whether critical or mainstream, theoretical or doctrinal, is determined by a specific problematic that renders some aspects of the text hyper-visible and others invisible, or more accurately, unthinkable. Drawn from the epistemological theories of Gaston Bachelard, the concept of problematic has entered the idiom of critical legal theory mostly through the quest to problematise the discipline’s givens. The concept originally attempted to capture what distinguishes scientific 26 27 28 29

Ibid., 12. Ibid., 13. Ibid., 12. Ibid.

.  



knowledge from other practices which also produce truth-claims about the world.30 Bachelard’s idea was that the rupture that distinguishes sciences from other such practices takes place when we transcend everyday common-sense observations about the world, which he considered to be fundamentally antithetical to science. In this context, a problematic is not just a theory, but what is required for theories to emerge in the first place: ‘it is the structure of the theory; that is, the way the different concepts are diverted from their isolated and immediate ordinary semantic sense and redefined in relation to one another.’31 Thinking about law in these terms is useful in two ways. First, it enables us to question and leave behind the common sense of the discipline. Second, it unseats the idea of the texts of international law being ‘out there’ and the act of doctrinal interpretation or of historical engagement consisting in rediscovering an already-existing meaning. To return to Orford’s words: if she productively misreads the texts of international law,32 so does everyone else. Those familiar with literary theory and/or Marxism might have already recognised my proposed method as that of ‘symptomatic reading’, a mode of textual engagement drawn from the work of French Marxist philosopher Louis Althusser. Althusser’s reception in international legal scholarship remains limited. Notably, the most productive usages of his theories thus far have focused on his famous essay on ideology,33 and the function of legal texts in interpellating lawyers and political communities alike into thinking themselves in particular ways, complying with certain ideal types, and forgetting that this process of interpellation ever took place.34 This encounter between international law and Althusser’s theory of ideology has proven productive since his writings on ideology militate against the mechanistic base–superstructure 30

31

32 33

34

See generally: Gaston Bachelard, La Formation de l’Esprit Scientifique (first published 1938, Paris: Vrin 1993). Patrice Maniglier, ‘Bachelard and the Concept of the Problematic’ (2012) 173 Radical Philosophy 21–3, 23. See note 21. Louis Althusser, ‘Ideology and Ideological State Apparatuses (Notes towards an Investigation)’ in Lenin and Philosophy and Other Essays (translated by Ben Brewster, New York: Monthly Review Press 2001) 85–126. On the texts of international law as processes of interpellation to the model of masculine, muscular humanitarian, see: Orford, ‘Muscular Humanitarianism’. Parfitt has recently proposed a theory of international law as a constant process of interpellating political communities to the model of the modern, capitalist state: Parfitt, The Process of International Legal Reproduction.



     

divide, which is occasionally found in Marxist legal theory, and the confinement of law to the latter category. Therefore, the Althusserian theory of ideology enables international lawyers to think through the centrality of law as one of the primary mechanisms that ensure the reproduction of capitalist relations of production. This approach affords law relative autonomy from economic relations and fits better with the lawyerly intuition that law does much more than simply ‘reflecting’ some already-existing economic base. Here, however, I will draw from another major text by Althusser, Reading Capital, which apart from being his magnum opus also has the important advantage of being a text about how to relate to other texts. To read out loud: Our question therefore demands more than a mere literal reading, even an attentive one: it demands a truly critical reading, one which applies to Marx’s text precisely the principles of the Marxist philosophy which is, however, what we are looking for in Capital. This critical reading seems to constitute a circle, since we appear to be expecting to obtain Marxist philosophy from its own application . . . This apparent circle should not surprise us: all ‘production’ of knowledge implies it in its process.35

In Reading Capital, Althusser locates the distinctiveness of Marx’s late work, notably Capital, in Marx’s productive process of reading texts of the classical political economy out loud to his readers.36 The argument goes as follows: in the process of reading critically the texts of classical political economy, Marx shifted – without realising it himself – the terrain of inquiry, thereby rendering visible the process of labour exploitation. Importantly, the earlier invisibility of this process was not the outcome of malice or incompetence but the result of the questions, or in other words, the problematic, that classical political economy was posing. It is irrelevant here if Althusser’s understanding of Marx’s

35

36

Louis Althusser, ‘Introduction’ in Louis Althusser and Etienne Balibar (eds.), Reading Capital (translated by Ben Brewster, London/New York: Verso 1979) 73–8, p. 76 (emphasis as in the original). ‘When we read Marx, we immediately find a reader who reads to us, and out loud. The fact that Marx was a prodigious reader is much less important for us than the fact that Marx felt the need to fill out his text by reading out loud, not only for the pleasure of quotation, or through scrupulousness in his references (his accuracy in this was fanatical, as his opponents learnt to their cost), not only because of the intellectual honesty which made him always and generously recognize his debts (alas, he knew what a debt was), but for reasons deeply rooted in the theoretical conditions of his work of discovery.’ Ibid., p. 18.

.  



intellectual breakthrough is accurate or not. What matters is that in the process the French philosopher articulated a theory of reading as a productive practice that does not concentrate on the surface of the text recovering an already-existing meaning. Rather it looks for presences as well as for absences and, crucially, does not treat these absences as accidental omissions or as indications of incompetence, but rather as necessary consequences of the problematic, the structure of a theory that animated a text. As a mode of engaging with texts, this has distinctive advantages for those interested in engaging critically with international law. It forces us to acknowledge there is no ‘innocent’ reading, which simply assembles and reproduces the transparent, immediately available meaning of the text. Therefore, as Althusser claims, ‘we must say what reading we are guilty of’.37 In other words, we need to acknowledge the misreadings we engage in and recognise that every reading of the materials of international law is an act of production. Drawing from these insights, I attempt a reading of international legal materials that does not purport to recover a pre-existing meaning from the surface of the text. This is not a case of traditional legal interpretation with the subsequent addition of historical materialism. Rather, my own ‘symptomatic reading’ aims to recover not only what is said, but also what remains unsaid, not because of an oversight but as a logical consequence of the problematic of the text. In the process, a certain ‘doubling’ of the text occurs: alongside the text that has been transmitted to us is also a second, unarticulated text, which exists in parallel to the first and carries all the silences and omissions that could not possibly have been articulated in the existing text, because otherwise, it would have become untenably contradictory. Importantly, these silences and dark spots of our texts do not simply exist somewhere, ready to be discovered. Rather, the silences are the product of the questions we choose to ask the text, the problematic that informs our own reading. A symptomatic reading, therefore, is delimitated both by its own problematic and by the ‘objective existence of the text as a social-historical production’.38 It is through this coupling of epistemological relativism and ontological realism – the assumption that the texts might exist objectively ‘out there’ but we only have access to them through the structure of questions we choose to ask – that I am enabled to acknowledge the nontransparency of the text and the co-constitution of the problematic and 37 38

Ibid., p. 30. Resch, Althusser and the Renewal, p. 174.



     

the text, and at the same time to make claims about the validity both of my problematic and of the reading I will shortly put in motion. However, this partial distancing from relativism does not mean that I do not have to recognise the reading put forward for what it is: an always tentative, unfinished, partial, transitionary engagement with a series of texts that is itself liable to be subject to further readings and outside the control of any one single subject, including, notably, of my own. My reading of international law’s texts is structured around a juridical problematic. I will, therefore, read Westlake, the Permanent Mandates Commission, and the International Court of Justice as a lawyer, and not as a psychoanalyst, an aesthetician or a political theorist. This might seem obvious, but it has important ramifications. The main one is that I had to abandon the idea of ‘civilisation’ as an isolated concept that renders itself to precise definition and historical excavation independently of its relationship with other parts of international law’s grammar and syntax.39 Rather, I had to read with the assumption that lawyers do not generally disagree about the meaning of words, but rather about their legal consequences. Therefore, I am treating ‘civilisation’ as the crystallisation of a particular argumentative pattern. Designations such as ‘civilised’, ‘uncivilised’ or ‘semi-civilised’ did not have a concrete meaning as such, but only as shorthands for what could be done to other political communities lawfully and what could not. ‘Uncivilised’, therefore, was not a distinct legal identity with clear boundaries: it was rather a bundle of juridical relationships imposed on some by others.40 In this respect, Ι find China Miéville’s materialist engagement with ‘civilisation’ instructive, but incomplete. Miéville’s argument goes as follows: the ‘standard of civilisation’ did not emerge as a conceptual device first, and was subsequently rolled out and applied to relationships between political communities.41 Rather, his argument goes, the standard 39

40

41

For the opposite position through an exposition and application of Koselleckian conceptual history, see: Martin Clark, ‘A Conceptual History of Recognition in British International Legal Thought’ (2017) 87 British Yearbook of International Law 18–97; Martin Clark, ‘Ambivalence, Anxieties/Adaptations, Advances: Conceptual History and International Law’ (2018) 31 Leiden Journal of International Law 747–71. I am here relying on Hohfeld’s famous assertion that all legal concepts, including seemingly unitary and indivisible ones, such as the fee simple, are in reality bundles, aggregates of rights (or claims), privileges, powers, and immunities and their juridical opposites: Wesley Newcomb Hohfeld, ‘Some Fundamental Legal Conceptions as Applied in Judicial Reasoning’ (1913–1914) 23 Yale Law Journal 16–59. China Miéville, Between Equal Rights: A Marxist Theory of International Law (London: Pluto Press 2006) p. 243.

.  



was developed to rationalise a very specific practice: the concluding of ‘unequal treaties’ between Western powers and polities such as China, Japan, or the Ottoman Empire, which according to Miéville were clearly states and therefore, their legal subjugation required special justification.42 The ‘standard of civilisation’ emerged precisely as an attempt to justify this otherwise legally uncomfortable practice or, as Orford has put it, summarising a similar process in a different context, civilisation was the transformation of ‘deeds into words’.43 Miéville’s approach is invaluable, not least because it situates ‘civilisation’ within a broader nexus of juridical relationships and declines to treat it as a monistic carrier of meaning. However, his demystification of the concept of ‘civilisation’ is followed by the mystification of other concepts, notably sovereignty and statehood. Miéville pushes against the post-colonial interpretation of ‘civilisation’ as a way of ‘Othering’ non-Western peoples, stating instead that it was the ‘result of the paradoxes of actually-existing sovereignty’.44 In this way Miéville urges us to treat ‘civilisation’ as a condenser of a rich set of international legal practices, only to fall back to assuming that ‘sovereignty’ or even the ‘state’ has a clear, unitary meaning in the context of international law, which is metonymically captured by ‘civilisation’. My approach relies on the idea that even when lawyers go to great lengths to define particular terms, they invariably do so with the purpose of attaching specific legal outcomes to them, or in other words, lawyers are generally in the business of crafting terms to fit legal arguments. In this instance, late-nineteenth-century international lawyers came up with a particular mode of argumentation about the distribution of rights, privileges, duties, liabilities and so on between political communities. Often, they used the moniker ‘civilisation’ to crudely summarise this pattern, but oftentimes they did not. Therefore, the decline of explicit usages of the term was not decisive for the survival of this mode of argumentation, even though it did signal a battle over the place of this argumentative pattern within international law as a whole. This leads me to the core of my argument about the structure of this particular mode of international legal argumentation that is known as the ‘standard of civilisation’. My account exploits the disjuncture between the questions 42 43

44

Ibid., p. 247. Anne Orford, International Authority and the Responsibility to Protect (Cambridge: Cambridge University Press 2011) p. 2. Miéville, Between Equal Rights, p. 248.



     

late-nineteenth-century international lawyers asked themselves and tried to respond to by invoking ‘civilisation’ and my questions that revolve around the relationship between international law and imperialism. The oscillation between racialised or culturalist exclusion and conditional inclusion characteristic of the standard of civilisation was and continues to be made possible, plausible and even necessary in the final analysis by the modalities of imperialism as a material phenomenon and the antinomies of combined and uneven capitalist development. In articulating this theory about international legal argumentation that ultimately traces legal indeterminacy back to extra-disciplinary, ‘biggest picture’ structures, I am conscious of the problems that occur when we link (or, more unfortunately, reduce) the textual to the material and the specificities of legality to the contradictory realities of imperialism. However, I think that the risks involved in this exercise are worth taking, since: ‘The enterprise of merely understanding the legal order is not one likely to be taken up by a person radically opposed to the status quo. Opposition to the status quo does not easily survive the kind of identification with the legal system that seems to be a psychological precondition for really understanding it.’45 My symptomatic reading of international law’s texts is animated by the proposition that, whatever the discipline’s fathers had in mind when they were writing their treatises,46 the texts that they actually produced offer a blueprint for the construction of legal relations amongst political communities in a world shaped by the rapid expansion of capitalist relations of production, with all the tensions, contradictions and unevenness this process entailed. Furthermore, if ‘civilisation’, this peculiar, wholly contradictory and unstable legal argument, still lingers with us, this is because international lawyers are still tasked with producing order out of the world of combined and uneven development that capitalism constantly reproduces.

45

46

Duncan Kennedy, ‘The Structure of Blackstone’s Commentaries’ (1979) 28 Buffalo Law Review 205–382, 218. After all, as Tomlins has argued, if the historicist follows her approach to its logical conclusion, she will have to acknowledge the irreducible strangeness and unknowability of the past: ‘True historicism – absolute différance – would have to deny the possibility that its object of attention is intelligible, rendering it a species of antiquarianism: the past for its own sake, impossible to understand, entirely enigmatic; phenomena to preserve as best one can, in a state of reverence.’ Christopher Tomlins, ‘Historicism and Materiality in Legal Theory’ in Maksymilian Del Mar and Michael Lobban (eds.), Law in Theory and History: New Essays on a Neglected Dialogue (Oxford/Portland, OR: Hart Publishing 2016) 57–83, p. 65.

.  



Before proceeding, however, two clarifications are required. In this section, I have treated law as a textual discipline without much argumentation to that effect. The first caveat to this approach is that this textuality is not central to all and any legal system across space and time. This book focuses on a particular model of international law that emerged in Europe as a distinct discipline and profession sometime during the late nineteenth century. Not all legal systems are necessarily textual. In fact, it is the materialist orientation of this book that compels me to emphasise that a general theory of law, across time, space, and modes of production is both impossible and undesirable.47 If law is the product of concrete social realities and relations, then it is impossible to abstract a general category of ‘law’ that somehow captures the essence of the phenomenon of legality in capitalist, feudal, Indigenous and socialist societies alike. Therefore, my insistence on textuality is not as relevant, for example, to Indigenous legal systems.48 This does not mean that these systems are not legal, only that the tools of analysing modern, capitalist legality are finite and cannot be generalised. Therefore, my first clarification concerns this book’s focus on a particular system of inter-communal legality, or what we can call – for the sake of simplicity – Western international law. This choice of focus is, of course, not uncontroversial. Both Indigenous and settler legal scholars have been stressing the necessity to provincialise Western law and acknowledge the continuing validity and effectiveness of Indigenous legal systems, not least because the displacement of Indigenous legality by that of the settler constitutes a core element of settler colonialism and its genocidal tendencies.49 The point 47

48

49

Here, I am echoing directly the remarks by the Marxist political theorist Nicos Poulantzas, who has argued that no general theory of the state is ever possible from within Marxism, only a theory of the capitalist state: ‘For just as there can be no general theory of the economy (no “economic science”) having a theoretical object that remains unchanged through the various modes of production, so can there be no “general theory” of the statepolitical (in the sense of a political “science” or “sociology”) having a similarly constant object.’ Nicos Poulantzas, State, Power, Socialism (New York: Verso 2001) p. 19. For some instructive examples of Indigenous jurisprudence, see: Irene Watson, ‘Sovereign Spaces, Caring for Country, and the Homeless Position of Aboriginal Peoples’ (2009) 108 South Atlantic Quarterly 27–50; Anna Dziedzic and Mark MacMillan, ‘Australian Indigenous Constitutions: Recognition and Renewal’ (2016) 44 Federal Law Review 337–61; Ruth Buchanan and Jeffery Hewitt, ‘Treaty Canoe’ in Jessie Hohmann and Daniel Joyce (eds.), International Law’s Objects (Oxford: Oxford University Press 2018) 491–503. On the need to take Indigenous laws across the world seriously, see: Haunani-Kay Trask, From a Native Daughter: Colonialism and Sovereignty in Hawai’i (Honolulu: University of Hawai’i Press 1999); Irene Watson, ‘There Is No Possibility of Rights without Law: So Until Then, Don’t Thumb Print or Sign Anything!’ (2000) 5 Indigenous Law Bulletin 4–7;



     

is well-taken. However, it remains a fact that through the process of violent colonisation, capitalist expansion and ideological hegemony Western international law has achieved a geographical spread, thematic expansion and claim to universality that is historically unique, even if it is never complete and final. Furthermore, even though to say that international law is exclusively responsible for environmental degradation or the resurgence of the far-right and political turmoil around us would be an act of legal fetishism only a lawyer would be capable of, it is the case that Western international law shares logic with the causes of these phenomena and constitutes one aspect of the causal nexus that brings them about. Therefore, subjecting Western international law to critical scrutiny does not necessarily reify its pretences of exclusivity and universality,50 but rather registers its historically unique hegemony and influence. Second, my emphasis on textuality does not imply that textual practices of reading exhaust Western international law. I am well aware of the importance of ritual as well as all these repetitive, stylised practices Jessie Allen describes as ‘legal magic’.51 It is not enough that the International Court of Justice judges pronounce on whether a certain territory lawfully forms part of this or that state. They have to do so in a specific time and place, following particular rituals and protocols, even wearing specifically designated clothes. Otherwise, their text is legally inconsequential. In other words, despite its pretences of modernity and rationality, international law remains steeped with legal magic, which gives validity and social influence to its texts. This recognition of the non-textual aspects of international law is essential and points, once again, to the finite

50

51

Heidi Kiiwetinepinesiik Stark, ‘Nenabohzo’s Smart Berries: Rethinking Tribal Sovereignty and Accountability’ (2013) Michigan State Law Review 339–54; Carwyn Jones, ‘A Māori Constitutional Tradition’ (2012) New Zealand Journal of Public and International Law 187–203. On a productive intellectual encounter with Indigenous laws and modes of living as a way of re-imagining one of the discipline’s central concepts, sovereignty, see: Michael Fakhri, ‘Third World Sovereignty, Indigenous Sovereignty, and Food Sovereignty: Living with Sovereignty despite the Map’ (2018) 9(3–4) Transnational Legal Theory 1–36. Margaret Davies has expressed this concern about critical legal scholarship reifying positive state law as follows: ‘Such descriptions of law . . . may also unwittingly entrench the power of law by presenting it as a totality, rather than as fragmented and complex. The presumption of law in its positivist sense does discursively reiterate and therefore reinforce the positivist view of law together with its in-built biases.’ Margaret Davies, ‘The Ethos of Legal Pluralism’ (2005) 27 Sydney Law Review 87–112, 93. Jessie Allen, ‘A Theory of Adjudication: Law as Magic’ (2008) 41 Suffolk University Law Review 773–831.

. ,  & 



character of my argument. However, it does not take away from the fact that (Western) international law remains an argumentative, textual practice and that placing this textuality at the centre of our inquiry is a first, but an indispensable step in the process of comprehending both legality and its relationship with other social phenomena. This monograph is especially concerned with the interplay between international law, imperialism and capitalism. The proceeding sections attempt a critical engagement with these structures and with how we can locate the texts of international law within them.

1.2 Imperialism, Capitalism and the Contradictory Structure of International Legal Argumentation 1.2.1 The Capitalist Mode of Production: A Very Brief Introduction Ours is a time of crises. A decade after the global financial crash the edifice known as the ‘liberal international order’ is under profound pressure. Worryingly, some of the alternatives competing for hegemony offer an even more violent, exploitative and environmentally destructive future than the current configuration.52 As a result, the reflex to defend the current legal order is shared by many of its critics and supporters alike. My monograph, however, is animated by a concern that unconditionally defending the status quo will turn out to be either ineffective or outright destructive. Indeed, if I am right to argue that ‘civilisation’ remains a central disciplinary argument and that it is structured around a constant sliding between ‘improvement’ and ‘biology’, then any effort to counter the rise of the far-right without questioning authoritarian neoliberal capitalism will always yield precarious gains. This does not entail an unthinking equation of the two. However, it does suggest that in terms of disciplinary logic and argumentation it is both historically and conceptually unconvincing to draw a firm line between the recurring demand for political communities to comply with the imperatives of capitalist modernity and the open subjugation of such communities 52

For two compelling accounts of the rise of the far-right and its vision for ‘the international’ that focus on Brazil, see: Rose Parfitt, ‘The Far-Right, the Third World and the Wrong Question’ (2019) Third World Approaches to International Law Review: Reflections, available at: https://twailr.com/the-far-right-the-third-world-and-the-wrong-ques tion/; Luis Bogliolo, ‘Law, Neoliberal Authoritarianism, and the Brazilian Crisis’ (2019) Third World Approaches to International Law Review: Reflections, available at: https:// twailr.com/law-neoliberal-authoritarianism-and-the-brazilian-crisis/.



     

based on presumptions of immutable difference. (Neo)liberal hopes to sever the former from the latter are, I argue, futile and particularly dangerous in the current political conjuncture. In this section, I will outline the basic tenets of the Marxist theory of the capitalist mode of production and its tendency towards limitless expansion. In so doing, I aim to show that Marxism offers a systematic critique of capitalism as a mode of production and as a way of organising our co-existence with other humans and with nature that is not reducible to the (very real and necessary) analyses of particular social formations or even modalities of capitalist accumulation, such as neoliberalism. However, this emphasis on systematicity does not imply an aversion towards complexity or even towards the contradictory character of social relations. Rather, I will demonstrate that an emphasis on the tensions that characterise capitalism as a mode of production in general and its spatial diffusion, in particular, has consistently been at the core of Marxist engagements with capitalism and, notably, imperialism. Besides offering an overview of the Marxist critique of capitalism and imperialism, this section also briefly engages with materialist articulations of the relationship between capitalism and racist or gendered oppression. In this way, I will offer a roadmap of my engagement with international law as a specifically textual discipline and I will draw a line between race or gender as material relations that are partly constituted through law, and race or gender as metaphors and justifications for domination. When brought to bear on the current political moment, a Marxian lens enables us to move beyond ‘false contingencies’53 and to analyse the role of international law both in the construction of power and in the creation of dispossession, displacement and poverty. Furthermore, this Marxian outlook towards law enables us to conceptualise both as two sides of the same coin. Take, for example, Susan Marks’s critique of analyses of poverty that isolate the phenomenon from wealth and capitalist accumulation: [This] analysis is notably lacking in attention to the relational dimensions of global poverty. This is epitomised in the notion of the ‘bottom billion’

53

‘[W]e need also to be on guard against what might correspondingly be termed false contingency. For just as things do not have to be as they are, so too history is not simply a matter of chance and will. The concept of false contingency refers to this idea, and to the limits and pressures, tendencies and orientations, over-determination and determination in the last instance, that shape both realities and possibilities.’ Susan Marks, ‘False Contingency’ (2009) 62 Current Legal Problems 1–21, 10.

. ,  & 



itself – a number that is relative (to the top or next billion), and yet, as a concept, curiously autonomous and non-relational: these poorest of the poor are simply there, a feature on our analytical landscape . . . Those who benefit from current arrangements remain comfortably out of view.54

Marxists emphasise that wealth accumulation can only occur because of the exploitation and dispossession inflicted upon domestic working classes and colonial territories. In international law, as well as in everyday parlance, ‘exploitation’ has connotations of immorality when used in reference to interpersonal relations.55 However, for Marx, it meant essentially that the dominated class, which in the case of the capitalist mode of production is the working class, produces not only the means for its own subsistence, but also for that of the ruling class. What is purchased by the capitalist is the human capacity for labour (labour-power) for a specific period of time (for example, one day). If labour-power is sold for a day, the next question that arises is to determine the length of the working day. Marx argued that under the capitalist mode of production the labourer does not just work the number of hours necessary to produce goods of value equivalent of the value of her sold labourpower. Rather, the ordinary length of the working day includes a number of hours during which the labourer works to produce value not for herself, but for the capitalist who has bought her labour. In the course of this time, the labourer is not producing to sustain herself, but rather she is producing value for the capitalist. However, since the labourer receives a wage for the sum-total of the one day she has worked, it is not readily evident that the working day is divided into two parts: one in which she works to create commodities the value of which are necessary for her survival, and a second in which she creates value without being paid for it. As Marx argued: ‘The wage-form thus extinguishes every trace of the division of the working-day into necessary labour and surpluslabour, into paid and unpaid labour. All labour appears as paid labour.’56 In this context, the difference between the newly added value and the value of labour-power is the surplus value. By moving from the ‘value of labour’ to the ‘value of labour-power’ Marx managed to escape the fact 54

55

56

Susan Marks, ‘Human Rights and the Bottom Billion’ (2009) 9 European Human Rights Law Review 37–49, 48–9. Susan Marks, ‘Exploitation as an International Legal Concept’ in Susan Marks (ed.), International Law on the Left: Re-examining Marxist Legacies (Cambridge: Cambridge University Press 2008) 281–307, p. 294. Karl Marx, Capital: A Critique of Political Economy (first published 1867, translated by Ben Fowkes, London: Penguin Books 1992) vol. 1, p. 680.



     

that ‘[t]he exchange between capital and labour at first presents itself to the mind in the same guise as the buying and selling of all other commodities’.57 By purchasing the worker’s ability to perform labour, the capitalist has the opportunity to extract as much labour as possible from the worker. This can happen either through the extension of the working day, to which we will return shortly, or through monitoring and measuring the productive process to intensify it as much as it is humanely possible and, therefore, to extract as much labour (and surplus value) as possible within a given amount of time. Recent reports about the extreme working conditions in the warehouses of tech giants, where logistics workers are being constantly monitored and their bodily functions measured and constantly submitted to the imperatives of profit maximisation, indicate that this tendency of capital to ‘squeeze’ as much labour as possible remains relevant today. Therefore, the legal reality of the employment contract enables and also conceals the realities of the labour process that is constituted by legal, administrative and even illegal techniques and practices. Through his analysis, Marx also performs an incidental critique of law. The ‘emptiness’ of the legal form creates an apparent reality: it persuades us that two equal commodities are, indeed, being exchanged. However, labour-power and capital are two fundamentally incommensurable commodities, and they need to be treated as such, despite the effects of legal ideology. This is the case because labour-power is a very special commodity to the extent that its application, labour, creates value: In order to extract value out of the consumption of a commodity, our friend the money-owner must be lucky enough to find within the sphere of circulation, on the market, a commodity whose use-value possesses the peculiar property of being a source of value, whose actual consumption is therefore itself an objectification of labour, hence a creation of value. The possessor of money does find such a special commodity on the market: the capacity for labour, in other words labour-power.58

Conversely, capital ‘is essentially the command over unpaid labour . . . The secret of the self-expansion of capital resolves itself into having the disposal of a definite quantity of other people’s unpaid labour’.59 Therefore, it is a constitutional interest of capital to expand the working day and to intensify the pace of the labour-process, since this is the only 57 58 59

Ibid., p. 681. Ibid., p. 270 (emphasis added). Ibid., p. 500.

. ,  & 



method of maintaining its existence as a self-valorising value, a constant drive to produce ever-increasing amounts of surplus-value. However, this is a process fundamentally destructive for labourers, whose physical and mental condition deteriorates rapidly. This is not due to individual capitalists’ greed or other objectionable moral qualities. Competition between individual capitals compels capitalists to follow this logic of accumulation through exploitation without even realising it. After all, legal ideology is not a ruse orchestrated by capitalists and their representatives. Rather, it produces hegemonic effects for the entirety of a social formation and exerts its influence over everyone, including capitalists. In this respect, Marx’s critique of the capitalist mode of production was not directed against the character of specific individuals, but it was a critique of the very structure of capitalist society.

1.2.2 The ‘Secret’ of Primitive Accumulation, Imperialism and International Law So far, my analysis of the capitalist mode of production has assumed, albeit implicitly, a domestic legal framework. Importantly, in Marx’s thought the question of the ‘international’ appears hand-in-hand with the issue of the historicity of capitalism. From the early stages of his analysis, Marx was keenly interested in the social stratifications constantly produced and reproduced through the relations of production. Importantly, the existence of masses in possession of nothing else but their ability to work was not a natural phenomenon: [N]ature does not produce on the one hand owners of money or commodities, and on the other hand men possessing nothing but their own labour-power. This relation has no basis in natural history, nor does it have a social basis common to all periods of human history. It is clearly the result of a past historical development, the product of many economic revolutions, of the extinction of a whole series of older formations of social production.60

In other words, Marx vehemently rejected any conceptualisation of the capitalist mode of production as ahistorical or natural. The capitalist mode of production did not always exist, nor did it emerge peacefully or automatically from the gradual and peaceful expansion of the market. It was through a process of violence, brute force and systematic 60

Ibid., p. 273.



     

dispossession – in which the state and (international) law played a pivotal role – that the capitalist mode of production came into existence. In Marx’s own, graphic language: ‘[i]f money . . . “comes into the world with a congenital blood-stain on one cheek”, capital comes dripping from head to foot, from every pore, with blood and dirt.’61 The creation of free labourers presupposes the radical separation of large masses from the means of production. Marx utilised the specific case of Britain as the model capitalist state of his time, but always with the purpose of drawing general conclusions: ‘If, however, the German reader pharisaically shrugs his shoulders at the condition of the English industrial and agricultural labourers, or in optimist fashions comforts himself with the thought that in Germany things are not nearly so bad; I must plainly tell him: De te fabula narratur!’62 In a series of vivid descriptions, Marx sketched the violent process of enclosures when peasants were violently driven out of their lands and they were banned from accessing the ‘commons’: the forests, rivers and hunting sites that provided them with timber, fish or meat and other essential means of subsistence, partly decoupling their survival from their subjection to wage-labour. At the same time, draconian laws were put in place punishing those who refused to submit themselves to the discipline of wage-labour by becoming beggars, vagabonds or thieves. It was through these draconian methods that ‘men are suddenly and forcibly torn from their means of subsistence, and hurled as free and “unattached” proletarians on the labour-market’.63 The emergence of the capitalist mode of production was, thus, far from a smooth, natural or spontaneous process, with people ‘realising’ the supposed advantages of the free-market. Rather, state-sanctioned violence and law were central to the whole process. Known as ‘primitive accumulation’, this theory lies at the heart of the Marxist claim that capitalism came about as a historically specific mode of production and was established through acts of immense violence and brutality, and, therefore, does not constitute a natural phenomenon or the embodiment of human nature. Relatedly, the historicity of capitalism offered the prospect of its overcoming. This was a theoretical fact of paramount significance for Marx and Marxists, who generally are not simply interested in exploring the contradictions of capitalist production in theory but committed to overthrowing capitalism through political struggle. 61 62 63

Ibid., p. 926. Ibid., p. 90. Ibid., p. 878.

. ,  & 



This struggle does not, however, take place in a neutral terrain. From the beginning of the process of primitive accumulation, the state and law became integral in the emergence and reproduction of the capitalist relations of production. This importance for political and legal relations for capitalism becomes far less clear if we take as the focal point of our analysis the ‘commodity-form’ and ignore Marx’s actual contributions to political economy and the philosophy of history, including his labour theory of value, his explanation of capitalist exploitation and his unpacking of the internal logic of capital. Undeniably, the generalisation of the commodity-form is a significant and integral part of this process. However, the attempt to derive the ‘nature’ of (international) law exclusively from the commodity-form attaches Marxian theories of law to the common-sense realities of the circulation sphere that involve commodity owners trading freely in the market. This, however, ignores the conceptually unbreakable ties between the sphere of circulation and the sphere of production in Marx and the fact that law plays a crucial role in organising the subjugation of this very special commodity, labour-power. Interestingly, Marx explicitly warned against such an approach that overemphasises the importance of circulation in capitalism: ‘[i]t is typical of the bourgeois horizon, moreover, where business deals fill the whole of people’s minds, to see the foundation of the mode of production in the mode of commerce corresponding to it, rather than the other way round.’64 Such an approach collapses Marxist theories of law into classic liberal theories that assume a conceptual priority of the free and equal individual when thinking about law. In essence, a theory of law that derives the legal system from the ‘commodity owner’ replicates the liberal imaginary of individuals who exist as individuals in a pre-political stage and only adds to this conception a superficial element of political economy by designating this pre-political individual as a ‘commodity owner’. Therefore, Pashukanian approaches to law largely assume that the commodity-owner is a natural figure and not one that emerges through bureaucratic and legal techniques of individualisation and, crucially, the separation of individuals from the means of production and their traditional (legal) links to family, land and community. This question of the separation of peoples from their traditional matrixes of production and reproduction raises once again the role of law in processes of primitive accumulation. Marx did not exclusively

64

Marx, Capital, vol. 2, p. 120.



     

focus on Britain when discussing primitive accumulation. Colonialism features centrally in his engagement with primitive accumulation, also echoing his (and Engels’) growing interest in revolutionary politics outside Western Europe.65 As Mark Neocleous has pointed out, the tendency of capitalism towards constant spatial expansionism was an issue of great concern to Marx for several years.66 Primitive accumulation in the colonies was unfolding in front of his readers’ eyes: ‘[t]here [in the colonies] the capitalist regime everywhere comes into collision with the resistance of the producer, who, as owner of his own conditions of labour, employs that labour to enrich himself, instead of the capitalist.’67 Once again, Marx stressed that money, machines or otherwise accumulated wealth are not capital, for ‘capital is not a thing, but a social relation between persons which is mediated through things’.68 For capitalist social relations to be established, the existing modes of production in the colonies had to be dismantled, in order for ‘free’ labourers to submit themselves to the process of capitalist accumulation. In Marx’s later thought, colonialism is portrayed not simply as a process of alien domination and extraction of natural resources for the enrichment of the colonial metropolis. Rather, what distinguishes ‘modern’ colonialism from ancient practices of conquest and pillage were its profoundly transformative functions and its long-term effects in incorporating an ever-growing range of territories into the circuits of capitalist production and exchange. In Capital, colonialism is conceptualised as a distinct step in the process of primitive accumulation, as a method for the further expansion of the capitalist mode of production beyond the spatial matrix in which it originally triumphed. It is worth recalling that the closing sentence of the first volume of Capital reads as follows:

65

66

67 68

For a debunking of the argument that Marx and Engels were Eurocentric all the way down, see: August H. Nimtz, ‘The Eurocentric Marx and Engels and Other Related Myths’ in Crystal Bartolovich and Neil Lazarus (eds.), Marxism, Modernity, and Postcolonial Studies (Cambridge: Cambridge University Press 2004) 65–80, p. 67. Criticising Chimni’s assertion that colonialism did not directly feature in Marx’s work, Neocleous retorts: ‘This is a bizarre claim, since capital’s tendency to spatial expansion was a main theme of Marx’s work.’ Mark Neocleous, ‘International Law as Primitive Accumulation; Or, the Secret of Systematic Colonization’ (2012) 23 European Journal of International Law 941–62, 945. Marx, Capital, vol. 1, p. 931. Ibid., p. 932.

. ,  & 



The only thing that interests us is the secret discovered in the New World by the political economy of the Old World, and loudly proclaimed by it: that the capitalist mode of production and accumulation, and therefore capitalist private property as well, have for their fundamental condition the annihilation of that private property which rests on the labour of the individual himself; in other words, the expropriation of the worker.69

Indigenous scholars sympathetic to Marxism, such as Glen Coulthard and Nick Estes, have drawn from these final pages of Capital to theorise settler capitalism, while simultaneously offering crucial corrections to the classic Marxist theory of primitive accumulation.70 Indeed, Coulthard suggested that Marx’s theory was indispensable, but also inadequate on two grounds. First, by confining primitive accumulation to the prehistory of capitalism, we become oblivious of the constant tendency of settler capitalism to use force, violence and brute dispossession in order to further its encroachment into Indigenous lands. In the words of Coulthard: ‘Settler colonialism is territorially acquisitive in perpetuity.’71 Relatedly, Nick Estes’s work has documented the centrality of resource extraction in such processes of combined territorial and capitalist expansion by showing that, far from being only the historical matrix of modern capitalism, violent, but also legally sanctioned, land dispossession is constantly enforced upon and resisted by Indigenous peoples across the world.72 For Estes, Indigenous history and resistance to such dispossession enact ways of life that are not structured around the imperatives of profit, but rather emphasise notions of care and interconnection between human and non-human relatives alike, offering the blueprint for a noncapitalist future for Indigenous peoples and settlers alike.73 Second, Indigenous scholars have resisted the classical Marxist conceptualisation 69 70

71 72

73

Ibid., p. 940. Glen S. Coulthard, Red Skin, White Masks: Rejecting the Colonial Politics of Recognition (Minneapolis, MN: University of Minnesota Press 2014); Nick Estes, Our History Is the Future: Standing Rock versus Dacota Access Pipeline, and the Long Tradition of Indigenous Resistance (London/New York: Verso 2019). Coulthard, Red Skin, White Masks, pp. 151–2 (emphasis as in the original). ‘US Crude oil production skyrocketed from 2008 to 2016 – an 88 percent increase, thanks to the shale oil boom in the United States and the tar sands boom in Canada. With this acceleration came new oil pipelines and new sites of extraction . . . Indigenous lives, lands, waters and air were once again sacrificed to help pull settler economies out of the gutter.’ Estes, Our History Is the Future, p. 29. ‘Perhaps the answers lie within kinship relations between Indigenous and nonIndigenous and the lands we both inhabit. There is a capaciousness to Indigenous kinship that goes beyond the human and that fundamentally differs from the heteronuclear family or biological family.’ Ibid., p. 256.



     

of land dispossession as the first step for proletarianisation. In other words, in the context of settler colonies, dispossession did not necessarily lead to the mass movement of Indigenous peoples into industrial centres and their transformation into wage labourers. Rather, economic marginalisation often followed these processes. This does not mean that in settler colonies land dispossession was not linked to capitalism. On the contrary, it is precisely in settler colonies that this process is central to capitalist transformation by providing the very spatial matrix, the terrain that settler capitalism needs in order to establish and constantly reproduce itself: Increased European settlement combined with an imported, hyperexploited non-European workforce meant that, in the post-fur trade period, Canadian state-formation and colonial-capitalist development required first and foremost land, and only secondarily the surplus value afforded by cheap, Indigenous labor.74

Therefore, Coulthard argued, Marxists need to suspend Eurocentric ideas about the contours of primitive accumulation and confront the fact that in settler colonies it was land as such, and not the ultimate goal of wage labour, that became central to the process, thereby tailoring both their analyses and, crucially, their anti-capitalist struggles accordingly.75 These arguments are persuasive and fruitful well beyond the context of settler colonialism. They offer us guidance on how to begin conceptualising the relationship between international law, capitalism and imperialism. First, they do so by reminding us that the expansion of capitalist relations of production in the present time is not only governed by the internal logic of capital but still relies on the legal, semi-legal and paralegal violence of the state, settler or otherwise. Moreover, thinking about primitive accumulation as re-articulated by Indigenous scholars enables us to account both for the global tendencies of capitalism and for the specific dynamics of how capitalist relations of production develop in different local, state or regional contexts. Put differently, the tendency of capitalism to expand without limit and the universalising effects of this expansion do not mean that every single region of the world is progressing towards the same material conditions, be it impoverishment (when it comes to capitalism’s critics) or prosperity (if we trust its defenders). 74 75

Coulthard, Red Skin, White Masks, p. 12. For example, Coulthard is critical of the leftist call to ‘return to the commons’ as a response to neoliberal privatisation in the context of settler colonies in so far as this slogan ignores the claims of Indigenous peoples over such commons. Ibid.

. ,  & 



Rather, the process of capitalist expansion assumes different concrete forms depending on the specificities of both local development and international interaction. One major historical factor that has been continuously shaping both national dynamics and trans-boundary interactions is, of course, the earlier transition of Western Europe to capitalism and the rise of Western imperialism. Debates about the origins of capitalism and its emergence in Western Europe abound both within and beyond Marxism. Even though Marxists disagree about whether this transition to capitalism had origins internal to the West or global origins,76 they share a vehement rejection of culturalist explanations that credit Christianity, Western civilisation or the prodigiousness of the ‘white race’ for this transition. In fact, the Third Worldist Marxist Samir Amin coined the term ‘Eurocentrism’ to critique precisely this culturalist mystification of the West’s transition to capitalism and its subsequent political, economic, military and ideological dominance.77 Even though the term is currently used in international legal discourse to denote and denounce several disparate disciplinary practices and assumptions, it carried a narrower, more specific meaning in the work of Amin.78 Eurocentrism is an ideological construct that mystifies and thereby justifies Western prosperity and imperial domination over the rest of the world. Amin argued that imperial domination was the outcome of objective historical processes of capitalist expansion, and not the natural result of European inquisitiveness, hard work and bravery. He insisted that the military advantages of the West resulted from the historically contingent rise of both capitalism and the centralised state in that region and did not constitute the expression of some inner virtue and superiority of Christianity or the white race. For Amin, Eurocentrism obscured the material origins of the rise of the West, attributing its domination to immutable cultural difference instead. Within the Eurocentric universe, these phenomena were made to look both inevitable and historically as well as morally justifiable as the only path to modernity for an inherently 76

77 78

For an overview of the debate that adopts the latter position, see: Anievas and Nişancıoğlu, How the West Came to Rule, pp. 13–42. For a riposte, see: Maïa Pal, ‘“My Capitalism Is Bigger Than Yours!” Against Combining “How the West Came to Rule” with “the Origins of Capitalism”’ (2018) 26 Historical Materialism 199–224. Samir Amin, Eurocentrism (2nd edn, New York: Monthly Review Press 2009). For a critical engagement with Eurocentrism as a disciplinary ‘empty signifier’, see: Ntina Tzouvala, The Specter of Eurocentrism in International Law Yale Journal of Law and the Humanities (forthcoming).



     

stationary East.79 Therefore, Amin argued, there was something historically unique about nineteenth-century European racism and overall sense of superiority that is incommensurate with earlier forms of xenophobia and chauvinism exhibited, for example, by Christians towards Muslims and vice versa, which were symmetrical mirrors of each other: During the Crusades, Christians and Muslim each believed themselves to be the keepers of the superior religious faith, but at this stage of their evolution, as evidence has proven, neither one was capable of imposing its global vision on the other. This is why the judgements of the Christians, at the time of the Crusades, are no more ‘Eurocentric’ than those of the Muslims are ‘Islamocentric’. Dante relegated Mohammed to Hell, but this was not a sign of a Eurocentric conception of the world, contrary to what Edward Said has suggested. It was only a case of banal provincialism, which is something quite different, because it is symmetrical in the minds of the two opposing parties.80

Unlike this pedestrian distrust of strangers, Amin argues, Eurocentrism is a significant ideological component of the global expansion and reproduction of capitalism in ways that denied non-Europeans any form of historical agency and commanded them into Europeanising themselves at the pains of irreversible social and cultural decline.81 The impossibility of this command was central to Samir Amin’s analysis of capitalism, which for him tended towards increasing polarisation between the centre and the peripheries, rather than homogenisation around a Western model of prosperity, modernity and freedom: ‘this conquest progressively created a growing polarization at the heart of the system, crystallising the capitalist world into fully developed centres and peripheries incapable of closing the ever widening gap.’82

1.2.3 Gender, Race and Sexuality as Material Relationships and as Textual Metaphors Amin was not the only Marxist to underscore this tendency of capitalism to create new or exploit already-existing stratifications among people and to mobilise ideology in order to justify and reproduce these stratifications. Notably, Marxist historians of race and racism were 79 80 81 82

Amin, Eurocentrism, p. 71. Ibid., pp. 153–4. Ibid., p. 180. Ibid., p. 154.

. ,  & 



adamant that even though ideas of racial differentiation might have been circulating for centuries, it was the very material practices of exploitation of colonial lands and labour as well as, notably, practices of slavery that led to the stabilisation of race as a way of ordering and governing human bodies and their relationship to the economy. Starting with Eric Williams’ classic Capitalism and Slavery, black Marxists made two crucial claims. First, slavery in the southern states of the United States as well as in the colonies could not be properly understood as an archaic, precapitalist form of production. Rather it was deeply embedded in national and transatlantic circuits of capitalist production, exchange and profit.83 Even though Williams’ work was initially dismissed and ignored, subsequent research into the everyday operations of slavery has shed light into the circulation of modern labour disciplining techniques between factories and the plantations as well as the deployment of highly sophisticated techniques of management and accounting to manage slavery and increase its productivity and profitability.84 Second, these Marxists argued that the ideological edifices of race and racism that were erected to justify these practices were not anachronisms but novel ideological schemes which were historically inseparable from the emergence of capitalism as a global mode of production. In the context of Marxist international legal scholarship, Robert Knox has drawn from these strands of thought to push back against both Marxist and post-colonial or critical race approaches that tend to privilege class/value over race and vice versa.85 Following closely Haiti’s encounter with international law, Knox instead argues that the history of the first black republic indicates how ‘[p]rofit maximisation was underscored and undergirded by racialisation’86 and how, notably, international law registered and

83

84

85

86

Eric Williams, Capitalism and Slavery (first published 1944, Chapel Hill, NC/London: The University of North Carolina Press 1994). See notably: Sven Beckert, The Empire of Cotton: A Global History (London: Penguin Books 2014); Caitlin Rosenthal, Accounting for Slavery: Masters and Management (Cambridge, MA: Harvard University Press 2018). Robert Knox, ‘Valuing Race? Stretched Marxism and the Logic of Imperialism’ (2016) 4 London Review of International Law 81–126. In the field of property law, Brenna Bhandar’s work has also been path-breaking in bringing together in novel and productive ways law, race and capitalism: Brenna Bhandar, ‘Title By Registration: Instituting Modern Property Law and Creating Racial Value in the Settler Colony’ (2015) Journal of Law and Society 253–82; Brenna Bhandar, Colonial Lives of Property: Law, Land and Racial Regimes of Ownership (Durham, NC/London: Duke University Press 2018). Knox, ‘Valuing Race?’, 125.



     

imposed upon Haiti evolving modes of racialisation that facilitated evolving patters of global capitalist accumulation.87 Similarly, Marxists, and more broadly socialist feminists, contended that even though patriarchy predated capitalism, the latter reconfigured the former in crucial ways in order to exploit women’s reproductive capacity and to safeguard a reliable source of the unpaid domestic labour and care essential for the reproduction of labourers and the conditions of capitalist production as a whole.88 Simultaneously, these feminists argued, commodity fetishism and modern techniques of advertising and branding render this indispensable reproductive labour of women invisible, positing that it is through the purchase of this or that commodity that social reproduction is accomplished. Bringing together gender, race, commodities, and, crucially, the importance of commodities in the attainment of civilised status, Anne McClintock has argued that: The manufacture of soap . . . burgeoned into an imperial commerce; Victorian cleaning rituals were peddled globally as the God-given sign of Britain’s evolutionary superiority, and soap was invested with magical, fetish powers. The soap saga . . . embodied a triangulated crisis in value: the undervaluation of women’s work in the domestic realm, the overvaluation of the commodity in the industrial market and the disavowal of colonized economies in the arena of empire.89

Marxist feminists and more recently queer Marxists also argue that the rise of capitalism was inexorably linked to the naturalisation of the gender binary and to the suppression of forms of sexuality that were considered wasteful and unproductive.90 87 88

89

90

Ibid., 124. Amongst many: Alexandra Kollontai, ‘The Social Basis of the Woman Question’ in Alix Holt (ed.), Selected Writings of Alexandra Kollontai (London: Allison and Busby 1977) 58–74; Mariarosa Dalla Costa and Selma James, The Power of Women and the Subversion of the Community (Bristol: Falling Wall 1972); Silvia Federici, ‘Precarious Labour: A Feminist Perspective’ (2008) Journal of Aesthetics and Protest 1–9; Nina Power, ‘Reading Social Reproduction into Reading Capital’ in Nick Nesbitt (ed.), The Concept in Crisis: Reading Capital Today (Durham, NC/London: Duke University Press 2017) 219–28. Anne McClintock, Imperial Leather: Race, Gender and Sexuality in the Colonial Contest (New York/London: Routledge 1995) pp. 207–8. On the growing body of scholarship on queer Marxism, see: Kevin Floyd, The Reification of Desire: Toward a Queer Marxism (Minneapolis, MN/London: University of Minnesota Press 2009); Mario Mieli, Towards a Gay Communism: Elements of a Homosexual Critique (translated by David Fernbach and Evan Calder Williams, London: Pluto Press 2018); Holly Lewis, The Politics of Everybody: Feminism, Queer Theory, and Marxism at the Intersection (London: Zed Books 2016).

. ,  & 



This brief outline of the tendencies of capitalism to create, reproduce and repurpose stratifications based on geography, race and gender, apart from its obvious reliance on class exploitation, cannot and does not account for the rich and contradictory relationship between these different aspects of domination. Importantly, this monograph will not examine, for example, how international law has been instrumental in the production and reproduction of relationships of class, race and gender in specific historical conjunctures. Rather, this monograph focuses on the ways race, gender or sexuality have been used as metaphors to explain, justify and reproduce the unequal distribution of rights and duties under international law. In other words, I am interested in the ways these ideological and material categories have entered the international legal argument and have been constantly conditioning our collective imagination of what is possible and plausible and what is not. Importantly, I am emphatically not arguing that there is a direct correspondence between the constitutive elements of the ‘logic of biology’ in the language of international law and the non-textual, material relations of racist, sexist domination and exploitation. Indeed, it is one thing to argue, correctly, that the international legal meaning of gender or race is a product of international law and an altogether different one to contend that gender, class or race as such are products of international law. The latter contention is often animated by a determination not to allow international lawyers to displace responsibility somewhere outside the discipline, be it ‘politics’, ‘empire’ or even ‘illegality’,91 as well as by a post-structuralist sensibility that takes the textuality of the law seriously and resists efforts to draw a sharp line between the text and ‘real life’.92 Even though I share both intuitions, I am also concerned about the fetishisation of (international) law that ends up reducing complex social realities and the products of multiple determinations into the workings of one discipline, which also happens to be the one we have dedicated our careers to. In other words, and to reverse the famous saying, with (assertions of ) great responsibility comes great (discursive) power.

91

92

For some instructive examples, see: Nathaniel Berman, ‘In the Wake of Empire’ (1999) 14 American University International Law Review 1521–69; Fleur Johns, Non-Legality in International Law: Unruly Law (Cambridge: Cambridge University Press 2013). Orford has summarised these mainstream objections to critical theorising: ‘Lawyers have to deal with the facts on the ground and the problems facing real people in the real world. There is no time for abstract theoretical questioning when issues of life and death are at stake.’ Orford, Reading Humanitarian Intervention, p. 51.



     

The second reason that mandated this brief excursus into the relationship between capitalism, sexism and racism is that unlike many important critical engagements with international law, my work does not revolve around a critique of liberalism. Rather, it puts forward a critique of capitalism and the way in which its contradictions structure an international legal argument.93 Of course, I am not alone in this enterprise. Marxist engagements with international law have been studying closely different aspects of this entanglement between international law and capitalism.94 Still, in 2012 the Oxford Handbook of the History of International Law contained no index entry for capitalism or capital and only a couple of chapters dealt with issues of political economy.95 Today, as illiberal, authoritarian forms of capitalism are on the rise, it is important to remember that there is no historical or conceptual necessity for the combination of capitalism and liberalism, even though the latter has been a powerful and regular ideological companion of the former. Rather, both capitalism and imperialism have been justified and governed through an incredibly wide range of ideologies and political institutions. In fact, it is the very core of my position that international legal argument constantly oscillates between wildly divergent ideological justifications for the allocation of rights and duties amongst political communities. These 93

94

95

Some of the most incisive critiques of international law as a liberal enterprise include: Gerry Simpson, ‘Two Liberalisms’ (2001) 12 European Journal of International Law 537–72; Koskenniemi, From Apology to Utopia; Anne Orford, ‘Food Security, Free Trade and the Battle for the State’ (2015) 11(2) Journal of International Law and International Relations 1–67. The relevant literature has been growing exponentially during the last decade: Miéville, Between Equal Rights; Özsu, ‘Grabbing Land Legally’; Knox, ‘Valuing Race?’; Ali Hammoudi, ‘The Conjunctural in International Law: The Revolutionary Struggle against Semi-Peripheral Sovereignty in Iraq’ (2016) 37 Third World Quarterly 2028–46; B. S. Chimni, ‘Customary International Law: A Third World Perspective’ (2018) 112 American Journal of International Law 1–46; Grietje Baars, The Corporation, Law and Capitalism: A Radical Perspective on the Role of Law in the Global Political Economy (Leiden: Brill 2019); Mai Taha ‘Drinking Water by the Sea: Real and Unreal Property in the Mixed Courts of Egypt’ in Daniel S. Margolies, Umut Özsu, Maïa Pal and Ntina Tzouvala (eds.), The Extraterritoriality of Law: History, Theory, Politics (Abingdon: Routledge 2019) 119–33; Ntina Tzouvala, ‘“And the Laws Are Rude, . . . Crude and Uncertain”: Extraterritoriality and the Emergence of Territorialised Statehood in Siam’ in Margolies et al., The Extraterritoriality of Law, 134–50. Bardo Fassbender and Anne Peters (eds.), Oxford Handbook of the History of International Law (Oxford: Oxford University Press 2012). It was Martineau who first noted this absence: Anne-Charlotte Martineau, ‘Overcoming Eurocentrism? Global History and the Oxford Handbook of the History of International Law’ (2014) 25 European Journal of International Law 329–36, 330.

.    & 



contradictions would be damning if one was trying to anchor international law to a particular ideology, or, more optimistically would raise as many questions as they answer. Take, for example, Koskenniemi’s influential argument that the constant oscillation between descending and ascending patterns of argument in international law embodies the contradictions of the liberal doctrine of politics in its attempt to reconcile methodological individualism with the need to ground normatively the existence of political communities.96 The shortcoming of this explanatory scheme is that it displaces the problem from one set of texts (international law) to another (the works of liberalism). It does so without reflecting on why liberalism carries these impossible contradictions in the first place and, more importantly, why and how these contradictions become invisible and, at the end of the day, inconsequential in so far as liberalism remains hegemonic. In fact, Koskenniemi explicitly refuses to engage with these questions designating his project as a ‘vertical’ bringing together of two structures of thought and argumentation.97 On the contrary, I argue that because these argumentative contradictions of ‘civilisation’ reflect, in however a mediated way, very real contradictions of capitalism as a global system that produces both tendencies of homogenisation and dynamics of divergence and stratification at the same time, these discursive contradictions become possible, plausible and even necessary.

1.3 On Textual Indeterminacies and Material Structures: Towards a Reconciliation of Marxism and Deconstruction Writing in 2002, the influential critical race theorist Mari Matsuda expressed her distrust towards those sections of the legal left she identified as engaging in ‘deconstruction that comes without a progressive politics and a material component’.98 The target of her disagreement was dual. First, there was the long-standing debate between critical race theorists and some feminists on one side and traditional US-based critical legal studies (CLS) on the other about the usefulness of legal struggles for

96 97 98

Koskenniemi, From Apology to Utopia, pp. 91–2. Ibid., p. 72. Mari Matsuda, ‘Beyond and Not Beyond, Black and White: Deconstruction Has a Politics’ in Francisco Valdes, Jerome McCristal Culp and Angela P. Harris (eds.), Crossroads, Directions and a New Critical Race Theory (Philadelphia, PA: Temple University Press 2002) 393–8, p. 395.



     

women and racialised people and in particular about the usefulness of legal rights as a tool for the protection of the oppressed.99 Second, Matsuda expressed a broader concern about the post-structuralist impulse within and beyond legal academia to deconstruct and complicate well-established binaries, such as those of gender, race or sexuality. For her, a discursive destabilisation of such categories does not magically result in the undoing of the relevant oppressive relations. In fact, such intellectual and linguistic games can end up supplying ammunition to the opponents of progressive legal reforms, which for all their faults and simplistic conceptualisations produce tangible benefits for the oppressed.100 Marxist international lawyers for their part have been deeply divided about the first aspect of the disagreement, proposing anything from tactical embraces of international law and human rights to the position that the ‘chaotic and bloody world around us is the rule of law’.101 Arguably, Knox’s Leninist distinction between strategy and tactics provides the most politically defensible and plausibly materialist blueprint for action to the extent that it embraces (international) legal tactics but only in so far as they do not undermine the fundamental goal of human emancipation through socialism and communism.102 However, most Marxists tend to share the second point of Matsuda’s distrust towards the various ‘post-isms’ that rose to academic prominence in the 1990s. A deep scepticism towards what they perceive to be the excessive emphasis of post-structuralism, post-modernism and post-colonialism on textuality and their detachment from material realities and struggles unifies otherwise divergent strands of Marxian thought. Interestingly, 99

100 101

102

The most influential defence of this approach has been: Patricia J. Williams, The Alchemy of Race and Rights: The Diary of a Law Professor (Cambridge, MA: Harvard University Press 1991). For an exposition of the disagreements between critical race theory and critical legal studies from the perspective of the former, see: Mari Matsuda, ‘Looking to the Bottom: Critical Legal Studies and Reparations’ (1987) 22 Harvard Civil Rights-Civil Liberties Law Review 323–400. Matsuda, ‘Beyond and Not Beyond’, p. 396. Miéville, Between Equal Rights, p. 319 (emphasis as in the original). B. S. Chimni and Bill Bowring are amongst the staunchest defenders of international law as it emerged after decolonisation from a Marxist perspective: Bill Bowring, The Degradation of the International Legal Order? The Rehabilitation of Law and the Possibility of Politics (New York: Routledge-Cavendish 2008); Bill Bowring, ‘What Is Radical in “Radical International Law”?’ (2011) 22 Finnish Yearbook of International Law 1–29. Robert Knox, ‘Marxism, International Law and Political Strategy’ (2009) 22 Leiden Journal of International Law 413–36; Robert Knox, ‘Strategy and Tactics’ (2010) 21 Finnish Yearbook of International Law 193–229.

.    & 



and in a firm departure from Matsuda’s position, some Marxists have contended that obsession with textuality has led the non-materialist wing of TWAIL (Third World Approaches to International Law) to adopt voluntaristic approaches to international law. These underestimate the importance of mass politics and imply that the progressive reimagination of the discipline is simply a matter of disciplinary will and professional imagination. Focusing, rather unsurprisingly, on the question of revolution, Hammoudi, Taylor and Miéville have all argued against the theoretical distortion of centring textual indeterminacy, suggesting that this necessarily leads to political co-option and rejection, or at least side-lining, of mass political struggle towards radical political rupture.103 In one way or another, the politics of deconstruction in and for law remain suspect. I hasten to add that this concern about the politics of deconstruction is also shared by legal theorists with impeccable deconstructionist credentials, albeit on very different grounds. In a 1990 article, Pierre Schlag warned against the possibility of deconstruction becoming yet another technique in the toolbox of the lawyerly subject, who (thinks that he) remains whole, rational and composed and is therefore situated outside the contradictions of the text: Legal thinkers have learned that the text is a bad place to work out contradictions, aporias, and other intellectual difficulties. Texts create all sorts of problems . . . Better, then, to find some place to deal with these difficulties that is impervious to texts – say, for instance some mystical place outside the text – say, the good judgments of the pragmatist.104

I will return to this point in the conclusion of this monograph where I push back against the joint emergence of deconstruction and the figure of the lawyer in critical international law. For now, it suffices to note that the political orientation of textual techniques that seek to expose the unstable and contradictory nature as well as the uncertain foundations of international law, or in other words its indeterminacy, is not always settled or unconditionally progressive and emancipatory and that 103

104

Owen Taylor, ‘Reclaiming Revolution’ (2011) 22 Finnish Yearbook of International Law 259–82; Anne Orford et al., ‘War, Force and Revolution’ (2006) 100 Proceedings of the American Society of International Law at Its Annual Meeting 261–77; Hammoudi, ‘The Conjunctural in International Law’. Pierre Schlag, ‘“Le Hors de Texte, C’est Moi”: The Politics of Form and the Domestication of Deconstruction’ (1990) 11 Cardozo Law Review 1631–74, 1659 (emphasis as in the original).



     

scholars sympathetic to deconstruction have also acknowledged this ambiguity. However, as I will show shortly, these concerns and tensions might be justified, but they do not negate the contribution of deconstruction for engaging critically with international law. Rather, the articulation of a materialist framework for understanding legal indeterminacy is a core methodological intervention of the monograph at hand. In international law, Marxist scepticism towards deconstruction and its emphasis on textual indeterminacy has culminated in extensive critical engagement with the works of David Kennedy and, primarily, Martti Koskenniemi.105 It is telling, for example, that Chimni’s second edition of his classic International Law and World Order included a chapter exclusively dedicated to the two ‘father figures’ of critical international law.106 A common objection amongst Marxists flows from adopting the standpoint of the oppressed. In so doing, both Chimni and, more recently, Parfitt have objected to the ‘openness’ and ‘instability’ of the international legal argument that flows from the Koskenniemian indeterminacy thesis. Notably, they do so by invoking Koskenniemi’s own argument about the persistent operation of ‘structural bias’ in international law. Parfitt neatly summarises this objection as follows: [I]f international law really is normatively indeterminate – then how is it that certain communities always draw the short straw when it comes to the allocation and exercise of power and resources? How can we account, in other words, for what Koskenniemi, in a later modification of his work on indeterminacy, calls ‘structural bias’?107

In other words, international law might read as open, plastic or indeterminate in Geneva, London or New York, but not so much in Baghdad, Nauru or Cairo. It appears to me that these objections are correct so far as they are directed not to deconstruction and the indeterminacy thesis as such, but rather to the conclusions Kennedy and Koskenniemi drew from it. That is to say, the centring of the figure of the self-reflexive international lawyer who struggles to infuse international law with his progressive, 105

106

107

Koskenniemi, From Apology to Utopia; David W. Kennedy, ‘Theses About International Law Discourse’ (1980) 23 German Yearbook of International Law 353–91; David Kennedy, International Legal Structures (Baden-Baden: Nomos Verlagsgesellschaft 1987). ‘New Approaches to International Law: The Critical Scholarship of David Kennedy and Martti Koskenniemi’ in Chimni, International Law and World Order, pp. 246–357. Parfitt, The Process of International Legal Reproduction, p. 21.

.    & 



genuinely universal political commitments but does so conscious of the fact that there is no objective anchor nor a transcendental guarantee that the law ‘actually’ aligns with these ideals.108 In Miéville’s words: Faced with the question of how CLS can square its analysis with its proposals, [t]he reply lies in ‘reflexivity’. This recourse to ‘reflexivity’ . . . is a typical, and typically unsatisfactory, postmodern sleight of hand, a suggestion that an impossible manoeuvre can be made simply by being aware of its impossibility.109

A comprehensive re-articulation of the relationship between deconstruction and Marxism for the purposes of legal critique is still to be worked out, and it certainly exceeds the purposes of this book. For now, it suffices to say that, properly read, Derrida’s texts do not justify the overt Marxist hostility towards deconstruction nor the staunch anti-Marxism of some of Derrida’s disciples. Rather I hold, together with Terry Eagleton, that: ‘The statement that “there is nothing outside the text” is not to be taken, absurdly, to suggest that, for example, Jacques Derrida does not exist, but to deconstruct empiricist or metaphysical oppositions between discourse and some “brute” reality beyond it.’110 Furthermore, in Derrida’s own words ‘it is by touching solid structures, “material” institutions, and not merely discourses or significant representations, that deconstruction distinguishes itself from analysis or “criticism”.’111 My argument on the ‘standard of civilisation’ attempts to do exactly that. On the one hand, I will revisit the texts of international law ranging from textbooks and treaties to court rulings and memorials in order to show the inherent instability of ‘civilisation’ as a pattern of argument that constantly oscillates between two distinct poles: the ‘logic of improvement’ and the ‘logic of biology’. This is the first part of my argument, since I show that, in a truly Western fashion, a term that appears unitary (‘civilisation’) is, in fact, binary.112 My analysis proceeds to show that even though these two 108

109 110

111 112

Both the relevant literature and my personal experience suggest that that the tendency to reify the legal professional is not equally distributed amongst genders. Hence, my use of male pronouns here is deliberate. Miéville, Between Equal Rights, p. 58. Terry Eagleton, ‘Marxism, Structuralism and Post-Structuralism’ in Against the Grain: Selected Essays (London: Verso 1986) p. 95. Quoted in ibid. ‘Nature versus nurture, subject versus object, reason versus will, truth versus power, lordship versus servitude – whichever way you look at the world, if you look at it through Western eyes, it always comes out as an endless chain of binary oppositions. The West just likes that kind of thing. The same, of course, holds true for Western law.’



     

poles are in direct tension and represent fundamentally different visions on how to distribute rights and duties amongst international communities, as international legal debates evolve they also tend to collapse into each other. So far, so Derridean or, in Rasulov’s words: ‘No entity can ever keep at bay that analytical antithesis on whose ontological isolation its identity depends. Or, to put it slightly less abstractly, every Self carries within it an ineradicable trace of its external Other, which is to say that the Other is never really external and, moreover, never really an Other.’113 I could end my analysis here and still argue that my contribution is original enough. However, there is a further question that needs to be addressed: what are the political, economic and institutional structures that make possible the continuing presence, persuasiveness and even invisibility of this contradictory, unstable and overall unpleasant argumentative pattern. This monograph argues that it is the global spread and reproduction of capitalism as a fundamentally contradictory mode of production that carries both universalising and stratifying tendencies that makes the ‘standard of civilisation’ possible, plausible and even necessary. The contradictions of ‘civilisation’ do not necessarily constitute an open field of argumentative freedom for individual international lawyers, who can mobilise these contradictions to serve a supposedly unlimited range of opposing political projects. Rather, I suggest that we understand this indeterminacy as the historically contingent way in which the contradictions of capitalism as a global system of production and exchange are inscribed into international legal argumentation. In this context, indeterminacy can be understood as both restraining and enabling. It is restraining in so far as it sets the parameters and introduces inescapable contradictions and oscillations within the argumentation of international lawyers, who choose or are forced to articulate their arguments by reference to ‘civilisation’. As Chapter 4 of this monograph demonstrates, the lawyers who resisted South African apartheid and colonialism in South West Africa through the language of ‘civilisation’ occasionally ended up articulating arguments uncomfortably similar to those of the proud racists they opposed and vice versa.114 Indeterminacy feels like freedom until one starts arguing things one never expected or intended to.

113 114

Akbar Rasulov, ‘International Law and the Poststructuralist Challenge’ (2006) 19 Leiden Journal of International Law 799–827, 800. Ibid., 801. Chapter 4.

.    & 



That said, this indeterminacy provides argumentative opportunities for those who are not willing to confront the contradictions of global capitalism, but rather struggle for the relative improvement of the position of certain groups and individuals within this given framework. Indeed, the ‘mix’ between ‘improvement’ and ‘biology’ matters hugely when it comes to the everyday life, or even survival, of the most exploited and marginalised groups of this world. However, when lawyers choose to pursue these struggles through the language and argumentative structure of ‘civilisation’ they necessarily forego the possibility of challenging imperialism and capitalism at their core. On a theoretical level, my exposition of the indeterminacy of ‘civilisation’ does not show that international law is open to all and any politics. On the contrary, I argue that some fundamental arguments of the discipline are structured by the contradictions of global capitalism that both homogenises and also constantly (re)produces unequal development and polarisation. To the extent that ‘civilisation’ is a relatively open (or, relatively closed) argumentative terrain, it enables lawyers to make arguments that manipulate these contradictions while also compelling them to subject themselves to these same contradictions with all the political and argumentative costs that come with this internalisation of the ‘logic of improvement’ and the ‘logic of biology’. As I show in Chapter 2, for bourgeois international lawyers from non-Western communities the costs were certainly worth the trouble, since this internalisation of ‘improvement’ and ‘biology’ also fitted with their domestic interests of capitalist transformation and subjugation of ‘undisciplined’ populations.115 However, for radicals, the costs of entering the terrain of ‘civilisation’ have consistently been catastrophic. By treating international law as a specialised language articulated by a particular class of intellectuals, lawyers, within specific institutional structures, and civilisation as one argumentative pattern amongst many, I distance myself from Marxian attempts to locate the penultimate essence of law and link it to the penultimate essence of capitalism. When all is said and done, the Pashukanian reduction of ‘legal form’ to ‘commodity form’ does a poor job in explaining both international law and capitalism by ‘thingifying’ both. Instead, in the following pages, I construct a materialist explanation of one crucial element of international law, the ‘standard of civilisation’. 115

Chapter 2.



     

The theory I put forward about the structure, functions, and conditions of possibility of the ‘standard of civilisation’ is, thus, a finite one, in more than one way. As I already noted, I am not attempting to explain the entirety of the relationship between international law and capitalism, but rather the link between one type of argument and the very specific character of capitalism as a global and contradictory mode of production. The second level of finitude is that my scheme is not structured around or capable of explaining the outcome of concrete legal battles. The argumentative structure of ‘civilisation’ does not control the outcome of specific legal struggles, but it does control the range of arguments open to advocates, civil servants and judges. ‘Civilisation’ in this context is not the machine or some teleology that did, does and always will dictate the answer to concrete legal problems. Rather, it offers a range of contingently articulated answers, which, however, always remain within a particular framework – the oscillation between ‘improvement’ and ‘biology’ – as a matter of necessity. For example, when discussing the ‘unwilling or unable’ doctrine in Chapter 5, my argument is not that the emergence of the doctrine was inevitable.116 Rather, I am arguing that when international lawyers encountered the concrete problems of the war on terror (problems, of course, from the perspective of the United States and its allies), ‘civilisation’ offered argumentative tools and precedents that rendered arguments based on the ‘unwilling or unable’ doctrine intelligible, and even plausible. Relatedly, I am arguing that those sceptical of the doctrine would do well not to try to counter these civilisation arguments from within their logic because whatever tactical gains there might be will be outweighed by the perils of getting trapped within the argumentative conundrum of ‘civilisation’.

1.4 Overview of the Monograph The structure of this book reflects both the historical period examined and the structure of my argument. Therefore, the book is divided into four substantive chapters that proceed in chronological order. First, I examine the emergence of the standard of civilisation as a central argumentative pattern of nineteenth-century international law covering a period stretching from the late nineteenth century until the end of the First World War. Using the example of unequal treaties and nineteenth-

116

Chapter 5.

.    



century extraterritoriality, I show that debates about their reform and abolition were constantly oscillating between the demand or promise of equal rights and duties subject to comprehensive social, legal, political and economic reforms, and the ongoing postponement of this possibility based on ideas of immutable difference and inferiority. Crucially, I show that despite varying emphasis, non-Western international lawyers did not push against the standard of civilisation, but rather they adopted and manipulated it in order to further their national and class interests both domestically and internationally. Second, I examine the institutional life of the standard of civilisation as materialised in the League of Nations and more specifically in its openly colonial branch, the Mandate System. My engagement with the institutional life of ‘civilisation’ brings to light two important aspects of it: its potential for internal transformation, and its increasing reliance on social sciences, statistics and anthropological studies. In regard to the former, I show that as the capitalist state evolved to serve the evolving needs of capital accumulation so did the ‘logic of improvement’. Thereby, the dictates of this logic were not and – according to a materialist analysis – could not possibly be identical in 1878 and 2020. The fourth chapter revisits the South West Africa saga. Through a close reading of a wide range of legal documents submitted to and produced by the International Court of Justice, I reconstruct a moment when radical forces from the South attempted to argue ‘civilisation’ against the grain only to be trapped in the contradictions of their approach. Finally, I trace the survival and reconfiguration of the standard of civilisation and its persistence as a structure of argumentation in times of neoliberalism and the war on terror. Using the examples of the neoliberal reforms in the occupied Iraq as well as the ‘unwilling and unable’ doctrine, my final substantive chapter traces the recent reconfigurations of the capitalist state in the era of neoliberalism. Crucially, it tracks the survival of race, gender and sexuality as argumentative tropes even when the international legal order had nominally disavowed its racist, patriarchal and open imperialist past. Each of these chapters reflects in one way or another on both the distinctiveness and the interconnectedness of the two logics that constitute the ‘standard of civilisation’. The final chapter discusses the conclusions that we can draw from this new reading of ‘civilisation’ as well as the many questions that remain to be raised and answered in the process of constructing a material theory of international law. In the meanwhile, I can only hope that others will join me in my reading of international law’s materials.

2 The Standard of Civilisation in the Nineteenth Century Between the ‘Logic of Improvement’ and the ‘Logic of Biology’ Though this be madness, yet there is method in’t. William Shakespeare, Hamlet

Coincidence and historical irony are in the eye of the beholder. Still, there is a pleasant symmetry to the fact that 1873 was a year of paramount importance both for the discipline of international law and for European capitalism.1 In that year, while European capitalism was entering a period of crisis and stagnation, the Institut de Droit international was founded in Ghent. This chapter scrutinises international legal theory and practice in the nineteenth century with a view to understanding the links between the ‘standard of civilisation’ and the spread and consolidation of capitalist relations of production and exchange. The concept of ‘civilisation’, I argue, incorporated the profound contradictions of this symbiotic relationship between international law and the capitalist mode of production in ways that have not been fully appreciated. Focusing on the nineteenth century when ‘civilisation’ openly dominated the field of international law, I demonstrate that ‘civilisation’ is better understood as a particular way of arguing about the distribution of rights and duties between different political communities, or as a juridical style, if by ‘style’ we understand ‘a structured pattern of argumentative practice’.2

1

2

The irony did not escape Koskenniemi: ‘The great economic slump had started in Europe in the very year the Institut was established . . . As Bluntschli noted, in parts of civilised Europe the condition of workers and peasants was worse than that of the slaves of antiquity.’ Martti Koskenniemi, The Gentle Civilizer of Nations: The Rise and Fall of International Law 1870–1960 (Cambridge: Cambridge University Press 2004) p. 58. Justin Desautels-Stein, The Jurisprudence of Style: A Structuralist History of American Pragmatism and Liberal Legal Thought (Cambridge: Cambridge University Press 2018) p. 72.



     



As such, the ‘standard of civilisation’ oscillated between two logics. On the one hand, the ‘logic of improvement’ premised equal participation in international law subject to comprehensive internal reform in accordance with the imperatives of capitalist modernity. Within this register, the attributes of a civilised state were relatively fixed and easy to identify, if not necessarily to achieve. The legalisation of social affairs, the adoption of a legal system centred around notions of individualism, private property, and judicial independence, as well as the bureaucratisation and territorialisation of state power, were of paramount importance. On the other hand, the ‘logic of biology’ constantly negated such a possibility, perpetually confining non-Western political communities into a lesser position within the architecture of international law. In this register, legal, economic or cultural differences were attributed to unchangeable characteristics, and the gap between the West and ‘the rest’ was impossible to bridge. I argue that these two logics have co-existed in international legal argumentation since the nineteenth century, mapping the contradictions of imperialism as a specifically capitalist phenomenon of unequal and combined development that tends to generate both homogenisation and unevenness on a global scale. This chapter traces these two logics that ran through the ‘standard of civilisation’ since its emergence as a central juridical mechanism for the (asymmetrical) distribution rights and duties. I interrogate how nonWestern political communities were offered a horizon of equal participation in the realm of international law subject to capitalist transformation, as well as how international lawyers outside Europe leveraged this ‘logic of improvement’ both against Western imperialism and the domestic opponents of such projects of capitalist modernisation. This line of argument considered the equal participation of the non-Western world in the realm of international law to be both practically possible and normatively desirable, albeit not necessarily immediately achievable. However, the same publicists who offered this promise also indulged racialised, gendered, and infantilising imaginaries of non-Western polities. These tendencies were neither inconsequential for their overall legal argumentation nor can they be read out of their oeuvre as the embarrassing deviations of some isolated individuals. Rather, immutable hierarchy and inequality were at the heart of international legal argumentation. This ‘logic of biology’ negated the possibility of equal participation in international law and fixed the international legal order as necessarily uneven. To illustrate this oscillation between the two logics, I revisit both the writings of jurists and the practice of states, with a particular focus on



     

the ‘unequal treaties’ and their provisions concerning extraterritoriality in ‘semi-civilised’ states, such as China, Japan, the Ottoman Empire and Siam.3 Extraterritoriality was explicitly, consistently and repeatedly justified and challenged by reference to civilisational difference. Furthermore, fierce contestation and resistance by lawyers, politicians and mass movements outside the West forced some clarification on what was specifically required for a polity to be considered ‘civilised enough’ to have extraterritoriality abolished. The picture that emerges challenges the liberal faith in the civilising role of international law, highlighting its deep entanglement not only with capitalism, but also with racism and misogyny, showing how the two became intimately connected not just in imperial tactics, but in international legal argumentation.

2.1

‘A Science of Facts’: Ethnology, Comparison and Civilisation in Nineteenth-Century International Law

The declining authority of the Christian church(es), the stabilisation of a system of multiple (Western) nation-states and the gradual expansion of the state-form outside Europe, as well as the gradual revival of imperialism during the first decades of the nineteenth century and its transformation into a state-led project,4 posed significant difficulties for the universalist, explicitly Christian perceptions of the ‘law of nations’ that had emerged along with and justified the conquest of the Americas.5 As Jennifer Pitts has recently argued, the first half of the nineteenth century became a battlefield between different perceptions of international law. Positivism was not a self-evident solution to the above problems, but rather the comparatively most successful amongst several contestants.6 Schematically, this transition can be captured by the gradual replacement of Vattel by Wheaton as the primary authority of the 3

4

5

6

Due to linguistic limitations, my analysis relies primarily on French, English, and – to a limited extent – German materials as well as translations by others. Translations to English are my own, unless otherwise stated. In 1825, Britain dissolved the Levant Company and gradually assumed its extraterritorial jurisdiction in the Ottoman Empire. Thirty years later, the Government of India Act liquidated the British East India Company and transferred its powers to the Crown. Amongst many: Martti Koskenniemi, ‘Empire and International Law: The Real Spanish Contribution’ (2011) 61 University of Toronto Law Journal 1–36; Antony Anghie, ‘Francisco de Vitoria and the Colonial Origins of International Law’ (1996) 5 Social and Legal Studies 321–36. Jennifer Pitts, Boundaries of the International: Law and Empire (Cambridge MA: Harvard University Press 2018) p. 118.

. ‘   ’



field. The latter confidently pronounced that ‘[t]he public law, with slight exceptions, has always been, and still is, limited to the civilized and Christian people of Europe or those of European origins.’7 This was a radical departure from earlier understandings of interpolity juridical relations, and ‘civilisation’ provoked reaction both within and beyond the West. For example, Chen documents how Chinese officials juxtaposed a specifically Sinocentric universalism to Western efforts to exclude China from the protections of international law and to impose obligations to trade with them regardless of the socially destructive effects of opium.8 Nonetheless, the fact that Wheaton’s Elements of International Law was translated into Chinese in 1864 with great success meant that, gradually, proponents of radically different understandings of international law started using the language of statehood, sovereignty and civilisation to promote their interests in the international arena. Even though recent contributions to international scholarship have emphasised how semi-peripheral lawyers used, contested and eventually transformed the language of international law, the fact that this became the primary way of lawfully organising international affairs is mostly taken for granted and remains unproblematised. Becker Lorca, for example, has offered a comprehensive overview of the ways in which semi-peripheral lawyers challenged and had an impact on international law, without, however, registering that these interventions presupposed an abandonment of other, alternative forms of international normativity and ordering that had been in operation for centuries both in and beyond Europe.9 In my view, it is precisely this universalisation of particular international legal concepts that were heavily contested less than two hundred years ago that requires an explanation. If this new form of international law was not (explicitly) grounded on divine authority,10 where was its authority, truthfulness and bindingness 7

8

9

10

Henry Wheaton, Elements of International Law (A. C. Boyd ed., 3rd edn, London: Stevens and Sons Ltd 1889) p. 17. ‘Although Wheaton and others tried to racialize international law and ethics, Commissioner Lin and his colleagues assumed certain principles of justice, morality, and humanity to be universal, even though their notions of universality might be influenced by Sinocentrism as much as their Western counterparts were by Euro-Americentrism.’ Li Chen, Chinese Law in Imperial Eyes: Sovereignty, Justice, and Transcultural Politics (New York: Columbia University Press 2016) p. 210. See: Arnulf Becker Lorca, Mestizo International Law: A Global Intellectual History 18421933 (Cambridge: Cambridge University Press 2014). Not everyone is convinced that international law ever transitioned to secularism. Jennifer Beard has traced the theological origins of ‘development’ and Orford has argued that



     

derived from? Nineteenth-century international lawyers turned away from universal moral truths to factual assessments of different political communities as a way of authorising their intellectual construction. This turn to (sociological) facts as a way of grounding legal rights and duties brought about new ways of reasoning and grounding legal obligations. As I will further argue in Chapter 5, it was this profound transformation that initiated another oscillation that remains unresolved in international law: the oscillation between factual assessments and normative reasoning as a way of grounding international legal obligations.11 The influence of the ‘historical school’ of jurisprudence, as found notably in the works of Savigny, was crucial in this respect. As international lawyers reacted against the abstract universalism of Christian theology, they found in the works of Savigny a way of justifying the historical, geographical and civilisational specificity of their object of study. Westlake, for example, wrote that: ‘According to Savigny, “there may exist between different nations the same community of ideas which contributes to form the positive unwritten law (das positive Recht) of a particular nation. This community of ideas, founded upon a common origin and religious faith, constitutes international law as we see it existing amongst the Christian States of Europe”.’12 This turn to historical jurisprudence raised additional questions. A method was needed to determine the ideas, but also the social, cultural and economic specificities, of societies that came to be seen as different and unfamiliar. Scientific reason and the emerging ‘classificatory mania’13 of the nineteenth century provided a blueprint for governing the world in this period. International lawyers welcomed the emerging science of ethnology as the source of ‘raw material’ that they could use to develop normative systems. Lorimer understood ethnology, or the ‘science of races’, to be the most relevant discipline for international law of

11

12 13

international law ought to be understood as a fundamentally Protestant project: Jennifer L. Beard, The Political Economy of Desire: International Law, Development and the Nation State (Abingdon: Routledge 2007); Anne Orford, ‘International Law and the Making of the Modern State: Reflections on a Protestant Project’ (2009) 3(2) Sortuz: Oñati Journal of Emergent Socio-legal Studies 14–27. ‘International law has increasingly resorted to “evidence” or information to provide the solid foundation for resolving questions about the legitimacy of responses to statesponsored terrorism.’ Anne Orford, ‘The Destiny of International Law’ (2004) 17 Leiden Journal of International Law 441–76, 455. Wheaton, Elements of International Law, p. 21. Charles S. Maier, Leviathan 2.0: Inventing Modern Statehood (Cambridge MA: Belknap Press 2014) p. 197.

. ‘   ’



his time, and he singled out Peter Camper, James Prichard and Johann Blumenbach as pioneers whose work would form the backbone of comparative ethics and jurisprudence.14 Similarly, Bluntschli cited approvingly Prichard and Joseph A. de Gobineau, who bears the dubious honour of being the ‘father’ of ‘scientific racism’. Manifesting the influence of racial thinking on international lawyers, Bluntschli specifically lamented the fact that ‘[s]cience has too long neglected the important bearing of race on law and politics.’15 Westlake generally avoided such stark pronouncements, but he also placed considerable faith in ethnology as a guiding force for international law and politics. Writing about the ‘Balkan question’, Westlake remarked that the development of ethnology allowed intellectuals, including international lawyers to see different ethnic groups ‘as they are Bulgars, Serbs, Vlachs, Greeks, and Albanians, each with their characteristics and tendencies’ and therefore to tailor appropriate solutions for the region.16 This embrace of anthropology as a privileged partner in the collection of facts and the creation of knowledge about different societies also meant that international lawyers embraced its methodological choices, prejudices and ideological commitments. Of course, ethnology was not unanimous in its pronouncements. One notable debate concerned the question of whether different human races – the existence of which was increasingly taken for granted – belonged to different species or represented different evolutionary stages of the same species.17 The difference between the two approaches is certainly significant, as different national approaches to colonialism and imperialism were authorised depending on whether one chose the polygenic or the monogenic school of thought.18 What seemed, however, to be beyond doubt for international lawyers and other professionals of imperialism was that at that specific 14

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James Lorimer, The Institutes of the Law of Nations: A Treatise of the Jural Relations of Separate Political Communities (Edinburgh: William Blackwood and Sons 1883) pp. 93–4. Johann K. Bluntschli, The Theory of the State (3rd edn, Oxford: Clarendon Press 1919) p. 85. John Westlake, ‘The Balkan Question and International Law’ (1906) 60 The Nineteenth Century and After: A Monthly Review 889–95, 891. For an eloquent account of the distinction and its implications for international law and colonial policies, see: Mohammad Shahabuddin, Ethnicity and International Law: Histories, Politics and Practices (Cambridge: Cambridge University Press 2016) 43–8. Shahabuddin compares and contrasts the German and the French colonial models to illustrate the practical consequences of different ethnological ideas about ethnicity. Ibid., pp. 62–97.



     

moment in time humanity stood divided. Some peoples – or rather their white, male, middle-class or bourgeois representatives19 – had reached evolutionary maturity, while others stood (permanently or provisionally) at lower stages of human development. The modes of imperial governance might have been open to debate, but within this specific frame of thought, its appropriateness or even necessity seemed beyond doubt. Comparison and classification were essential methods to bring order to the amalgam of facts about different political communities and, therefore, to come up with legally binding prescriptions about their appropriate place within the ‘family of nations’. After all, as RolinJaequemyns noted: [T]his is a science of facts, in the same way as the sciences more particularly called natural. But the facts it is concerned with are of a different order in comparison to the phenomena the observation of which forms the basis of natural sciences properly so called. These are the facts of moral and historical life either of man or of humanity.20

It was in comparison to Western states but also to each other that China, Japan or different African communities were thought to have too much or not enough of something, be it laws, sexuality, violence or trade. Even before the initiation of a systematic comparative method, international lawyers compared laws, customs and political systems across space and time trying to determine their relative merits and, therefore, the appropriate extent of their rights and duties. When Japanese international lawyers, like Sakuye Takahashi, made the case for their country’s preparedness to be admitted as an equal member to the ‘family of civilised nations’ while juxtaposing their laws or their conduct of war to those of their neighbouring China, they were not simply politicking. Rather, they were operating within a particular framework of argumentation that rested heavily on comparison, and more specifically on comparison

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As Henrika Kuklick has shown, Victorian anthropologists also thought that women and the domestic working classes and, more broadly, the poor also stood at a lower evolutionary position in comparison to propertied men, although there were disagreements about the policy prescriptions flowing from these perceived evolutionary truths: Henrika Kuklick, The Savage Within: The Social History of British Anthropology, 1885–1945 (Cambridge: Cambridge University Press 1991) pp. 106–8. Gustave Rolin-Jaequemyns, ‘Les Principes Philosophiques du Droit International’ (1885) 17 Revue de Droit International et de Législation Comparée 517–60, 521.

. ‘   ’



geared towards creating and reproducing hierarchies and graded international legal personalities.21 No other concept encapsulated these ideas about the correspondence between law and a community’s relative development as clearly as that of ‘civilisation’. Even though ‘civilisation’ gained indisputable prominence within the discipline as a whole,22 the Scottish lawyer James Lorimer is commonly considered the ‘father’ of the concept, if for no other reason than that he articulated its content and hierarchy-creating functions in unequivocal terms.23 For him, humanity was divided into three distinct spheres: the civilised, the barbarian (semi-civilised) and the savage (uncivilised), each sphere representing different degrees of development of the ‘human race’.24 Of these three categories, only the first enjoyed full political status. Semi-civilised polities only enjoyed limited international legal personality, while ‘savage’ peoples were ‘purely human’, confined to the realm of nature and not to that of politics, and therefore enjoyed no political recognition under international law.25 This tripartite division became commonplace in the writings of nineteenth-century international lawyers, bringing together scholars of diverse political persuasions and national affiliations. In 1895, Lawrence defined international law as ‘[t]he rules which determine the conduct of the general body of civilized states in their dealings with one another.’26 He went on to distinguish between fully sovereign states at one end of the spectrum, the ‘dwarves of the central African forest’ at the other, and finally polities like Turkey, China or Japan that were somewhere in the 21

22

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25 26

On the question of differentiated international legal personality, see: Rose S. Parfitt, ‘Empire des Nègres Blancs: The Hybridity of International Personality and the Abyssinia Crisis of 1935–1936’ (2011) 24 Leiden Journal of International Law 849–72; Natasha G. Wheatley, ‘Spectral Legal Personality in Interwar International Law: On New Ways of Not Being a State’ (2017) 35 Law and History Review 753–87. ‘The existence of a distinction between the civilized and the uncivilized was so vehemently presupposed by positivist jurists, that the state of nature and therefore naturalism becomes epistemologically incoherent because it lacks this central distinction.’ Antony Anghie, Imperialism, Sovereignty and the Making of International Law (Cambridge: Cambridge University Press 2004) p. 55. Therefore, assertions that Lorimer was entirely out of synch with his contemporaries are unsustainable: Martti Koskenniemi, ‘Race, Hierarchy and International Law: Lorimer’s Legal Science’ (2016) 27 European Journal of International Law 415–29. James Lorimer, ‘La Doctrine de la Reconnaissance, Fondement du Droit International’ (1884)16 Revue de Droit International et de Législation Comparée 333–59, 335. Ibid. Thomas J. Lawrence, The Principles of International Law (London: Macmillan and Co 1895) p. 1.



     

middle with respect to the stage of their development and their engagement with and status under international law.27 The leading Italian jurist Pasquale Fiore explicitly mobilised the distinction to support the juridical right of civilised states to colonise the world: ‘Certainly, as a matter of principle, colonisation and colonial expansion cannot be questioned . . . civilised countries in order to find new outlets for their ever increasing activity, need to extend their present possessions and to occupy these parts of the earth which are not of any use to uncivilised peoples.’28 Similarly, Carlos Calvo, the Argentinian lawyer and father of the famous eponymous doctrine, not only adopted the tripartite distinction, but he drew specifically juridical conclusions from it. He argued that the extent of a country’s jurisdictional sovereignty depended on its civilisational advancement. Civilised states enjoyed full jurisdictional sovereignty as a matter of right, semi-civilised polities’ jurisdiction depended on their (unequal) treaties with the West, while barbarous peoples’ jurisdiction was beyond the pale of international law.29 Such was the gravitational pull of ‘civilisation’ that even relatively heterodox voices either questioned the particular ‘classification’ of specific states in the civilisational scale without questioning its basic structure or denounced the worst excesses of the ‘civilising mission’ while reaffirming not only its practical necessity but also its validity under international law.30 In fact, the discourse of civilisation became intrinsically linked with a professional sensibility that confined the ‘savage’ to the realm of humanity and occasionally protested against atrocity, while articulating legal justifications for the broader imperial project. In this imperial context, even these 27 28

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Ibid., pp. 58–9. Pasquale Fiore, International Law Codified and Its Legal Sanction (translated from the 5th Italian edn by Edwin M. Borchard, New York: Baker 1918) p. 46. Carlos Calvo, Le Droit International Théorique et Pratique (4th edn, Paris: Pedone 1887) vol. 1, p. 570. For an analysis of the historical specificities of nineteenth-century engagements with international law in Latin America, see: Liliana Obregón, ‘Completing Civilization: Creole Consciousness and International Law in Nineteenth-Century Latin America’ in Anne Orford (ed.), International Law and Its Others (Cambridge: Cambridge University Press 2006) 247–64. See: Joseph M. Hornung, ‘Civilisés et Barbares’ (1885) 17 Revue de Droit International et de Législation Comparée 447–70; Charles Salomon, L’Occupation des Territoires sans Maître. Etude de Droit International (Paris: A. Giard 1889). In this respect, the inclusion of Hornung and Salomon in the list of those sceptical of ‘civilisation’ requires a very generous reading of their work: Andrew Fitzmaurice, ‘Scepticism of the Civilizing Mission in International Law’ in Martti Koskenniemi, Walter Rech and Manuel Jiménez Fonseca (eds.), International Law and Empire: Historical Explorations (Oxford: Oxford University Press 2017) 358–84.

. ‘   ’



protestations against the worst outbursts of violence were, however, somewhat inconsistent. As King Leopold’s reign of terror over the Congo Free State unfolded, international lawyers either remained quiet or penned explicit apologies.31 Crucially, civilisation was difficult to achieve and easy to slip away. Even though Western polities were civilised, threats were omnipresent. Professional international lawyers positioned themselves as the vigilant guardians of this fragile construction. In their minds, they were the ones who possessed the professional knowledge, impartiality, and highmindedness required to judge if a polity had achieved civilised status and to identify possible threats. This posturing was in line with non-juridical usages of the word as well. Both in Europe and beyond, the male, literate upper middle classes claimed privileged access to the intricacies of civilisation and a ‘will to civilisation’ that would enable them to bring into its ambit women, Indigenous peoples, the labouring classes, and non-Western societies in general.32 After all, the Institut de Droit international aspired to be nothing less than an organ of the ‘legal conscience/consciousness of the civilised world’.33 It was from this privileged position that Henry Maine warned that ‘the state which disclaims the authority of international law places herself outside the circle of civilised nations’, having in mind not only the supposed lawlessness of the Orient but also what he saw as a worrying trend of disregard toward international law by English courts.34 The courts, of course, were not the biggest domestic threat to civilisation. Catholicism and mercantilism were identified by Fiore as ever-present threats to civilisation.35 Furthermore, both the moderate Bluntschli and the conservative Lorimer were adamant that working-class radicalism would eventually undermine civilisation at home: ‘[the working class] is essential to the safety and maintenance of the State, but it is constantly threatening its very existence.’36 31

32

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35 36

See: Edouard Descamps, L’Afrique Nouvelle: Essai sur l’État Civilisateur dans les Pays Neufs et sur la Fondation, l’Organisation et le Gouvernement de l’État Indépendant du Congo (Paris: Hachette 1903); Ernest Nys, The Independent State of the Congo and International Law (Brussels: J. Lebègue and c 1903). I borrow the ‘will to civilisation’ from Cristina M. Rojas, Civilization and Violence: Regimes of Representation in Nineteenth-Century Colombia (Minneapolis, MN: University of Minnesota Press 2001). Statute of the Institute of International Law (Ghent, 1873) art. 1. Henry S. Maine, International Law: The Whewell Lectures (London: John Murray 1888) p. 38. Fiore, International Law Codified, p. 6. Bluntschli, The Theory of the State, p. 191. ‘Agrarian or communistic outrages are not sources of law, even in cases in which they lead to more accurate definitions of the natural



     

Despite (or precisely because of ) the fragility of civilisation, both the pursuit of an intellectually sustainable discipline and the practicalities of imperialism raised the question of what the features of a civilised political community were. Responses were by no means uniform. A proper understanding of ‘civilisation’ in the writings of nineteenth-century lawyers requires that we abandon the effort to act as interpreters of the law, who are after the one true interpretation of a specific concept37 and become grammarians who seek to understand the patterns of international legal argumentation and their underlying premises instead.38 The sections that follow do precisely this.

2.2 Civilisational Oscillations: The International Legal Argument between the Logic of Biology and the Logic of Improvement This monograph is animated by the idea that the first generation of professional international lawyers initiated with their usage of the ‘standard of civilisation’ a particular way of arguing about the distribution of international rights and duties that outlived the explicit invocations of ‘civilisation’. This argumentative pattern oscillated between two poles. At one pole, adoption of the legal, institutional and political apparatus essential for the emergence and reproduction of the capitalist mode of production was posed as the essential precondition of full sovereign rights under international law. The case of extraterritoriality is illustrative here, to the extent that its abolition was repeatedly linked to legal reforms that would dismantle pre-capitalist forms of statehood and would protect private commerce and capitalist accumulation. Arguments in this direction considered the equal inclusion of non-Western societies in the realm

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right of persons, or of the limits of private property.’ Lorimer, ‘La Doctrine de la Reconnaissance’, 32. I attempted such an approach in earlier writings on the standard of civilisation: Ntina Tzouvala, ‘Civilisation’ in Sahib Singh and Jean d’Aspremont (eds.), Concepts for International Law: Contributions to Disciplinary Thought (Cheltenham: Edward Elgar 2019) 83–104. The paradigmatic work here is Koskenniemi’s From Apology to Utopia: ‘Structural linguistics explains meaning-generation by linking individual paroles to the determining langue. Each individual speech-act is understood as a transformation of some code in the underlying language. The aim is to make that code apparent. I shall treat international law in a similar way.’ Martti Koskenniemi, From Apology to Utopia: The Structure of International Legal Argument (Cambridge: Cambridge University Press 2005) p. 8.

.  



of international law both possible and desirable, and presented the required reforms as a self-evident path to moral and political improvement. However, this logic co-existed with its opposite: a logic of biology that assumed an unbridgeable gap between the West and ‘the rest’, who were consistently racialised, feminised and infantilised. In this line of argument, the international legal order was rightly and permanently hierarchical and any pretence of juridical equality was an offence against the natural state of things. Importantly, sliding from one argument to the other was enabled by the structure of each logic. The logic of improvement conceptualised and promoted the historically contingent form capitalist modernity had assumed in the West as the only morally acceptable state of being and equated any deviation from it with collective moral failure. Moreover, by positioning themselves as the global arbitrators of civilisation, Western lawyers and states alike drew a firm line between their own and other political communities and asserted a superior position that did not respond well to challenges.39 The demarcating line between temporary guardianship and permanent hierarchy was prone to disappearing. This discursive instability was further accentuated by the fact that discourses about race, gender or childhood remained fluid and malleable during this period, incorporating an ever-changing mix between biology and education.40 The sheer existence of ‘semi-civilised’ states and ‘relatively progressive races’ coupled with an evolutionary understanding of history and a rhetorical attachment to facts meant that it became intellectually difficult to sustain a permanent, unchallengeable hierarchy amongst different political communities even for the most racially minded international lawyers.

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Karuna Mantena has argued that challenges to British imperial rule in India, Jamaica and Ireland in the mid-nineteenth century steered outrage about the purportedly ungrateful and unreformable natives, prompting a shift away from the liberal civilising mission to indirect rule resting on a culturalist logic as the organising principle of the British Empire: Karuna Mantena, Alibis of Empire: Henry Maine and the Ends of Liberal Imperialism (Princeton, NJ: Princeton University Press 2010) p. 9. ‘Usage of the term “race” was highly imprecise, but it typically designated a combination of cultural markers, historical mythscapes, habits, shared language, cultural values and political ideals circumscribed by “whiteness”. It was simultaneously cultural and biological.’ Duncan Bell, ‘The Project for a New Anglo Century: Race, Space and Global Order’ in Reordering the World: Essays on Liberalism and Empire (Princeton, NJ/ Oxford: Princeton University Press 2016) 182–208, p. 184.



     

2.2.1 The Logic of Improvement and the Imperatives of Capitalist Modernity When lawyers articulated arguments in the register of ‘improvement’, they treated attainability as a central characteristic of ‘civilisation’. International lawyers of the time were generally optimistic. They argued that ‘uncivilised’ societies could progress towards ‘higher’ stages of development and, crucially, civilised peoples had a duty to monitor and enable this transition. Westlake was clear when he wrote: ‘civilisation has grown up by degrees, and populations have become included in it among whom it did not originate.’41 Alphonse Rivier was of the same opinion: ‘[o]ur community of nations is not a closed one. Just as it opened itself for Turkey, it will open itself for other states as soon as these have reached a level of spirituality comparable to ours.’42 Even Lorimer, whose contempt for Islam was uncompromising, begrudgingly admitted that ‘[h]ad Algeria come to respect the rights of life and property, its history would not have permanently deprived it of the right to recognition.’43 Gradually, the examples of Japan and the Ottoman Empire were mobilised to show that non-European, non-Christian powers were able to achieve ‘civilised’ status and become full members of international society. Indeed, in accordance with this line of argument, the Ottoman Empire was at least partially admitted to the ‘family of civilised nations’ in 1856,44 and in 1899 Japan was recognised as fully sovereign when extraterritoriality was abolished. Indeed, publicists understood Christianity, especially in its Protestant iteration, to be the source of universality, and (my words) secularism as juxtaposed with the superstition, particularism and fanaticism of other religions, especially Islam, which were seen as incapable of producing a genuinely universal and just system like international law. However, it was precisely because of this universality that international law could be argued to be open for adoption by other cultures. Lawrence observed that: 41

42 43 44

John Westlake, ‘The Equality and Independence of States’ in Lassa Oppenheim (ed.), The Collected Papers of John Westlake on Public International Law (Cambridge: Cambridge University Press 1914) 86–110, p. 104. Alphonse Rivier, Lehrbuch des Völkerrechts (Stuttgart: Elke 1889) p. 5. Lorimer, ‘La Doctrine de la Reconnaissance’, 160–1. ‘The conventional wisdom maintains that an explicit standard of “civilization” dates back to 1856, to the time when the Ottoman Empire is traditionally assumed to have been formally admitted as a “civilized” member of European society.’ Gerrit W. Gong, The Standard of Civilisation in International Society (Oxford: Clarendon Press 1984) p. 31.

.  



[W]e have not thought fit to follow the same example of some writers, and limit it still further to Christian states. It is quite true that modern International Law grew up among nations which professed Christianity, and that many of its chapters would have to be very differently written if Christian influences had been absent from their formation. But it is also true that more than one non-Christian state has adopted the European international code.45

The gradual adoption of the idioms of international law by non-Christian states was taken as a sign of its very superiority: ‘the more recent intercourse between the Christian nations of Europe and America and the Mohammedan and Pagan nations of Asia and Africa indicates a disposition, on the part of the latter, to renounce their peculiar international usages and adopt those of Christendom.’46 Crucially, this expansion of international law was not to be presumed, at least not when it came to non-Western states. Rather, its applicability was a matter of fact.47 When arguing within this register, international lawyers were intensely pragmatic about the characteristics of a civilised state. To be more accurate, they talked about a culturally specific and historically recent phenomenon, namely the modern capitalist state as it developed in Europe and the United States as a universal guarantor of morality and material prosperity, while offering (unsolicited) advice on how to replicate this model elsewhere. For example, in analysing the concept, Westlake wrote that: ‘We have nothing here to do with the mental or moral characters which distinguish the civilised from the uncivilised, nor even with the domestic or social habits, taking social in a narrow sense, which a traveller may remark.’48 Far from it, the existence of a centralised state that would protect activities such as trade was absolutely central in his account.49 Commenting precisely on this passage by Westlake, Ernest Nys, who held the chair of public international law at 45

46 47

48 49

Lawrence, The Principles of International Law, p. 5. Holland made a similar point: ‘There is, therefore, nothing in the character of its principles which need restrict its application to Nations professing the Christian faith. Its applicability is a question rather of Civilisation than of Creed.’ Thomas E. Holland, Lectures on International Law (London: Sweet & Maxwell 1933) p. 38. Wheaton, Elements of International Law, p. 21. ‘The full applicability of International Law to any other States is, I venture to assert, not to be presumed but to be proved, as it unquestionably in certain cases can be, e.g., in the case of Japan, where the extra-territorial jurisdictions, which were maintained in Turkey up to the War of 1914, were withdrawn in 1899.’ Holland, Lectures on International Law, p. 39. Westlake, ‘Equality and Independence of States’, 143. Ibid.



     

the University of Brussels and was subsequently nominated for a Nobel Peace Prize for his work at the Permanent Court of Arbitration, reaffirmed the importance of civilisation as one of the fundamental notions of international law and equated its spread with the exportation of European political institutions and juridical notions.50 Of all juridical constructions, Carlos Calvo particularly emphasised the sanctity of contracts as a cornerstone of civilisation and warned that ‘[t]he state that stops applying this rule is isolated from the general movement of civilisation and would soon return in a fatal slope to the state of barbarity of savage tribes.’51 Unsurprisingly, it was precisely semi-peripheral lawyers, who upon finding themselves on the disciplining end of ‘civilisation’ became keenly aware of what was needed in order to achieve civilised status. Kaneko Kentarō, the Japanese statesman who received an honorary doctorate from Harvard Law School for his role in the drafting of the first Japanese constitution and soon after became Minister of Justice, wrote that the only means for Japan to achieve civilised status and, therefore, put an end to extraterritoriality was ‘to elaborate a civil code as it happens in Europe and to make a single law, obligatory both for strangers and for the Japanese.’52 Within the register of the ‘logic of improvement’, arguments about civilisation revolved around the practical universalisation as well as the universal ethical validity of what were some core institutional and legal preconditions of the establishment and reproduction of the capitalist mode of production. Here, I put forward a new reading of the standard of civilisation, which understands it to be a method of juridifying and rationalising the ongoing confrontation with the ‘anti-capitalist cancer of the colonies’.53 Throughout the nineteenth century, a wide variety of juridical techniques were mobilised by settlers, colonial administrators and imperial bureaucrats in order to reconstruct the legal systems governing land, natural resources, animals, humans and their mutual interactions, and subject them to the rationalities of capitalist accumulation. As we will see below, the exportation of Western legal standards and institutions was not the only juridical means to this end. Nonetheless, its 50

51 52

53

Ernest Nys, ‘L’État et la Notion de l’État: Aperçu Historique’ (1901) 3 Revue de Droit International et de Législation Comparée 418–36, 429–30. Calvo, Le Droit International Théorique et Pratique, vol. 2, p. 213. Kaneko Kentarō, ‘Les Institutions Judiciaires du Japon’ (1893) 25 Revue de Droit International et de Législation Comparée 338–56, 350. Karl Marx, Capital: A Critique of Political Economy (first published 1867, translated by Ben Fowkes, London: Penguin Books 1992) vol. 1, p. 938.

.  



importance cannot be overstated and neither can the variety of juridical techniques employed: the erasure of Indigenous notions of property and the promotion of particular forms of private rights over land,54 extraterritoriality,55 and international arbitration for injuries suffered by foreign nationals56 were just some of the mechanisms deployed in order to universalise Western capitalist legal standards. These methods differed from one another and were deployed in different contexts. For example, while extraterritoriality, as we will see below, became the primary mode of juridical engagement with ‘semicivilised’ states, such as China, Siam or the Ottoman Empire, arbitration was the preferred mode of engagement with the newly founded republics of South America.57 The standard of civilisation was invariably invoked to justify and systematise such interventions. Indeed, Orford’s invitation to think about the ‘responsibility to protect’ as a way of putting ‘deeds into words’ (and not the other way round) has significant analytical purchase in regards to the ‘standard of civilisation’ too.58 When gravitating towards the ‘logic of improvement’, the standard of civilisation became a way of systematising and legitimising a wide range of juridical practices that sought to globalise the protection of property rights, the judicialisation of social relations, and the bureaucratic state that is separate from the economy and society, all justified with highly 54

55

56

57 58

Amongst many: Mahmood Mamdani, Citizen and Subject: Contemporary Africa and the Legacy of Late Colonialism (Princeton, NJ: Princeton University Press 1996) especially chapter 5; Brenna Bhandar, Colonial Lives of Property: Law, Land, and Racial Regimes of Ownership (Princeton, NJ: Princeton University Press 2018). For the centrality of legal and institutional reform as preconditions for the abolition of extraterritoriality, see: Turan Kayaoğlu, Legal Imperialism: Sovereignty and Extraterritoriality in Japan, the Ottoman Empire, and China (Cambridge: Cambridge University Press 2010); Ntina Tzouvala, ‘“And the Laws Are Rude, Crude and Uncertain”: Extraterritoriality and the Emergence of Territorialised Statehood in Siam’ in Daniel Margolies, Umut Özsu, Maïa Pal and Ntina Tzouvala (eds.), The Extraterritoriality of Law: History, Theory, Politics (Abingdon: Routledge 2019) 134–50. See: Kathryn Greenman, ‘Aliens in Latin America: Intervention, Arbitration and State Responsibility for Rebels’ (2018) 31 Leiden Journal of International Law 617–39, 636–8. On the articulation of competing conceptions of ‘civilisation’ in the proceedings of the mixed claims commissions, see: Allison Powers Useche, ‘The Standard of Civilization on Trial at the United States/Mexico Claims Commission 1923–1937’ (2016) 1 Jus Gentium: Journal of International Legal History 391–426. Greenman, ‘Aliens in Latin America’, 618. ‘[T]he significance of the responsibility to protect concept lies not in its capacity to transform promise into practice, but rather in its capacity to transform promise into practice, or deeds into words.’ Anne Orford, International Authority and the Responsibility to Protect (Cambridge: Cambridge University Press 2011) p. 2.



     

moralising references to civilisation. This interlinking between the ‘logic of improvement’ and the universalisation of institutions historically associated with the emergence, diffusion and reproduction of the capitalist mode of production becomes clearer if we examine the different reforms that were commonly associated with the achievement of civilised status. For example, the protection of certain rights and liberties was an essential precondition of conforming with this image of civilised life. One obvious link between this criterion and the capitalist mode of production is that the specific rights guaranteed, such as life, property, travel or freedom of commerce, were directly related to commercial activities, especially those of Western merchant capitalists. They provided for certain guarantees against arbitrary – but not necessarily against authoritarian – exercises of power, embodying the most traditional understanding of civil liberties. Put simply, for Western merchant capitalists to be able to operate abroad it was essential that some guarantees would be provided for their safety, primarily for their property rights and for the operational character of contracts. Coming to this debate from a different angle, Craven makes a similar observation regarding the essential guarantees needed for colonial trade to function smoothly. Trying to find a way out of the debate as to whether the Berlin Conference exclusively focused on facilitating colonial trade or led to the formalisation of colonialism,59 Craven points out that, regardless of the conscious plans of political elites of the time, some degree of formalisation was essential for colonial trade to flourish. Protection of trade-related rights was one important aspect of this formalisation trend. However, this emphasis on rights was linked to the establishment of the capitalist mode of production in ways more complicated than the direct facilitation of commercial activity. The existence of a specific form of legal, social and psychological subjectivity, individualism, is both a necessary precondition and an outcome of capitalism. In this process of individualisation of the social body, it is principally the form of rights, as entitlements held by individuals, that is deeply rooted in the emergence and establishment of capitalist relations of power. As Douzinas has pointed out, ‘the relationship between law and the subject is circular’.60 On the one hand, it is almost self-evident that the legal guarantee of a 59

60

Matthew Craven, ‘Between Law and History: The Berlin Conference of 1884-1885 and the Logic of Free Trade’ (2015) 3 London Review of International Law 31–59, 35. Costas Douzinas, The End of Human Rights (Oxford: Hart Publishing 2000) p. 233.

.  



right pre-supposes the existence of a subject to whom this right is guaranteed. On the other hand (and this is perhaps less obvious), ‘a legal subject, whether a human being or an artificial entity (a company or association, the state or a municipality), exists if the law recognises its ability to bear rights and duties.’61 A bodily monad, a person in the most neutral sense of the word, is not automatically an individual, in the sense of being a juridical and political subject. Rather, a series of social processes of interpellation and discipline are required for natural persons to perceive themselves as individuals and as legal subjects. Althusser has identified this process of subjectification as one of the main functions of (legal) ideology: I shall then suggest that ideology ‘acts’ or ‘functions’ in such a way that it ‘recruits’ subjects among the individuals (it recruits them all), or ‘transforms’ the individuals into subjects (it transforms them all) by that very precise operation which I have called interpellation or hailing, and which can be imagined along the lines of the most commonplace everyday police (or other) hailing: ‘Hey, you there!’62

One such technique was, I argue, the legalisation of individual rights as part of the process of attaining ‘civilised’ status under international law. Further, as Parfitt has argued in detail, these processes of interpellation through law were not centred only around individuals and their rights, but also concerned the state. In other words, only those political communities that had been successfully interpellated as modern, bureaucratic and juridically separate from society and economy, were deemed to be civilised and, therefore, full subjects of international law: ‘these new European states had interpellated, independently and willingly, as subjects of international law, thereby demonstrating their “rationality” (on European/Hegelian terms), their “reciprocating will” and their capacity for “self-government and mutual recognition”.’63 We are here confronted with what Frédéric Mégret has called the ‘specific statism of international law’, which ‘participated in a dogma the consequences of which is to delimit the possibilities of imagining judicial forms other than the

61 62

63

Ibid. Louis Althusser, ‘Ideology and Ideological State Apparatuses: Notes towards an Investigation’ in Lenin and Philosophy and Other Essays (New York: NYU Press, Monthly Review Press 2001) 85–126, p. 118. Rose Parfitt, The Process of International Legal Reproduction: Inequality, Historiography, Resistance (Cambridge: Cambridge University Press 2019) p. 146.



     

state’.64 Indeed, the impact of this delimitation would become obvious during decolonisation. Ernest Nys summarised a widely held conviction amongst professional international lawyers that de jure and de facto monopolisation of violence was essential for a political community to be considered a civilised state: ‘The modern State has drawn up a programme which in its main lines is almost everywhere the same. It has claimed the right to make war, and has put an end to the barbarous practices of private war.’65 Similarly, Westlake considered the creation of a centralised state to be both a legal requirement and a matter of practical necessity: ‘[i]f any fanatical admirer of savage life argued that the whites ought to be kept out, he would only be driven to the same conclusion by another route, for a government on the spot would be necessary to keep them out.’66 Furthermore, the requirement for state centralisation, bureaucratisation and monopolisation of legitimate violence linked to the achievement of civilised status sought to universalise the historically contingent coming-together of capital and the state in Europe. Even though the relationship between the state and capitalism remains contested within Marxian state and legal theory,67 here it suffices to say that according to the most persuasive, and least teleological, account this was a contingent encounter that brought together two processes that were evolving in parallel. As regular warfare pushed European feudal principalities towards increasing centralisation, the newly emergent states became dependant on taxation to finance their armies and everyday functions.68 In turn, the process of enclosures that unfolded in the countryside pushed newly landless peasants into wage labour under nascent forms of industrial capital.69 Given the state’s reliance on capital

64

65 66 67

68

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Frédéric Mégret, ‘L’Étatisme Spécifique de Droit International’ (2011) 24 Revue Québécoise de Droit International 105–29, 107. Nys, The Independent State of the Congo, p. 3. Westlake, ‘Equality and Independence of States’, 143. For example, Miéville’s iteration of the ‘commodity form’ theory of law is openly indifferent to the state as an analytical lens: China Miéville, ‘The Commodity-Form Theory of International Law: An Introduction’ (2004) 17 Leiden Journal of International Law 271–302. For an overview of this argument, see: Charles Tilly, Coercion, Capital, and European States, AD 990–1992 (Cambridge, MA/Oxford: Blackwell 1992). On the triangular relationship between landlords, peasants/workers and capitalists and the argument that the process of the enclosures benefited capitalists even though it was not conducted by them, see: William C. Roberts, ‘What Was Primitive Accumulation? Reconstructing the Origin of a Critical Concept’ (2017) European Journal of Political Theory.

.  



for the purposes of taxation in money, the state increasingly intervened with legal and punitive measures to make sure that the landless masses would become disciplined workers. Thus, this process of primitive accumulation brought together the state and capital in a historically contingent manner that corresponded to the peculiarities of Europe, which until then was a relatively poor and under-developed region at the edge of the great commercial networks of Asia. This contingency produced its own necessities, as the state assumed functions that became essential for the establishment and reproduction of the capitalist mode of production. The existence of a centralised, bureaucratic state, which is separate from society and enjoys a monopoly over the legitimate use of force, is intrinsic to the process of reproduction of the social relations of production. In turn, the existence of such a state became essential for the uniform application of laws necessary for the harmonious reproduction of capitalist relations of production. As Heinrich notes: ‘the state must be a discrete, independent force, since it has to compel all members of the society to recognize one another as private owners’.70 This separation should not be understood as a radical disassociation between the state and social conflict, but rather as the specific modality of the capitalist state’s ‘presence in the constitution and reproduction of the relations of production’.71 The origin of this separation is the depersonalisation of economic domination in the context of the capitalist mode of production. Direct producers are not directly subject to the owners of the means of production, unlike the personal bonds between the serfs and the princes or the slaves and their masters. Economic domination takes place in the seemingly neutral terrain of the market, where agents encounter each other as free and equal subjects selling commodities. Therefore, political and economic domination become analytically distinct in capitalism. In the context of international law, the equation of ‘civilised’ society with the centralised state gave the latter normative appeal and attractiveness, and further contributed to rendering the contingent necessary. Finally, the abolition of slavery was another principal condition for achieving ‘civilised’ status. Pursuant to an initiative of Lord Castlereagh, the Congress of Vienna issued a Declaration on the Abolition of the Slave

70

71

Michael Heinrich, An Introduction to the Three Volumes of Karl Marx’s Capital (New York: Monthly Review Press 2012) p. 204 (emphasis as in the original). Nicos Poulantzas, State, Power, Socialism (New York: Verso 2001) p. 7.



     

Trade, which stated that ‘the public voice, in all civilised countries, calls aloud for slavery’s prompt suppression’.72 In his effort to legitimise the European ‘civilising mission’ in Africa, and in particular the Congo Free State as a legal entity nominally dedicated to such a mission, Descamps painted a vivid image of African ‘savagery’, where ‘cannibalism, human sacrifices, manhunts and slavery’ featured prominently.73 In a similar vein, Nys identified ‘the suppression of servitude and slavery’ as an essential precondition of the emergence of the modern, civilised state.74 David Dudley Field, who was a staunch opponent of slavery in his native United States, centred the prohibition of slavery when discussing the ‘amelioration of the laws of war required by modern civilisation’,75 and also used ‘slavery’ as a blanket metaphor for intolerable political domination: ‘To allow a victorious army to subject the people of a country to a government which they detest, is to allow the conqueror to reduce a conquered people to a modified slavery.’76 Abolitionism was one of the first and most prominent humanitarian campaigns of the nineteenth century to assume international characteristics. The social and economic origins of this new humanitarian sensitivity were intensely debated in twentieth-century historiography. What came to be known as the ‘Haskell debate’ is a good example of the historiographical controversies surrounding the exact relationship between the emergence of capitalism as a dominant mode of production and abolitionism.77 That the question of humanitarian sensibility was specifically triggered by slavery and not, for example, by the appalling living conditions of the emerging working class of the time is of direct relevance here. Craven summarises the standard Marxian argument about the abolition of slavery as a logical precondition for the transition to capitalism as follows:

72

73 74 75

76 77

Wilhelm G. Grewe, The Epochs of International Law (Berlin: De Gruyter 2001) p. 554 (emphasis added). Descamps, L’Afrique Nouvelle, p. 3. Nys, ‘L’État et la Notion de l’État’, 605. ‘And it cannot be doubted that if a belligerent were to attempt reducing to personal slavery captives in war, the courts of the other belligerent, and the courts also of every civilised neutral, would declare the captives free whenever brought within their jurisdiction.’ David Dudley Field, ‘Amelioration of the Laws of War Required by Modern Civilisation’ (1888) 13 The Law Magazine and Review 109–22, 112. Ibid., p. 121. Thomas Bender (ed.), The Antislavery Debate: Capitalism and Abolitionism as a Problem in Historical Interpretation (Los Angeles: University of California Press 1992).

.  



[T]he concern for the problem of ‘slavery’ or for the well-being of the native populations [was] being driven, neither by a purely humanitarian idealism, nor by a cynical desire to justify colonial intervention, but by the underlying logic of producing free labour as the generative condition for the market economy.78

However, it is precisely in relation to the abolition of slavery and other forms of ‘unfree labour’ that we can see the argumentative pendulum of civilisation swinging the other way, embracing a rigid hierarchy grounded on supposedly natural, biological difference that was, therefore, impossible to transcend. The status of the United States as a civilised state was not questioned, despite the persistence of slavery in the southern states. Writing fifteen years before the outbreak of the US Civil War, Wheaton treated the United States as enjoying full international legal personality without much discussion. Although he discussed the implications of its federal character for international law, he did not raise any doubt about its civilised status, even though a bit less than half of the states practised slavery.79 In fact, the most outspoken advocates of the ‘logic of biology’ in the field condemned slavery when practised in Africa but were much more deferential when it involved the enslavement of black bodies by white masters and the incorporation of slave labour within the circuits of capitalist accumulation. Thus, while slavery was condemned by Lorimer as being a ‘bad custom’ exceptions were permitted ‘under very stringent regulations, as an educational institution for the benefit of the inferior races of mankind’.80 Bluntschli took this rationale a step further arguing that slavery in the United States was ‘less objectionable’ precisely because of the phenotype of the slave owners (white) and the slaves (black).81 Even after the First World War, the persistence of slavery was a problem when it came to Ethiopia’s admission to the

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Matthew Craven, ‘Colonialism and Domination’ in Bardo Fassbender and Anne Peters (eds.), The Oxford Handbook of the History of International Law (Oxford: Oxford University Press 2012) 863–90, p. 886. ‘But since all those powers, by which the international relations of these States are maintained with foreign States, in peace and in war, are expressly conferred by the constitution on the federal government, whilst the exercise of these powers by the several States is expressly prohibited, it is evident that the external sovereignty of the nation is exclusively vested in the Union.’ Wheaton, Elements of International Law, p. 95. Lorimer, The Institutes of the Law of Nations, p. 32. Bluntschli, The Theory of the State, p. 177.



     

League of Nations,82 but not in regard to the multiple forms of compulsory labour imposed by Western powers in their colonies. Open endorsements of slavery were admittedly exceptional amongst nineteenth-century international lawyers. However, the case of Haiti looms large over every effort to associate in an unambiguous manner nineteenth-century international law in general, and the standard of civilisation in particular, with the abolition of slavery.83 The French colony known as Saint-Domingue relied heavily on the labour of half a million black slaves, especially for the production of labour-intensive crops like sugar and coffee.84 Therefore, C. L. R. James emphasises the two-way relationship between Saint-Domingue and the French Revolution. Not only did the universalistic rhetoric of the Revolution sharpen tensions and inspire the ‘black Jacobins’ of the island to fight for emancipation and independence, but it was also precisely the massive profits derived from ‘racialised labour discipline, constituted and maintained by juridical relations, on both the domestic and international scale’85 that strengthened the French bourgeoisie and made the Revolution possible in the first place.86 In 1791, a slave rebellion erupted on the island. Even though it was not by far the first of its kind, it not only overthrew slavery but also led to the defeat of the French and the proclamation of the first independent black state in 1804. Obtaining recognition and establishing regular trade relations with the rest of the world turned out to be a challenge for the newly established state. France made recognition conditional upon the payment of 150 million francs as compensation for the loss of the slaveholders’ property. Therefore, the establishment of the first black state and its 82

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85 86

As Parfitt documents, fascist Italy exploited the fact that Ethiopia’s admission to the League was conditional upon the abolition of slavery in order to argue – with much greater success than it is usually assumed – that the persistence of slavery deprived Ethiopia of its status as a (civilised) state, and therefore the invasion was not unlawful under international law: Parfitt, The Process of International Legal Reproduction, pp. 296–314. For such an account, see: Jenny S. Martinez, The Slave Trade and the Origins of International Human Rights Law (New York: Oxford University Press 2011). Robert Knox, ‘Valuing Race? Stretched Marxism and the Logic of Imperialism’ (2016) 4 London Review of International Law 81–126, 116. For the interrelation between international law and racial capitalism in the case of Haiti, see also: Liliana Obregón, ‘Empire, Racial Capitalism and International Law: The Case of Manumitted Haiti and the Recognition Debt’ (2018) 31 Leiden Journal of International Law 597–615. Knox, ‘Valuing Race?’, 116. C. L. R. James, The Black Jacobins: Toussaint L’Ouverture and the San Domingo Revolution (2nd revised edn, New York: Vintage Books 1989) p. 47.

.  



recognition as a subject of international law became conditional upon the acceptance of ‘the legitimacy of racialised slave property by compensating for its loss’87 and on the reconstitution of relationships of economic domination and exploitation through indebtedness. As we will see in the next section, this legal sanctioning of racist violence and exploitation was far from an anomaly. Rather, the ‘logic of biology’ ran to the core of international legal argumentation, equating ‘civilisation’ with whiteness, heteronormative masculinity and adulthood.

2.2.2 The Logic of Biology: Hierarchy and Asymmetrical Development in International Legal Argument James Lorimer inadvertently summarised the oscillation that, I argue, runs through civilisation as a way of arguing about the distribution of rights and duties in international law: ‘The international question is, whether, in the presence of ethnical difference which for jural purposes we must regard as indelible, we are entitled to confine recognition to these branches of alien races which consent to separate themselves from the rest.’88 Lawyers arguing from the vantage point of civilisation registered this tension between supposedly indelible racial difference and social transformation worthy of recognition without being able to resolve it on an argumentative level. Such was the unity-in-tension, that Bluntschli argued that it was only the superior races who were aware of the unity of mankind, without seemingly finding this formulation paradoxical: The civilised States assume the unity of mankind and recognise a common human nature even in the lower races and tribes . . . at the same time, the diversity of races is of the highest importance for the State and for public law, for in the State men appear in an order, and order cannot be imagined without difference.89

Even though Fiore avoided the heavily charged language of Lorimer, he struggled with the same problem when he stated that: The natural difference between the white and coloured races cannot serve to establish a substantial difference in the legal condition of these races from a point of view of international law. Nevertheless, complete legal

87 88 89

Knox, ‘Valuing Race?’, 119. Lorimer, The Institutes of the Law of Nations, p. 98. Bluntschli, The Theory of the State, p. 81.



      equality must be, in fact, considered as limited to the states which admit the fundamental legal ideas that are indispensable to the establishment of the legal community among states.90

In this formulation, racial difference and the fundamental legal ideas of capitalist modernity are juxtaposed, but also mentioned in one breath and seen as intrinsically connected. Race as such was treated as an unchangeable historical and natural reality. Even when not considered sufficient to establish differential legal treatment in its own right, race was nonetheless closely associated with legal ideas, which could and should authorise juridical hierarchy and exclusion. Rolin-Jaequemyns denounced both the possibility and the desirability of legal equality between different political communities stating that the internal and external differences ‘between the professor of one of our universities in Europe and his contemporary, a citizen of some cannibalistic tribe in Australia’91 were even greater than the differences between a nineteenthcentury Englishman and ‘the Breton or Caledonian of Ceasar’s times’.92 Even the most optimistic accounts about the achievability of civilised status rested on the idea that at that moment non-Western political communities were both morally inferior and politically and economically backwards and that it was only through the stewardship and guidance of the West in general, and of Western international lawyers in particular, that they would achieve the necessary transformation in order to be considered civilised. This imaginary of the non-European world as inherently stationary and needing to be dragged into civilisation kicking and screaming naturally gravitated towards biological explanations of power relations. Within this context, invocations of racial, gendered and infantilising tropes were not just distasteful transgressions or individual eccentricities, but rather a way of justifying the imposition and monitoring of a wide range of juridical practices of domination and disciplining. Having spent pages denouncing the hypocrisy of the civilising mission and the atrocities committed in its name, Hornung nonetheless concluded that even though religion and race could not as such legitimise inequalities between states, the persistence of barbarous practices authorised civilised states to intervene, using force if need be, to restore order and humanity.93 90 91 92 93

Fiore, International Law Codified, p. 222. Rolin-Jaequemyns, ‘Les Principes Philosophiques du Droit International’, 526, 530. Ibid. Hornung, ‘Civilisés et Barbares’, 13.

.  



Within this mode of thinking the only competent guarantors of universality were ‘the civilised nations as a whole’.94 Even though civilisation was purportedly a matter of sociological fact and had to be carefully ascertained, in reality, race formed a straightforward way of establishing presumptions about it. White-majority societies were considered by default civilised and very serious transgressions were required for this presumption to be overturned. For the most conservative international lawyers, only a socialist revolution could bring about such a catastrophic historical reversal.95 In less explicitly reactionary fora, the presumption that equated whiteness with civilisation and both with fair and just legislation was easier to reverse, but it existed nonetheless.96 Conversely, racialised peoples were under constant scrutiny and had to prove their civilised status to white statesmen and lawyers, if they wanted to be ‘upgraded’. In this context, the (real or imagined) violence and oppressive practices of racialised people only served to confirm their inferior civilisational and, therefore, juridical position. However, condemnations of Western brutality interpellated the perpetrators precisely as superior both in civilisation and biology: ‘this feeling of human solidarity condemned violence against the lower peoples, even when is exercised in the name of civilization.’97 A crucial manifestation of this ‘logic of biology’ was that Western imperialism was treated as a natural force that there was no point in resisting. In many iterations of this argument, the brute fact of Western expansion was vested with moral significance: non-Western polities were given the option to either assimilate or perish, while both assimilation and physical destruction were seen as an irrefutable sign of their civilisational inferiority. Westlake unapologetically subscribed to the idea of manifest racial destiny as a justification of colonialism: ‘The inflow of the white race cannot be stopped where there is land to cultivate, ore to 94 95

96

97

Ibid., 18. Both in popular political discourse and in the writings of conservative jurists like Lorimer and Bluntschli, the Paris Commune emerged as the ultimate affront to (European) civilisation, Europe’s very own heart of darkness: ‘had the Commune triumphed, its principles would have justified, and no doubt would have led to its continuance, and to a renewal of the war.’ Lorimer, The Institutes of the Law of Nations, p. 132. Powers Useche has documented, for example, the successful efforts of Mexican international lawyers to reverse the presumption of civilisation in regard to the US penal system, which systematically exonerated the perpetrators of racialised violence against Mexican citizens, especially in Texas: Powers Useche, ‘The Standard of Civilization on Trial’, 395–6. Calvo, Le Droit International Théorique et Pratique, vol. 1, p. 410.



     

be mined, commerce to be developed, sport to enjoy, curiosity to be satisfied.’98 In his inaugural lectures in Cambridge, Henry Maine used the example of India to assert that ‘barbarous’ legal systems were ‘scanty’ and therefore, upon coming in contact with civilised, complete legal systems it was inevitable that they should borrow from them.99 In its most extreme variations, this logic of biology did not only authorise hierarchy or unequal rights, but went far beyond: ‘[t]he “red race” can offer no opposition to the advance of the white civilisation, and are crushed and destroyed by it,’ argued Bluntschli.100 This equation between civilisation, whiteness and productive economic activity, the taming of nature, and adventurous curiosity was at the core of juridical justifications of settler colonialism101 but resonated far beyond. As others have shown, this logic of biology established modes of arguing about human rights or criminal justice that were based on heavily racialised tropes and similar imaginaries are at the heart of legal doctrines that are operational to this day, such as the emergency doctrine.102 I will return to this point in Chapter 5 of this book when discussing the ‘unwilling or unable’ doctrine. For now, it is important to stress that even though racism was a crucial component of this ‘logic of biology’, it was not the only one. The distinction between men and women, considered to be binary, biological, stable and hierarchical, was used to comprehend and communicate the legal distinctions and relationships between civilised and uncivilised states. Indeed, talk about the ‘family of civilised nations’ was not just a superficial metaphor, nor did it only involve the infantilising of non-Western polities, even though it certainly did do so. Rather, civilised statehood was equated with

98 99 100 101

102

Westlake, ‘Equality and Independence of States’, 145. Maine, International Law, p. 18. Bluntschli, The Theory of the State, p. 83. ‘Those communities who lived as rational, productive economic actors, evidenced by particular forms of cultivation, were deemed to be proper subjects of law and history; those who did not were deemed to be in need of improvement as much as their waste lands were.’ Bhandar, Colonial Lives of Property, p. 8. Amongst many: Makau Mutua, ‘Savages, Victims, and Saviors: The Metaphor of Human Rights’ (2001) 42 Harvard International Law Journal 201–45; Robert Knox, ‘Civilizing Interventions? Race, War and International Law’ (2013) 26 Cambridge Review of International Affairs 111–32; Sujith Xavier and John Reynolds, ‘The Dark Corners of the World: International Criminal Law and the Global South’ (2016) 14 Journal of International Criminal Justice 959–83; John Reynolds, ‘Racialisation and States of Emergency’ in Empire, Emergency and International Law (Cambridge: Cambridge University Press 2017) 36–67.

.  



boundedness, rationality, self-control, potency and measured manifestations of strength. In other words, if the state was to be a (legal) person, that person was unquestionably masculine. Surveying the use of gendered tropes in nineteenth-century international law textbooks, O’Donoghue comments that: ‘[e]vident in these writings is the intermixing of civilisational views with gendered assumptions; in particular, a form of dualism, the civilised and the non-civilised mirroring the Western dichotomy of masculine and feminine.’103 Indeed, it was during the nineteenth century that the criteria of statehood that later found their way into Article 1 of the Montevideo Convention emerged to include a defined territory, a permanent population and, crucially, a government to rule over both people and places.104 Feminist legal scholars have argued that the idea of a unitary, bounded political community that is independent of its outside and in control of its interior is predicated on masculinist perceptions of subjectivity. During the nineteenth century, the gendered character of the civilised state and the international community as a whole was not something to be inferred by critics but was explicitly advocated for and celebrated by the men who formed the first generation of international lawyers. Indeed, the civilised state was understood to be complete, self-conscious, selfcontrolled and autonomous, just like the masculine subject. In Bluntschli’s words: ‘the state is humanity organised, but humanity as masculine, not as feminine.’105 Writing for the inaugural issue of the American Journal of International Law in 1907, Robert Lansing, who a decade later was the head of the US Commission to the Paris Peace Conference, confidently proclaimed that the recognition of the physical inferiority of women was shared amongst states, as was the conviction that ‘the possession of sovereignty is deemed today a masculine prerogative’.106 Non-Western political communities were considered to be either overly feminine, like China, or hyper-masculine, like Africa, and in any event, these two qualities seemed frequently to merge. Often, racialised and gendered tropes came together in ways that were difficult to 103

104

105 106

Aoife O’Donoghue, ‘“The Admixture of Feminine Weakness and Susceptibility”: Gendered Personifications of the State in International Law’ (2018) 19 Melbourne Journal of International Law 227–58, 242. For the centrality of the existence of a government in the definition of statehood, see: Parfitt, The Process of International Legal Reproduction, p. 33. Bluntschli, The Theory of the State, p. 32. Robert Lansing, ‘Notes on Sovereignty in a State’ (1907) 1 American Journal of International Law 105–28, 115.



     

disentangle, thereby evidencing the pervasive inclusiveness of this logic of biology: ‘Hot countries, on the other hand, produce indolence, only relieved by violent outburst of the passions . . . But the State, aiming at self-control and freedom, required active and manly qualities.’107 These were not simply rhetorical extravagances. By invoking the supposed natural, biological inferiority of women and feminised or hyper-masculine men, international lawyers sought to justify and legitimise a hierarchical international legal order and a wide range of oppressive practices. This becomes clearer if we take seriously the metaphor of the family of (civilised) nations. Indeed, Lorimer saw in the juridical relations between states the same inescapable, natural quality of ‘laws between husband and wife’.108 The idea of guardianship became an all-encompassing metaphor for imperial practices ranging from direct colonisation to protectorates, unequal treaties and later, trusteeship. Much like the male head of the nuclear family exercised guardianship over his wife and children, being the most competent interpreter of their interests and resorting to ‘tough love’ when necessary, Western states were the legal guardians of immature political communities. It was precisely at this point that the logic of biology slid towards the logic of improvement. If non-Western states were, indeed, children, the possibility of growing up could not be discounted, even by the most biologically minded jurists. Moreover, guardianship over women, although permanent, was not to be confused with the supposedly undignified domination of women purportedly exercised by ‘primitive’ or ‘barbarous’ societies. Rather, if this was to remain a discipline based on facts, and not irrational superstitions, good behaviour was to be rewarded. The promise carried by this line of thought was vague, and as far as Western international lawyers were concerned, this process of emancipation would take, optimistically, centuries. However, their nonWestern colleagues were much less patient. They had little time for the historicist ‘not yet’ that was articulated by the West whenever the logic of biology and the logic of improvement met, creating but also perpetually deferring the promise for equal rights under international law.109 The 107 108 109

Bluntschli, The Theory of the State, p. 226. Lorimer, The Institutes of the Law of Nations, p. 14. Dipesh Chakrabarty has famously argued that this ‘not yet’ was not only central to the discourse of the coloniser but also to a strand of thought which he characterises as ‘historicist’: ‘Historicism – and even the modern, European idea of history – one might say, came to non-European peoples in the nineteenth century as somebody’s way of saying “not yet” to somebody else.’ Dipesh Chakrabarty, Provincializing Europe:

.    



efforts of Chinese, Japanese and Ottoman international lawyers to have extraterritoriality abolished immediately, and not sometime in the distant future, offers a good example of this clash, to which I will turn shortly. However, even though non-Western international lawyers challenged the position of their own community within this logic of biology, they generally did not articulate a rejection of this logic as such, but they rather argued their case within it, and further appropriated it for their own purposes domestically and internationally. Liliana Obregón has, for example, documented the ways Creole international lawyers mobilised the vocabulary of savagery and civilisation, as well as the violent and geopolitical techniques it authorised, to suppress Indigenous peoples or their domestic working classes.110 This was not a Latin American peculiarity. In the Balkans, Greek international lawyers mobilised an imagined cultural, linguistic, and even biological continuity between the modern Greek state and ancient Greece, while the Ottoman Empire and, secondarily, the other Balkan states were barbarians, and had been so throughout history.111 This cautioning against projecting an anti-racist, and let alone an antibiological, commitment in the thought and practice of non-Western international lawyers of the nineteenth century is not to say that each and every lawyer placed the same emphasis on either pole of the oscillation I map here. Stark divisions existed both along national, but also ideological lines. In fact, as the next section will show, the legal struggle around extraterritoriality revolved precisely around a clash over whether jurisdiction in ‘semi-civilised’ states was to be determined in the terrain of the ‘logic of improvement’ or the ‘logic of biology’. It was through this confrontation that the terms of both improvement and biology were both clarified and revised.

2.3 The Stakes of Civilisation: Extraterritoriality between the Logic of Improvement and the Logic of Biology So far both my account and those of the nineteenth-century international lawyers I have been examining discuss civilisation in relation to juridical

110 111

Postcolonial Thought and Historical Difference (Princeton, NJ/Oxford: Princeton University Press 2000) p. 8. Obregón, ‘Completing Civilization’. Nicolas Saripolos, ‘La Question Gréco-Turque après l’Acte Final de la Conférence de Berlin’ (1881) 13 Revue de Droit International et de Législation Comparée 231–45.



     

equality, (graded) legal personality or (semi-)sovereignty. This approach is helpful and straightforward since it reflects the language actually used in classic international legal texts. It is, however, inadequate and might lead to confusion. This becomes clearer if we appreciate the fact that concepts like juridical equality, legal personality or sovereignty do not carry a stable, unitary, unchangeable meaning, but are better understood as bundles of rights, duties, privileges and immunities.112 Simply put, to say that semi-civilised states were semi-sovereign or that they occupied an unequal position within the international legal order does not tell us much about the specific juridical relations between such states and their ‘civilised’ peers, unless one provides a concrete elaboration of the specific rights, duties, privileges or immunities that were constitutive of ‘semisovereignty’. Moreover, even though it is undeniably the case that legal concepts travel through space and time (indeed, in liberal legal systems the claim that law is impersonal and universal is central to the legitimacy and operation of the legal system as a whole),113 these concepts do not travel unchanged, and, therefore, an unelaborated reference to them can raise more problems than it solves. Take, for example, the notion of state equality under international law. Nineteenth-century international lawyers held wildly different opinions about juridical equality. These opinions ranged from a blanket rejection of any suggestion of equality as delusional or hypocritical, as manifested in the work of the most conservative lawyers such as Lorimer, Nys or Bluntschli, to a programmatic acceptance of sovereign equality, while emptying it of any meaningful substantive meaning.114 For example, the liberal Westlake was adamant about the validity of the principle of sovereign equality but thought that the exclusion of Greece, which at the time was a sovereign state, from the 1878 Congress and Treaty of Berlin that redrew the map 112

113

114

I owe this formulation, of course, to Wesley N. Hohfeld, ‘Some Fundamental Legal Conceptions as Applied in Judicial Reasoning’ (1913) 23 Yale Law Journal 16–59. See also: Pierre Schlag, ‘How to Do Things with Hohfeld’ (2015) 78 Law and Contemporary Problems 185–234. For the problems of a strict contextualist method when applied to legal history and the ‘inherently genealogical’ character of the legal method, see: Anne Orford, ‘On International Legal Method’ (2013) 1 London Review of International Law 166–97. Gerry Simpson has, in fact, argued that it was not only conservative publicists, but the international legal system as a whole that has been intensely relaxed about the coexistence of unequal sovereigns: Gerry Simpson, Great Powers and Outlaw States: Unequal Sovereigns in the International Legal Order (Cambridge: Cambridge University Press 2004).

.    



of the Balkans only raised issues of political, and not legal, equality.115 Therefore, to say that the ‘standard of civilisation’ did or did not allow for equality under international law does not automatically elucidate the specific legal relations on the ground. Locating ‘civilisation’ in reference to these abstract concepts is nonetheless indispensable since it maps the debates of the time, as well as broader narratives and imaginaries of the discipline as a complete, coherent and just legal system.116 However, it cannot as such produce persuasive accounts of the specific ways in which the concept was mobilised to legitimise or challenge specific juridical relations. Rather, attentiveness to the particular legal techniques, doctrines or debates that were articulated, justified and contested through the language of ‘civilisation’ is required. In the course of the nineteenth and early twentieth centuries, no other legal debate was articulated so explicitly and consistently in terms of civilisational difference or created as much controversy as that of extraterritoriality. Indeed, Western (and, after 1899, Japanese) diplomats and lawyers justified the exemption of their nationals from the territorial jurisdiction of ‘semi-civilised’ states, like Japan, China, Siam and the Ottoman Empire by invoking the supposedly unbridgeable civilisational gaps between their own political communities and those of the ‘Orient’.117 Affirming territorial jurisdiction as the norm under the 115

116

117

‘No doubt all these arrangements were subsequently accepted by the states concerned . . . Still, when no such acceptances were thought to be even necessary to a declaration of the will of Europe on several matters, we can appreciate what political inequality is compatible in the European system with legal equality.’ Westlake, ‘Equality and Independence of States’, 101. For a landmark contribution, see: Robert M. Cover, ‘The Supreme Court, 1982 Term – Foreword: Nomos and Narrative’ (1983) 97(4) Harvard Law Review 4–68. For the ongoing importance of narrative for international law in general and the authorisation of intervention in particular, see: Anne Orford, ‘Embodying Internationalism: The Making of International Lawyers’ (1998) 18 Australian Yearbook of International Law 1–34. The literature on nineteenth-century extraterritoriality has been growing steadily during the last two decades: Eileen P. Scully, Bargaining with the State from Afar: American Citizenship in Treaty Port China, 1844–1942 (New York: Columbia University Press 2001); Richard S. Horowitz, ‘International Law and State Transformation in China, Siam, and the Ottoman Empire during the Nineteenth Century’ (2004) 15 Journal of World History 445–86; Kayaoğlu, Legal Imperialism; Umut Özsu, ‘The Ottoman Empire, the Origins of Extraterritoriality, and International Legal Theory’ in Anne Orford and Florian Hoffman (eds.), Oxford Handbook of the Theory of International Law (Oxford: Oxford University Press 2016) 123–37; Mai Taha, ‘Drinking Water by the Sea: Real and Unreal Property in the Mixed Courts of Egypt’ in Margolies et al., The Extraterritoriality of Law, 119–33.



     

international law of his time, Travers Twiss proceeded to point out that the ‘unequal treaties’ that vested Western polities with extraterritorial jurisdiction over their nationals in ‘semi-civilised’ states were ‘in the highest degree exceptional’ but nonetheless necessary. This was so since Islamic and Buddhist law did not afford equal rights to foreigners, and their legal systems were fundamentally different from Western ones, not distinguishing between law and morality.118 Similarly, Westlake observed that the laws, habits, family structures, literature and arts in Europe and America were sufficiently similar that ‘no one who has had a liberal education feels himself a stranger in the houses, schools, law courts, theatres, scarcely even in the churches, of another country’.119 This was due to sharing a common civilisation that was, however, absent from Asia. Therefore, Europeans and Americans residing there ‘would not feel safe under the local administration of justice which, even when they assumed of its integrity, could not have the machinery necessary for giving adequate protection to the unfamiliar interests arising out of a foreign civilisation.’120 The US Supreme Court also weighed in: The circuit court might have found an additional ground for not calling in question the legislation of Congress in the uniform practice of civilized governments for centuries to provide consular tribunals in other than Christian countries . . . down to the time of the formation of our government, of the fact that the establishment of such tribunals was among the most important subjects for treaty stipulations.121

The topic attracted such intense interest that Friedrich F. Martens chose to write his doctoral dissertation on the topic of consular jurisdiction.122 Such was his reliance on the standard of civilisation that Martens considered extraterritoriality to be not simply a right, but a duty, an indispensable part of the civilising mission or, as Teemu Ruskola pithily put it

118

119

120 121 122

Travers Twiss, The Law of Nations Considered as Independent Political Communities (Oxford: Oxford University Press 1861) p. 224. Westlake, ‘Equality and Independence of States’, 102. At the time, this anchoring of extraterritoriality to civilisation was a novel development that came to replace a messy legal landscape that marked earlier phases of European extraterritoriality in Asia. For an account of the transition, see: Kate Miles, ‘“Uneven Empires”: Extraterritoriality and the Early Trading Companies’ in Margolies et al., The Extraterritoriality of law, 87–103. Westlake, ‘Equality and Independence of States’. In Re Ross, 140 U.S. 453 (1891) (‘In Re Ross’). Andreas T. Müller, ‘Friedrich F. Martens on “The Office of Consul and Consular Jurisdiction in the East”’ (2014) 25 European Journal of International Law 871–91, 882.

.    



‘a kind of white lawyer’s burden’.123 Decades later, when a French and a Turkish ship collided on the high seas a few miles off Lesvos, Turkey insisted that it had jurisdiction to put the French captain to trial for manslaughter over the death of eight Turkish crewmen. The French challenge to this assertion touched a nerve in the young republic, which had only very recently succeeded in having extraterritoriality abolished. The legal battle over this case led to one of the most famous rulings of the Permanent Court of International Justice, and, more relevant to our analysis, indicated the ability of (the spectre of ) extraterritoriality to mobilise semi-peripheral states, which were determined to defend their newly earned jurisdiction.124 To return to the nineteenth century, the civilisation of ‘semi-civilised’ states was not simply different, the argument went, but markedly inferior. Their legal systems, which were understood to be the main benchmark of civilisational development, were not well-placed to protect the activities and life-worlds of Western capitalists. The codification and consistent enforcement of civil, commercial, bankruptcy and patent laws were, for example, singled out in 1926 by the Commission on Extraterritoriality in China as necessary preconditions for the abolition of the practice.125 This brings us back to the argumentative conundrum of ‘civilisation’. The ‘logic of improvement’ was at the heart of disciplinary arguments and state practice around extraterritoriality. As extraterritoriality became politically intolerable to the rulers and peoples of the subjected polities alike, semi-peripheral lawyers and diplomats pushed for its abolition.126 123

124

125

126

Teemu Ruskola, Legal Orientalism: China, the United States, and Modern Law (Cambridge, MA/London: Harvard University Press 2013) p. 151. For two historically conscious readings of SS Lotus, see: Umut Özsu, ‘De-Territorializing and Re-Territorializing Lotus: Sovereignty and Systematicity as Dialectical NationBuilding in Early Republican Turkey’ (2009) 22 Leiden Journal of International Law 29–49; Douglas Guilfoyle, ‘SS Lotus (France v Turkey) (1927)’ in Eirik Bjorge and Cameron Miles (eds.), Landmark Cases in Public International Law (Portland, OR: Hart Publishing 2017) 89–109. United States Department of State, ‘Report of the Commission on Extraterritoriality in China, Peking, September 16, 1926’ (Washington: Government Printing Press 1926) p. 107. It is worth pointing out that in the West domestic opposition to extraterritoriality either on anti-imperialist or legal grounds did exist, but remained politically marginal. For the United Kingdom see: Andrew Cobbing, ‘A Victorian Embarrassment: Consular Jurisdiction and the Evils of Extraterritoriality’ (2018) 40 The International History Review 273–91. For a contemporaneous example of such criticism see: Henry Stanley (ed.), The East and the West: Our Dealings with Our Neighbours: Essays by Different Hands (London: Hatchard and Co 1865).



     

In this struggle, both sides relied heavily on the logic of improvement that I sketched above, although with crucial differences both in regard to their assessment of facts and, more importantly, in regard to who was entitled to conduct this assessment. The basic idea was that extraterritoriality was an anomalous, temporary arrangement that would be lifted as soon as these countries became ‘fully civilised' by amending their legal, judicial and administrative systems to conform with the imperatives of capitalist modernity. Kayaoğlu has argued that this required comprehensive reforms on three axes: legal codification, centralisation of the court system, and consolidation of state law throughout state territory.127 Indeed, the above-mentioned Commission on Extraterritoriality in China offered a detailed account of both the formal legal system in China and what was understood to be the everyday operation of this legal system, which was purportedly impaired by state weakness, civil strife, warlord-ism and inadequate infrastructure, notably a lack of prisons and asylums for the mentally ill.128 Moreover, in an 1889 confidential note that recommended the continuation of extraterritoriality in Japan, the UK Foreign Office highlighted the lack of concrete assurances that all of Japan’s laws would conform with Western standards, as well as the lack of clarity about the reorganisation of the police and the function of the courts.129 In fact, it was the example of Japan, which succeeded in abolishing the practice in a mere decade after the Foreign Office’s above-mentioned objections, that served as the ultimate proof of the purchase of this ‘logic of improvement’. Even before the abolition of extraterritoriality in 1899, Japan was considered the ‘poster child’ for successful internal reform according to the imperatives of ‘civilisation’, which proved that decisive adoption of the institutions of capitalist modernity could lead to ‘complete’ territorial jurisdiction. Already in 1891, the US Supreme Court referred to the abolition of the practice as essentially a matter of time, reaffirming Japan’s progress: ‘It is true that the occasion for consular tribunals in Japan may hereafter be less than at present, as every year that country progresses in civilization and in the assimilation of its system of judicial procedure to that of Christian countries, as well as in the improvement of its penal statutes.’130 Time and again Western powers 127 128 129

130

Kayaoğlu, Legal Imperialism, p. 47. ‘Report of the Commission’, pp. 89–104. ‘Japanese Treaty Revision: Provisions for Abolition of Consular Jurisdiction’, 19 June 1889, FO 410/1310. In Re Ross.

.    



would point at Japan to show that the benefits of being faithful to the logic of improvement were tangible and to defend themselves against accusations of bias and bad faith in negotiation. Moreover, other semiperipheral lawyers would try to learn from Japan’s reform process and patterns of argumentation in order to achieve the same outcome. Lawyers of the semi-periphery relied heavily on this ‘logic of improvement’ in their arguments against extraterritoriality. Crucially, they did not contest the imperative of comprehensive domestic legal reform, which after all was also in the interests of emerging national bourgeoisies and state and legal elites. Rather, they tried to demonstrate the immense progress their countries had achieved towards this goal. Advancing the case of his employing state, Wolcott H. Pitkin, a Harvard-educated lawyer who succeeded Rolin-Jeaquemyns as a general adviser to the Kingdom of Siam, enumerated the great legal codification efforts undertaken by the country even without any firm assurances about the end of extraterritoriality. He further intimated that if such abolition was guaranteed this would speed up the relevant reforms.131 This was an important twist to the ‘logic of improvement’, which, however, maintained the core commitment to its imperatives. Accepting that the institutions of capitalist modernity were indeed desirable, if not inevitable, semiperipheral lawyers argued that it was precisely the institution of extraterritoriality that impeded this improvement. The argument was certainly plausible: the everyday operation of extraterritoriality meant that multiple overlapping if not antagonistic jurisdictions co-existed in the same space in ways that contradicted the demand that these polities transform themselves into centralised states with a monopoly over violence and legality. Indeed, Westerners and natives alike took advantage of this jurisdictional chaos and often literally got away with murder. Participants in the same offence faced drastically different penalties depending on their nationality, and many were even uncertain about the legal framework applicable to them. This was the main argument put forward, for example, by the Ottoman Empire’s Ali Paşa: The privileges acquired by the Europeans through the capitulations, undermine their own security and the development of their transactions by limiting the intervention of the local administration; since the jurisdiction, with which foreign agents protect their nationals, constitutes 131

Wolcott H. Pitkin, Siam’s Case for Revision of Obsolete Treaty Obligations, Admittedly Inapplicable to Present Conditions (New York: Despatch Printery and Bindery 1919) p. 19.



      a multiplicity of governments inside the government and, consequently, an impassable obstacle to all improvements.132

This argumentative move was common amongst those advocating for the abolition of extraterritoriality and involved two equally important claims. First, it conceded that comprehensive legal and administrative reform was both politically desirable and legally necessary for the termination of unequal treaties. Capitalist modernity emerged as the inescapable horizon of reform and sovereign status, and now even non-Western lawyers and diplomats publicly subscribed to its imperatives. Writing from within this ‘logic of improvement’ semi-peripheral lawyers vested legal reform and codification, and the adoption of the core institutions of capitalist modernity, with legal significance. It is, therefore, unsurprising that invocations of the doctrine of rebus sic stantibus, which allows for the unilateral termination of treaties in case of a fundamental change of circumstances, became a common argumentative move. Writing about the abolition of extraterritoriality in 1931, the Chinese lawyer Tseng YuHao devoted an extensive chapter to the doctrine. Examining the writings of Western, Japanese and Chinese scholars, as well as state practice, he advocated for the legal validity of the doctrine as well as for its applicability in the case of China’s unequal treaties.133 So profound and successful had China’s reform process been, the argument went, that the conditions that made extraterritoriality necessary or at least tolerable had been extinguished. Here came the second important aspect of this line of argument: in a decentralised legal system like international law, the right to decide whether the circumstances had changed dramatically and the attachment of legal consequences to such a factual change was not the prerogative of Western states and their lawyers. Rather, each state, and in this instance China, was legally entitled to perform such an assessment.134 Tseng was not writing in a vacuum. In 1926, the republican government of China communicated to Belgium its desire to renegotiate the 1865 Treaty of Amity, Commerce and Navigation, relying precisely on an affirmation of 132

133

134

Quoted in: Eliana Augusti, ‘From Capitulations to Unequal Treaties: The Matter of an Extraterritorial Jurisdiction in the Ottoman Empire’ (2011) 4 Journal of Civil Law Studies 285–307, 304. Yu-Hao Tseng, The Termination of Unequal Treaties in International Law: Studies in Comparative Jurisprudence and Conventional Law of Nations (Shanghai: The Commercial Press 1931) pp. 51–80. Ibid., p. 73.

.    



their moral and political and also legal right to determine when circumstances had changed so dramatically as to warrant such a renegotiation.135 When the request to negotiate failed, China unilaterally terminated the treaty. The case was brought by Belgium to the Permanent Court of International Justice but was eventually settled with the renegotiation of a new treaty, which did not abolish extraterritoriality. In terms of political tactics, it had become clear that cooperation was a more effective means for terminating the practice. Nonetheless, the jurisprudential significance of the argument remains: unequal treaties clashed with sovereign equality, a principle that China considered applicable to its legal relations with Western states and Japan. Moreover, China asserted its right to determine authoritatively both law and fact, and to assign juridical consequences to factual assessments even when those clashed with the assessments of Western and Japanese international lawyers. The novelty of the argument becomes evident if we consider that in 1889 the UK Foreign Office had objected to the abolition of extraterritoriality in Japan partly because Japan had not provided them with a comprehensive account of its laws so that Western powers could evaluate them and decide whether the standard of civilisation was met.136 In other words, the struggle against extraterritoriality was partly transformed into a struggle about who decides whether a polity is civilised or not. In this respect, the fight against extraterritoriality was conducted with arguments that ran counter to the ‘logic of biology’ as sketched above. Here, however, lies a significant qualification. This effort to diffuse the sites of authority within the international legal order was accompanied by an acceptance of the ‘logic of improvement’. As a consequence, the ‘logic of improvement’ started appearing like common sense, instead of a very particular Western tendency to universalise the institutions of capitalist modernity in the specific form that they had assumed in Europe and the United States. Ultimately, national bureaucratic and legal elites

135

136

‘During the long period which has lapsed since its conclusion so many momentous political, social, and commercial changes have taken place in both countries that, taking all circumstances into consideration, it is not only desirable, but also essential to the mutual interest of both parties concerned, to have the treaty revised and replaced by a new one to be mutually agreed upon.’ ‘Lettre du Ministre de Chine a Bruxelles au Ministre Des Affaires Étrangères de Belgique’, 16 April 1926, in ‘Memoire du Gouvernement Belge’, Denunciation of the Treaty of November 2nd, 1865, between China and Belgium (China v Belgium) (1927) PCIJ Series C no 16/1, p. 52. ‘Japanese Treaty Revision: Provisions for Abolition of Consular Jurisdiction’, 19 June 1889, FO 410/27.



     

outside the West were claiming their right to be the ‘the ideal personification of the total national capital’,137 the final guarantors of the reproduction of the conditions of capitalist production in their territory. Importantly, the above-described effort to pluralise the sites of authority in international law ran counter to the ‘logic of biology’ as directed against states like China, Japan or the Ottoman Empire. Perhaps more accurately, in the nineteenth century, the legal elites of these polities contested their place within this ‘logic of biology’ without necessarily confronting its core premises. Japan is the starkest example here, yet not the only one. Upon its admission to the realm of civilisation, Japan embarked on a project of imperial expansion, most notably against Korea and China. The language of civilisation acted as a rhetorical device that justified both violent and non-violent imperialist practices, including extraterritoriality.138 The Sino-Japanese War of 1894 was legitimised domestically and internationally as a clash between ‘civilisation and barbarism’, not least because Japan made a clear and public point of conducting hostilities in accordance with international law, in other words, of fighting as a civilised nation.139 In Shahabuddin’s words, Japanese scholars embarked on a mission of translation that mobilised civilisation as ‘a language of empire to reassert supremacy in the region.’140 Read somewhat pessimistically, Japan’s ascendance to civilised status did not fundamentally challenge the ‘logic of biology’, but rather added another power to the rank of its advocates. Tellingly, Fukuzawa Yukichi, an early proponent of comprehensive reform, a supporter of imperial expansion and an author of a treatise on civilisation, argued that Japan’s aim was precisely to distinguish itself from the rest of Asian nations and thereby maintains its independence.141

137

138

139

140

141

Friedrich Engels, Socialism: Utopian and Scientific (New York: Cosimo Classics 2008) p. 67. By the 1920s, the vast majority of foreigners under extraterritorial jurisdiction in China were, in fact, Japanese, especially those residing in Manchuria. In fact, Japan enlisted both Westlake and Holland to vouch for its civilised status as evidenced by its compliance with international law in the 1894 war: P. R. Anand, ‘Family of “Civilized” States and Japan: A Story of Humiliation, Assimilation, Defiance and Confrontation’ (2003) 5 Journal of the History of International Law 1–76, 28. Mohammad Shahabuddin, ‘The “Standard of Civilization” in International Law: Intellectual Perspectives from Pre-War Japan’ (2019) 32 Leiden Journal of International Law 13–32, 14. Susumu Yamauchi, ‘Civilisation and International Law in Japan during the Meiji Era (1862–1912)’ (1996) 24 Hitotsubashi Journal of Law and Politics 1–25, 7.

.    



To return to extraterritoriality, in Siam the practice turned out to be of central importance for the consolidation of the monarchy’s and the central state’s authority of the northern provinces of the country, which had historically been vassal states of the kingdom. Britain recognised the jurisdiction of Siam over Lanna, which previously had been at best contested between Siam and local rulers, subject to Britain’s oversight.142 This co-operative expansion of national jurisdiction was accompanied by the deployment of the language of civilisation in its more exclusionary variants: Lanna and its people were portrayed as the ‘heart of darkness’, a place with no civilisation, where violence and anarchy reigned supreme. In contrast, it was only through external intervention, in this case the combined efforts of Siam and Britain, that such a ‘backward’ region could achieve some relative progress.143 My aim here is not to replace a heroic narrative about the abolition of extraterritoriality with a negative one. Nor do I argue that nineteenthcentury international law or the standard of civilisation, in particular, emerged totally unchanged from this clash. My point is both a narrower and a broader one. This section aimed to demonstrate the stakes of ‘civilisation’ in international law. Far from being an unpleasant yet empty rhetorical vehicle,144 civilisation was mobilised to justify specific juridical practices, particularly extraterritoriality. As semi-peripheral international lawyers appropriated this language to contest these practices, they largely accepted its ‘logic of improvement’, elevating capitalist modernity into the sole horizon of political transformation. In the process, they challenged Western lawyers’ monopoly over the interpretation of the relevant laws and facts. Convergence over substance co-existed with divergence

142

143

144

For the role of extraterritoriality in consolidating territorial rule in Siam’s northern provinces, see Tzouvala, ‘“And the Laws Are Rude, Crude and Uncertain”’. On the International Court of Lanna, see: Akiko Iijima, ‘The “International Court” System in the Colonial History of Siam’ (2008) 5 Taiwan Journal of Southeast Asian Studies 31–64. For the racialisation of state discourse and rule in Thailand, see: Thongchai Winichakul, ‘The Others Within: Travel and Ethno-Spatial Differentiation of Siamese Subjects 1885–1910’ in Andrew Turton (ed.), Civility and Savagery: Social Identity in Tai States (Richmond Surrey: Curzon Press 2000) 38–62. Writing about the standard Koskenniemi falls back into an idea of indeterminacy as semantic ambivalence and not as reliance on contradictory premises, which leads him to conclude that ‘civilisation’ basically meant nothing. This point is so self-evidently correct as to be unhelpful, if it is taken to mean that it had no inherent, stable meaning outside the way it was used by international lawyers, and wrong if it is taken to mean that it had no role in legal argumentation and juridical techniques of the time. See: Koskenniemi, From Apology to Utopia, p. 135.



     

over the process in ways that created ongoing tensions at the heart of international law. On the one hand, non-Western international lawyers subscribed to the ‘logic of improvement’, wholeheartedly embracing the process of capitalist transformation. On the other, the same lawyers challenged the self-appointment of their Western colleagues as the sole arbiters of the civilising process. These tensions would re-emerge, particularly in the period of decolonisation, yet they already existed in embryonic form since the end of the nineteenth century. The question boils down to how we understand imperialism and its relationship with international law. If we understand imperialism as the transparent imposition of the will of one state over another, in which both states are understood as impenetrable unities and the interests of everyone under their jurisdiction are imagined to be homogeneous, these legal struggles were unambiguously anti-imperialist. If, rather, we understand imperialism as inextricably linked to the process of capitalist expansion and exploitation on a global scale, a process that involved tendencies of both homogenisation and differentiation, then the picture that emerges is a much more complicated and ambivalent one.

2.4 Conclusion To those who find my analysis persuasive so far, I suggest that five conclusions can be drawn as we move forward. First, approaching civilisation as an argumentative pattern the function of which needs to be decoded, instead of as a legal term that avails itself to a single correct interpretation, allows us to move away from the realm of legal technique into that of immanent critique. More importantly, this move will allow us to go beyond explicit invocations of the concept and understand the ways ‘civilisation’ shaped international legal argumentation even after its seeming demise, and it will allow us to do so in a systematic way. Indeed, in the following chapters, I will trace the transmission across time and space of this pattern of argumentation that was encapsulated by ‘civilisation’. This approach does not negate the possibility or the reality of profound transformation in international law. However, it does not uncritically accept the (comforting) narrative that there was a point in time, be it the interwar period or the aftermath of the Second World War, that marked the decisive demise of the standard of civilisation as evidenced by its declining (explicit) invocations.145 145

For a recent articulation of this argument, see: Becker Lorca, Mestizo International Law, pp. 246–58.

. 



Second, this approach to civilisation as an argumentative pattern admittedly diminishes national or ideological particularities in the articulation of arguments about ‘civilisation’. This is not to say that such differences did not exist. However, what is remarkable in nineteenth-century writings is that the oscillation can be traced in the writings of authors who otherwise differed substantially in regards to their ideologies and national commitments. Westlake, who was a liberal reformer and a supporter of women’s suffrage and workers’ education, and Bluntschli, who vehemently opposed women’s franchise, both oscillated between feminising non-Western political communities and therefore negating the potential of equal inclusion to the realm of international law, and arguing that a set package of legal reforms was all that was needed for a polity to achieve civilisation. This should not be taken to mean, however, that all authors emphasised either pole of the dyad equally, or that the relative emphasis placed on either pole did not broaden or narrow down the terrain of legal and political struggle. Unsurprisingly, as semi-peripheral (and later peripheral) lawyers became competent users of the language of international law, they relied heavily on the ‘logic of improvement’ in order to argue their country’s case. The legal struggles around the abolition of extraterritoriality, as sketched above, provide a fine example of this emphasis. Third, the particular oscillation between a ‘logic of improvement’ and a ‘logic of biology’ that was mapped above points towards a critical reworking of Anghie’s ground-breaking claim that in international law ‘the civilising mission was animated by . . . the question of “cultural difference”’.146 Indeed, there is merit in Miéville’s (somewhat over-dramatic) frustration with invocations of ‘othering’ in the work of Anghie: ‘On reading this, on the penultimate page of a powerful, genuinely original article which has thus-far avoided this modern-day banality, the heart sinks.’147 I suspect, however, that Miéville’s unwillingness to elaborate on this point leads to modern-day banalities of his own, in this instance a Marxian blanket rejection of whatever is labelled as ‘postmodern’. Instead, I reformulate Anghie’s claim in order to understand the inclusion–exclusion dynamics of international law in relation to the historically specific relationship between international law, global capitalism and imperialism. This is because many – if not all – legal systems through time and space have performed some function of ‘othering’ and 146 147

Anghie, Imperialism, Sovereignty and the Making of International Law, p. 3. China Miéville, Between Equal Rights: A Marxist Theory of International Law (London: Pluto Press 2006) p. 247.



     

ideas of civilisational superiority have not been unique to the West. This raises the question of what was special about the discursive system that came to be known as international law, especially if we want to avoid explanations hinging on ‘human nature’ or supposedly eternal repetitions of behavioural patterns. Here I argue that in the nineteenth century the difference was thought of either as specifically biological, and therefore unbridgeable, or as pertaining to ‘good government’, which was in turn equated with the core characteristics of the Western capitalist state: separation between the state and society, legal and institutional guarantees for private property, commercial activity and capitalist accumulation, individualism and legalisation of social affairs. Fourth, my account of ‘civilisation’ raises doubts about the rationalising force of liberal capitalism that gradually does away with supposedly archaic forms of hierarchy and oppression, such as racism or the patriarchy. Indeed, this argument can be found in different iterations both in liberal and Marxist accounts. In international law, in particular, the idea that (neo)liberal reform would bring about gender equality and eradicate ethnic conflict has consistently been a major authorising discourse behind imperial uses of force and comprehensive state-building projects. My analysis demonstrates that the oscillation between the two poles of the civilisational dyad stood, if not in a relationship of strict logical necessity, then at the very least in a condition of profound rhetorical and material entanglement. When the authority of Western international lawyers was challenged, or when liberal reform backfired, then recourse to the logic of biology provided explanation, order and legitimacy. Once the capitalist mode of production was equated with supposedly evident, transcendental moral truths – in order words, when it became the only way of attaining nothing less than civilisation – those who resisted its imperatives at home and abroad became aberrations: irrational, unproductive, lazy and violent. The fifth and final point concerns the common inference drawn from engagements with these patterns of inclusion and exclusion in international law, according to which inclusion is, simply put, good, while exclusion is bad.148 My analysis casts doubt on this assignment of valence not only by showing the interconnectedness of inclusion and exclusion, 148

‘The question is based on the (Eurocentric) assumption that being included is good (because international law is “good”) whereas exclusion needs to be condemned. But this cannot be right: the key question is not whether somebody is included or excluded but what “inclusion” and “exclusion” mean.’ Martti Koskenniemi, ‘Histories of International Law: Dealing with Eurocentrism’ (2011) 19 Rechtsgeschichte 152–76, 175.

. 



but also by shedding light on the fact that inclusion came with strings attached. Adopting the legal and political institutions that had enabled capitalist accumulation in the West became a precondition for the enjoyment of equal rights and duties under international law. Within this framework, the efforts of non-Western international lawyers of the period to achieve juridical equality for their states can be re-read as the initiatives of national bourgeoisies to position themselves within the landscape of imperialism, rather than as instances of unqualified commitment to human equality. To the extent that inclusion meant the adoption of the institutions of capitalist modernity, the dispossession of Indigenous peoples and others was not an unfortunate by-product of an otherwise virtuous strategy, but the two were intrinsically linked.

3 The Institutionalisation of Civilisation in the Interwar Period

The true nature of the international system under which we were living was not realized until it failed. Karl Polanyi (1944)1

The League of Nations (League) has been synonymous with failure and irrelevance, not least because of its gradual demise during the 1930s and its failure to prevent the Second World War.2 Nonetheless, in recent years, there has been a revival of interest in the interwar period and a reassessment of the legacy of its institution.3 Written with this revisionist 1

2

3

Karl Polanyi, The Great Transformation: The Political and Economic Origins of Our Time (first published 1944, Boston: Beacon Press 2001) p. 21. Accurate or not, this evaluation partly resulted from the League having positioned itself as the antithesis of war. On the discourses surrounding the rise of the League and their ongoing relevance for the law of international institutions, see: David Kennedy, ‘The Move to Institutions’ (1987) 8 Cardozo Law Review 841–988. Regarding the revival of historical interest and re-evaluation of the era, see: Erez Manela, The Wilsonian Moment: Self-Determination and the International Origins of Anticolonial Nationalism (New York: Oxford University Press 2007); Joy Damousi and Patricia O’Brien (eds.), League of Nations: Histories, Legacies and Impact (Melbourne: Melbourne University Press 2018). For a recent comprehensive work on the Permanent Mandates Commission, see: Susan Pedersen, The Guardians: The League of Nations and the Crisis of Empire (Oxford: Oxford University Press 2015). For the most comprehensive study of the A Mandates, see: Cyrus Schayegh and Andre Arsan (eds.), The Routledge Handbook of the History of the Middle East Mandates (London: Routledge 2015). For some reevaluations of the League that centre questions of international law, see: Antony Anghie, ‘Colonialism and the Birth of International Institutions: Sovereignty, Economy and the Mandate System of the League of Nations’ (2001–2002) 34 New York University Journal of International Law and Politics 513–633; Balakrishnan Rajagopal, ‘Laying the Groundwork: The Mandate System’ in International Law from Below: Development, Social Movements and Third World Resistance (Cambridge: Cambridge University Press 2003) 50–72; Rose Parfitt, ‘Empire des Nègres Blancs: The Hybridity of International Personality and the Abyssinia Crisis of 1935–36’ (2011) 24 Leiden Journal of International Law 849–72; Natasha Wheatley, ‘Mandatory Interpretation: Legal Hermeneutics and the New International Order in Arab and Jewish Petitions to the League of Nations’ (2015) 227 Past & Present 205–48; Rose Parfitt, The Process of International Legal Reproduction: Inequality,



   



sensibility in mind, this chapter re-evaluates the functions and legacy of the ‘colonial’ branch of the League, the Mandate System, and situates it within my broader argument about ‘civilisation’ as an argumentative pattern about the distribution of right and duties, which has been and remains riddled with structured contradictions. More specifically, I show that the Mandate System both inherited and transformed the ‘standard of civilisation’ in crucial ways. In so doing, it paved the way for the rhetorical marginalisation of ‘civilisation’ as an explicit legal standard and its transmutation into an undercurrent of international legal argumentation that went on to manifest itself in manifold ways in the context of different institutions and legal fields. This transformation was enabled by the unfolding of the argumentative conundrum between ‘improvement’ and ‘biology’ within an institutional context, which led to its anchoring in a number of governance practices including surveys, statistics gathering, reporting, standard-setting and evaluations. In this process, the emotive and high-minded language of ‘civilisation’ was increasingly marginalised, and supposedly neutral and technical methods were put in place in order to establish and monitor the progress of nonWestern political communities towards capitalist modernity. The establishment of a soft system of international supervision performed significant functions for the international system, including compromising between different versions of imperialism, offering imperial powers renewed rationalisations for their colonial adventures, and constituting a forum for limited forms of contestation. In this process, the deep-seated legalism of the Permanent Mandates Commission (PMC) led to the mobilisation of well-established argumentative patterns. Notably, the PMC was confronted with the question of the termination of the Iraq Mandate under its aegis. In the process, it had to determine what characteristics and reforms would suffice for a political community to be emancipated from the Mandate System. The reforms and characteristics singled out bore significant similarities to those linked to the abolition of extraterritoriality with the notable addition of a loose conception of welfarism.4 In other words, the ‘logic of improvement’ ran

4

Historiography, Resistance (Cambridge: Cambridge University Press 2019); Ali Hammoudi, ‘The Pomegranate Tree Has Smothered Me’: International Law, Imperialism and Labour Struggle in Iraq, 1917–1960 (PhD Thesis, York University 2018). For the most comprehensive study of welfarism and international law to date, see: Emmanuelle Jouannet, The Liberal-Welfarist Law of Nations: A History of International Law (translated by Christopher Sutcliffe, Cambridge: Cambridge University Press 2012).



   

through the work of the PMC, while at the same time this very work modified it in important ways. The ‘ideal’ capitalist state has been anything but a static, monolithic entity throughout time. International law has registered these transformations, since the standards that political communities have had to conform with in order to get equal rights and privileges under international law have been evolving over time. In this instance, the rise of welfarism as a response to labour militancy, to the inherent contradictions of capitalist economies, and as a way of legitimising the exercise of state power meant that both the mandatory powers and the new states that arose from the mandate had to conform – at least rhetorically – with some core imperatives of the welfare state. At the same time, permanent inequality was taken as a given. It is a matter of well-established historical record that the British pushed for the emancipation of Iraq with the intention of maintaining their economic and political domination over a nominally independent state without international supervision and with lower costs for the state budget.5 What is of importance for international lawyers is that the ‘standard of civilisation’ offered a useful rhetorical tool for justifying publicly this strategic choice. Based on the premise that some political communities were not ready to face the complicated conditions of the modern world and, more importantly, putting into place an administrative structure that presupposed that it was only through the (often violent) guidance of their superiors that such a goal could be achieved, the Mandate System perpetuated the ‘logic of biology’ that confined some political communities to a lesser position within international law. This perpetuation of the ‘logic of biology’ enabled the British to overcome objections about Iraq not being ready for independence by claiming that it was not necessary or even possible for Iraq to become identical to ‘proper’ Western states, but rather it sufficed for it to reach the level of development and functionality of states such as Greece, China or Portugal.6

5

6

British officials were not particularly coy about admitting this, especially when addressing domestic audiences: ‘We have fulfilled our obligations to the League, our duty to the people for whom we were appointed as a trustee, and, we have, to come nearer home, succeeded in reducing to nil British commitments in Iraq, except those which we want in our own interests.’ Nigel Davidson, ‘The Termination of the Iraq Mandate’ (1933) 12 International Affairs 60–78, 76. See: Usha Natarajan, ‘Creating and Recreating Iraq: Legacies of the Mandate System in Contemporary Understandings of Third World Sovereignty’ (2011) 24 Leiden Journal of International Law 799–822, 810.

.       



In this chapter, I first focus on the political and ideological climate of the time in the aftermath of the First World War, which rendered direct annexations impracticable and pointed towards the need for some form of welfarism both at home and abroad in order to sustain the capitalist mode of production. The specificities of the Mandate System will then be described and situated within this broader political climate. Initially emerging as a compromise between different Western powers (mainly the United States, Britain and France) on how to manage the territories of the powers defeated in the First World War, the system acquired its own dynamics, especially through the PMC. The function of the PMC and its focus on economic development, free trade, free labour and welfarism will be the focal point of the second part of this chapter. My argument is that the PMC – and more broadly the Mandate System – oscillated between continuity and novelty in the way they arranged the relationship between international law, imperialism and capitalism.

3.1 The Beginning of the End for Formal Empires: Internationalism, Socialism and the Rise of Nationalism in the Semi-Periphery To fully comprehend the origins and character of this rearrangement, we need to appreciate the epoch-making political shifts that were occurring at the time of the Mandate System’s promulgation. The Mandate System emerged as a solution to the problem of the territories that Germany and the Ottoman Empire lost after their defeat in the First World War. Its historical novelty lies in the fact that the old recipe of the partition of these territories among the victors and their annexation did not appear as the only and indisputable solution to this problem, even though this was consistently advocated by France.7 The reasons for this evolution are manifold, but at least three merit closer attention. First, the United States, which had emerged as a major global power, objected to these plans, formally opposing annexationism and overt imperialism, or at least the

7

‘As the Covenant would have prevented France from levying troops in the mandates, direct annexation of former German territories was clearly preferred. A compromise was eventually found which allowed France to levy troops in her mandates in case of war, but such an attitude raised some doubts as to French intentions and willingness to follow the principles of the Covenant.’ Veronique Dimier, ‘On Good Colonial Government: Lessons from the League of Nations’ (2004) 18 Global Society 279–99, 283.



   

way the ‘old’ European powers practised them.8 Already in early 1917, Wilson had proclaimed that: ‘no right anywhere exists to hand peoples about from sovereignty to sovereignty as if they were property’.9 Second, the 1917 revolution in Russia and the fierce anti-imperialist rhetoric of the Bolsheviks provoked fears of ‘contamination’ and the spread of communism. Finally, the emergence of anti-colonialist, nationalist movements, both in what were going to be the mandated territories, and more generally, in colonies and protectorates, challenged the legitimacy and practicability of formal empire.10 The original proposal for a scheme of international tutelage belonged to Jan Smuts, the Prime Minister of the Union of South Africa. However, according to him, the system would apply to the former territories of the Ottoman Empire and Eastern Europe and not to Africa or the Pacific.11 In this respect, the role of the United States and President Wilson personally in the emergence of the Mandate System is indisputable. The United States’s promises of ‘a peace of a different kind’ and the general attitude of Britain’s Lloyd George against outright annexations led to the extension and modification of the system. The plan President Wilson first submitted drew from the legacy of theories of international protection and tutelage.12 Writing during the interwar period, Norman Bentwich also drew from this legacy of protection while being careful to maintain the distinction between it and the Mandate System and, by consequence, emphasise the latter’s novelty: The imperial policy of the nineteenth century decided the idea of the protecting State . . . and the idealistic policy of the peace-making period, i.e. the policy which inspired the Covenant of the League of Nations, has

8

9

10

11

12

For a recent reassessment that emphasises the United States’ contradictory relationship to territorial empire, see: Daniel Immerwahr, How to Hide an Empire: A History of the Greater United States (New York: Farrar, Straus and Giroux 2019). Woodrow Wilson, ‘Peace without Victory’ (Address to the US Senate, 22 January 1917) quoted in Manela, The Wilsonian Moment, p. 24. Hammoudi has provided a powerful account of the role of labour struggles in Iraq as the primary motor of anti-imperialism: Hammoudi, ‘The Pomegranate Tree Has Smothered Me’, pp. 51–74. Quincy Wright, Mandates under the League of Nations (first published 1932, New York: Greenwood Press 1968) p. 33. For a general overview of the initial proposal, see: Jan C. Smuts, ‘The League of Nations: A Practical Suggestion’, reprinted in David H. Miller, The Drafting of the Covenant (first published 1928, New York: G. P. Putnam’s Sons 1971). ‘Ideas of imperial tutelage or trusteeship had a long genealogy, with the history of British anti-slavery cited as evidence of the Empire’s role in generalizing humanitarian norms.’ Pedersen, The Guardians, p. 24.

.       



devised the notion of the guardian State . . . The difference between the protector and the guardian is that the former obtains rights over the population and against other Powers; the latter assumes obligations towards the population and towards the Society of Nations.13

Based on these ideas, Wilson proposed a system of direct international administration, whereby the sovereignty over these territories would actually reside with the League.14 That said, the influence of the United States is not to be overstated, especially given that by the final stages of the negotiations for the Mandate System, it had become evident that Wilson’s influence would not suffice for the United States to join the League. The influence of present absentees did not end with Wilson. Even as Soviet Russia sank into civil unrest and chaos, the challenge posed by the early actions and proclamations of the Bolsheviks should not be underestimated. After all, it was Lenin who in 1914 put forward the idea of national self-determination,15 without limiting it to European peoples as Wilson did.16 Moreover, like Wilson, the Bolsheviks ‘blamed secret diplomacy and the old elites for the war, but they went further than him in breaking with diplomatic protocol, denouncing past treaties, publishing secret documents, and giving accounts of Trotsky’s negotiations with the Germans to reporters as they happened’.17 Moreover, as Grovogui observed, the October Revolution ‘directly challenged notions 13

14

15

16

17

Norman Bentwich, ‘Mandated Territories: Palestine and Mesopotamia’ (1921–1922) 2 British Yearbook of International Law 48–56, 49. ‘Any authority, control or administration which may be necessary in respect of these peoples or territories other than their own self-determined and self-organized autonomy shall be the exclusive function of and shall be vested in the League of Nations and exercised or undertaken by or on behalf of it.’ ‘Wilson’s Second Draft or First Paris Draft’ (10 January 1919) reprinted in Miller, The Drafting of the Covenant, 88. See: Vladimir I. Lenin, The Right of Nations to Self-Determination (first published in 1914, Forest Grove, OR: The University Press of the Pacific 2004). For an overview of Marxists’ stance towards self-determination and international law during the twentieth century, see: Bill Bowring, ‘Positivism versus Self-Determination: The Contradictions of Soviet International Law’ in Susan Marks (ed.), International Law on the Left: Re-examining Marxist Legacies (Cambridge: Cambridge University Press 2008) 133–68. For an overview of the Bolshevik theory of imperialism and self-determination and its ongoing legacies for international law, see: Robert Knox and Ntina Tzouvala, ‘Looking Eastwards: The Bolshevik Theory of Imperialism and International Law’ in Anne Orford, Kathryn Greenman, Anna Saunders and Ntina Tzouvala (eds.), Revolutions in International Law: The Legacies of 1917 (forthcoming, Cambridge University Press). Mark Mazower, Governing the World: The History of an Idea (New York: Penguin 2012) p. 126.



   

of legitimacy in the modern state’.18 Especially during the first decade of the new regime, the fear of the spread of the revolution was vivid and it posed constraints on the manoeuvres available to colonial powers, since the Soviets would rhetorically and, to a degree, practically, denounce imperialism. This brings us to the last factor that rendered imperial annexation impracticable: local resistance. In the aftermath of the war, the antiimperial sentiment was on the rise across the colonised world. The participation of colonised peoples in the war had given them aspirations for self-government or at the very least more humane imperial rule,19 and the unwillingness of the imperial powers to live up to these expectations stirred up significant unrest. The case of Gandhi is instructive: Throughout the war, he had been a staunch supporter of the empire and had worked hard to assist in the recruitment of Indians into the military. Now, however, he realized that his hopes of achieving equality for Indians within the empire had been in vain, and emerged for the first time as a figure of national stature to lead the movement to oppose these “black acts” . . . The response to his announcement was unprecedented.20

Wilson’s promise for self-determination offered hope to colonised peoples and, in spring and summer of 1919, protests, strikes and revolts erupted in places as diverse as Egypt, India, Korea and China.21 Indeed, China became the only country that, despite its participation in the Paris Peace Conference, ended up not signing the Versailles Treaty, as the decision of Western powers to allow Japan’s possession over the region of Shandong provoked outrage in and outside China.22 Chinese mobilisation against the Versailles Treaty signalled the increasing importance of mass politics for international law and diplomacy, especially regarding 18

19

20 21

22

Siba N. Z. Grovogui, Sovereigns, Quasi Sovereigns, and Africans: Race and SelfDetermination in International Law (Minneapolis, MN: The University of Minnesota Press 1996) p. 115. ‘For these Africans, the sacrifice of their lives during the war was a debt sealed in blood that could not be reneged. This blood sacrifice (dette de sang) was the basis of African demands.’ Ibid., p. 114. Manela, The Wilsonian Moment, p. 169. Manela has documented the largely unwarranted and unpredictable impact of Wilson’s proclamation with an emphasis on the above-mentioned countries: Manela, The Wilsonian Moment. ‘It was rather the mobilized Chinese nationalists around the world who had heard the call of self-determination and were determined that China, too, would have it. Largely due to their firm opposition, China became the only state represented at the conference that did not sign the treaty.’ Ibid., p. 193.

.       



the colonial question. Outside the West, 1919 turned out to be the moment for both the rise and the fall of liberal internationalism and many nationalist leaders gradually turned to the Soviet Union for moral and material support, even if most of them did not embrace communism or socialism.23 At the same time, in Paris, the First Pan-African Congress took place and, in its final declaration, called for international administration of those territories that allegedly were not eligible for immediate independence.24 In the case of Iraq, the very language of the ‘mandate’ was anathema to local nationalists, who insisted that anything short of full and complete independence was an insult and a violation of earlier promises.25 This particular historical context would determine the complicated relationship of the League with the colonial question and with the ‘standard of civilisation’, the main argumentative tool that been used to justify and rationalise imperial expansion and conquest up to that point.26 As the argumentative pattern of ‘civilisation’ encountered the administrative structure of this first major international organisation, the interaction reconfigured both. On the one hand, actors operating within the Mandate System drew from and reproduced well-rehearsed arguments about the civilising mission in order to both support and oppose different policies and to give legitimacy to the daily administrative and policing functions of the Mandate System. On the other, if the ‘standard

23

24

25

26

Simultaneously some of them would join the communist movement through the antiimperialist, rather than socio-economic, route. For example, in 1919, Mao Zedong was a young Chinese nationalist sympathetic to Wilson’s ideas but, after the United States’ support for Japan’s imperialist plans for China, he became interested in Bolshevism. Two years later, in 1921, he joined the Chinese Communist Party. Ibid., p. 195. Similarly, Ho Chi Minh, who then was ‘an obscure young Vietnamese leader’, unsuccessfully tried to arrange a meeting with President Wilson to express his people’s aspirations against French colonial rule. Antony Anghie, Imperialism, Sovereignty and the Making of International Law (Cambridge: Cambridge University Press 2005) p. 140. Brenda G. Plummer, Rising Wind: Black Americans and US Foreign Affairs, 1935–1960 (Chapter Hill, NC: The University of North Carolina Press 2007) p. 17. The 1920 Iraqi revolt against the prospect of the imposition of the mandate has often been attributed by Western commentators to Iraqis having misunderstood the notion of the ‘mandate’ due to a mistranslation in Arabic. As Hammoudi points out, this is nothing more than an orientalist trope that ignores the political agency of Iraqis and assumes they were unable to understand the condition of their country due to their supposedly inferior culture: Hammoudi, ‘The Pomegranate Tree Has Smothered Me’, p. 90. On the imperial uses of the term within and beyond international law, see: Brett Bowden, The Empire of Civilization: The Evolution of an Imperial Idea (Chicago: University of Chicago Press 2009).



   

of civilisation’ did not disappear with the rise of the League, it did not remain unaltered either. The ‘logic of improvement’ was transformed to fit new ideas and necessities about the role of the capitalist state, especially in regard to welfarism. At the same time, the bureaucratic logic of international organisations transformed the way arguments about biology and improvement were articulated. The existence of a permanent forum where arguments could be put forward led to the emergence of new actors, notably local nationalists and lawyers, who argued both within and against the argumentative structure of ‘civilisation’.

3.2 Article 22: Continuation of the Civilising Mission by Other Means? The basic outline of the Mandate System was laid down in Article 22 of the League Covenant and the specific arrangements for each Mandate were set out in the respective mandate treaties signed between the Principal Allied and Associated (PAA) Powers, the mandatory power and the League represented by its Council. Importantly, the League was not responsible for political questions such as the inclusion of specific regions in the system or the boundaries of each mandate. As Balfour observed, discussing the Palestine Mandate, ‘mandates were not the creation of the League and they could not in substance be altered by the League’.27 It was the bargaining process between the different powers and the ambitions of both established and emerging imperial powers, notably the white dominions of South Africa, New Zealand and Australia, that gave precise form and content to the general provisions of Article 22.28 Still, the Covenant was consequential since in Article 22 it specified the general principles and modalities of the Mandate System. Without mentioning specific regions, the Covenant stipulated that the Mandate System concerned ‘those colonies and territories which as a consequence of the late war have ceased to be under the sovereignty of the States which formerly governed them and which are inhabited by

27

28

‘Eighteenth Session of the League of Nations Council’ (1922) 3 League of Nations Official Journal 513, 547. On the drafting of the Covenant and the emergence of Australia as a separate subject of international law through the assertion of its imperial interests, see: Cait Storr, ‘“Imperium in Imperio”: Sub-Imperialism and the Formation of Australia as a Subject of International Law’ (2018) 19 Melbourne Journal of International Law 335–68.

.  



peoples not yet able to stand by themselves under the strenuous conditions of the modern world’.29 The wording of Article 22 indicated the provisional, transitional character of the settlement thereby enacting the – familiar by now – ‘logic of improvement’. The Mandate System was not presented as an institution that was to last indefinitely, but as a necessary intermediate stage for specific peoples who could not yet stand on their own. Indeed, when the PMC was confronted with the question of Iraqi independence, its vice-chairman Van Rees noted ‘the principle – which has been accepted by almost all writers and by the mandatory powers themselves – that the mandates system implies only a temporary charge’.30 As Miéville comments: ‘this was an admission that they could learn. The natives, it is claimed, have not yet learnt to stand by themselves. These categories through which the mandates were conceived undermined them, by containing their own end.’31 This ‘logic of improvement’ did not capture the complicated structure of Article 22 in its entirety. The ‘logic of biology’ was also an inextricable part of the provision and of the administrative apparatus that was erected on top of it. This precarious co-existence was reflected in all aspects of the administration of mandated societies. To provide an illustrative example, alcohol-related policies reflected the idea that certain ‘races’ and civilisations were physically and culturally unable to consume alcohol without descending into moral decay, whereas others were more suitable for it. Hence, consumption of alcohol remained unrestricted in the A Mandates, even though their population was predominantly Muslim, while it was subjected to strict regulation in the B Mandates and was altogether banned in the C Mandates. All in all, the hierarchical logic of the ‘standard of civilisation’, and especially of its pole that emphasised immutable differences between different political communities, was at the core of the Mandate System. 29

30

31

Covenant of the League of Nations (adopted 29 April 1919, entered into force 10 January 1920) [1919] UKTS 4 (League Covenant) art. 22, para. 1 (emphasis added). ‘Note by M. van Rees: General Conditions that must be fulfilled before the mandate regime can be brought to an end in respect of a country placed under that regime’ (1931) 20 Permanent Mandates Commission Minutes, annex 3, 197. On the same occasion, Lord Lugard wrote: ‘I venture to think that the Council by its reference to us assumes that a mandate is temporary, and that it has competence to terminate it. This is implicit in the question we are asked, and it is not for the Permanent Mandates Commission to dispute the correctness of the Council’s view, which I venture to think is beyond any question.’ ‘Note by Lord Lugard’, Ibid., 201. China Miéville, Between Equal Rights: A Marxist Theory of International Law (London: Pluto Press 2005) pp. 58–9 (emphasis as in the original).



   

Hierarchy, indeed, operated on many levels. The most obvious one was that between mandatory powers and mandated territories. The basic structure of the mandate enacted the idea that mandated territories could at least, in theory, reach capitalism and modernity. However, they were not able to do so endogenously, but only through a period of subjugation and supervision by international actors.32 The Eurocentric idea that there was something inherent in Western culture, religion or racial composition (and their various combinations) that enabled or even necessitated the transition to capitalism, modernity and global domination was entrenched in the very structure of the Mandate System, as was its mirror image of the stationary East that could only be transformed through external guidance and coercion. Importantly, this is not where the differentiated distribution of rights, duties and status ended. The mandates were also internally differentiated. Undeniably, the modalities of these differentiations were not the outcome of any ideational process, but rather of the strategic calculations and economic interests of imperial powers. As Hammoudi has demonstrated, the structure and content of the A Mandates are only explicable if we understand their important geostrategic location for imperialism as well as the then consolidating dependence on oil as the fuel of capitalist accumulation.33 These dynamics were particularly pronounced in the 32

33

Even though this logic never went away entirely, it became openly acceptable again in the context of neoliberal transformations of post-conflict societies under international territorial administration in the 1990s and early 2000s. For some critical engagements with this era, see: Anne Orford, Reading Humanitarian Intervention: Human Rights and the Use of Force in International Law (Cambridge: Cambridge University Press 2003); Ralph Wilde, International Territorial Administration: How Trusteeship and the Civilizing Mission Never Went Away (Oxford: Oxford University Press 2008); Anne Orford, International Authority and the Responsibility to Protect (Cambridge: Cambridge University Press 2011); Madeleine Rees and Christine Chinkin, ‘Exposing the Gendered Myth of Post Conflict Reconstruction: The Transformative Power of Economic and Social Rights’ (2016) 48 New York University Journal of International Law and Politics 1211–26; Ntina Tzouvala and Maj Grasten, ‘The Political Economy of International Transitional Administration: Regulating Food and Farming in Kosovo and Iraq’ (2018) 24 Contemporary Politics 588–606. ‘Despite the obvious racial dimensions of such a classification, my argument . . . is that at the heart of such a classification was more a concern for geopolitics and economic questions of capital accumulation in the region (especially oil in the case of the Middle East). In other words, the “A” Mandates were classified as such for reasons that were not primarily because Arabs were seen as actually being “more civilized” than African peoples. The “A” Mandates were carved out in the Near East for several reasons, such as to fulfil previous promises concerning independence made by the British, but especially for the necessity of appearing as though colonial exploitation of the old variety was not continuing there.’ Hammoudi, ‘The Pomegranate Tree Has Smothered Me’, p. 81.

.  



case of Iraq and even led to a prolonged dispute between Britain and the neighbouring state of Turkey over the oil-rich region of Mosul, which was eventually resolved to the benefit of the former.34 International law, then, did not control the architecture of the Mandate System, but it did provide a familiar and persuasive language for its justification. This was reflected in the three-fold classification of the mandated territories. Article 22 embodied a progressivist understanding of history, dividing the mandated territories into three categories, according to their perceived degree of development and civilisation. Echoing directly the progressivist outlook of the classical ‘standard of civilisation’, Article 22 and the specific mandate agreements constructed a strict hierarchy between the different mandate categories: The Mandate system enshrined in legal form an evolutionary view of human society. This was evident not just in the notion that colonial powers were bound to the Mandated territories by ‘a sacred trust of civilisation’, but also by the hierarchical organization of the Mandates into A, B, and C categories.35

A Mandates were at the top of this hierarchy. They included the Middle East territories that formerly were part of the Ottoman Empire (Palestine and Transjordan, administered by the United Kingdom, and Syria, administered by France) and their ‘existence as independent nations could be provisionally recognised’.36 Even though this provisional recognition of independence was a blurred expression with unclear legal implications, the underlying understanding was that the degree of development of these societies was such that they were just a few steps away from being recognised as sovereign states. Berman situated A Mandates in the spectrum of sovereignty as follows: ‘if the general Mandate System was a halfway house between colonisation and selfdetermination, the “A” Mandates . . . constituted a half-way house

34

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For an international legal account of the dispute, see: Quincy Wright, ‘The Mosul Dispute’ (1926) 20 American Journal of International Law 453–64. For a recent analysis see: Mai Taha, ‘Self-Determination, Oil and Islam in the Face of the League of Nations: The Mosul Dispute and the “Non-European” Legal Terrain’ in Duncan French (ed.), Statehood and Self-Determination: Reconciling Tradition and Modernity in International Law (Cambridge: Cambridge University Press 2013) 325–48. Philippe Bourmaud, ‘Evolutionism, Normalization, and the Mandatory Anti-Alcoholism from Africa to the Middle East (1918–1939)’ in Schayegh and Arsan, The Routledge Handbook of the History of the Middle East Mandates, 76–87, p. 76. League Covenant, art. 22, para. 3.



   

between the Mandate system itself and self-determination.’37 This hybridity was particularly relevant in the case of Iraq.38 Facing internal rebellion and attempting to appease rising Iraqi nationalism and antiimperialism, the British signed the 1922 Anglo–Iraqi Treaty.39 The treaty recognised King Faisal as the constitutional king of the country, while at the same time constructing a particular form of circumscribed political subjectivity. The British High Commissioner was vested with considerable authority through his advisory role to the newly established monarch.40 Furthermore, Iraq was under a treaty obligation to appoint British advisors in all crucial governmental posts and to accept the presence of British military forces in its territory, as well as to reform its legal system according to the instructions of the British government.41 In this respect, the statement of Sir Henry Dobbs, that Iraq ‘was governed for Iraqis and by Iraqis, helped by small numbers of British advisers and inspectors’,42 certainly constituted cynical imperial rhetoric as well as a concise articulation of the well-established British technique of ‘indirect control’. Apart from establishing a modern political system headed by King Faisal, who they mistakenly thought would become their puppet, the British used a reinvented version of tribal organisation and law to rule over the countryside, thereby replicating the standard dualism between a Westernised urban elite and ‘traditional’ tribal authority that was a standard characteristic of British imperial rule. Therefore, even though the British authorities frequently blamed Sharia law for women’s subordination in Iraq, they remained conspicuously silent about the repressive effects of this reinvented tribal law.43 British reassurances that Iraq was governed mainly ‘by and for Iraqis’ were certainly legally grounded in the peculiar language of Article 37

38

39

40 41 42 43

Nathaniel Berman, Passion and Ambivalence: Colonialism, Nationalism, and International Law (Leiden: Brill 2011) p. 270. The language of hybridity is drawn from Parfitt ‘Empire des Nègres Blancs’. Different scholars have used varying terminologies to grasp the ambivalent status of Iraq in international Law. Hammoudi speaks of ‘semi-peripheral sovereignty’, while Natarajan, drawing from Anghie, uses on ‘Third World sovereignty’: Hammoudi, ‘The Pomegranate Tree Has Smothered Me’; Usha Natarajan, The 2003 Iraq Invasion and the Nature of International Law: Third World Approaches to the Legal Debate (PhD Thesis, Australian National University 2008). Treaty of Alliance between Britain and Iraq (signed 10 October 1922, ratified 19 December 1924). Ibid., art. 4. Ibid., arts. 1, 7 and 9. Wright, Mandates under the League of Nations, p. 203. Noga Efrati, ‘Colonial Gender Discourse in Iraq: Constructing Noncitizens’ in Schayegh and Arsan, The Routledge Handbook of the History of the Middle East Mandates, 157–69.

.  



22 regarding the ‘provisional recognition’ of the independence of the A mandates. At the same time, it was also a distillation of the permanent conundrum of ‘civilisation’ with its precarious balance between the promise of full membership in the international legal community and its perpetual deferral based on presumed immutable difference. We will return to the question of Iraq shortly. For now, it suffices to note that A Mandates were situated on the top of this peculiar pyramid. Directly underneath them lay the B Mandates, which included former German colonies in Central Africa. Mandatory powers were granted much broader powers in the context of these arrangements, including the maintenance of an ‘open door’ policy for all League members, and guarantees for: freedom of conscience and religion, subject only to the maintenance of public order and morals, the prohibition of abuses such as the slave trade, the arms traffic and the liquor traffic, and the prevention of the establishment of fortifications or military and naval bases and of military training of the natives for other than police purposes and the defence of territory.44

Finally, C Mandates included South West Africa, New Guinea and small Pacific islands like Nauru, Samoa and those under Japan’s South Pacific Mandate. These were in the peculiar legal position of being ‘administered under the laws of the Mandatory as integral portions of its territory, subject to the safeguards above mentioned in the interests of the indigenous population’.45 Both international lawyers and League administrators at the time struggled to establish a distinction between the C mandates relationship and outright annexation. The task was neither conceptually easy nor politically uncontroversial.46 Storr has recently argued that it was precisely this ambiguity that led both to protracted legal controversies, as in the case of South West Africa, and to catastrophic environmental damage, as in the case of Nauru, where Australia used the full extent of its administrative powers under the mandate and subsequently under the UN Trusteeship to mine the phosphate-rich island.47 This fine line between annexation and administration also led to disagreements 44 45 46 47

League Covenant, art. 22, para. 5. Ibid. Ibid., para. 6. Cait Storr, Nauru: International Status, Imperial Form, and the Histories of International Law (PhD Thesis, The University of Melbourne 2017). For a moving account of Nauru’s encounter with international law and imperialism and the resulting environmental degradation of the island, see: Antony Anghie, ‘“The Heart of My Home”: Colonialism, Environmental Damage, and the Nauru Case’ (1993) 34 Harvard International Law Journal 445–506.



   

between the PMC and South Africa, when the latter attempted to grant its citizenship automatically to German settlers in South West Africa and to negotiate boundary settlements regarding the mandated territory as if it was part of the mandatory power.48 In fact, we will return to the question of the South West Africa mandate and the protracted legal struggle over its meaning and purposes in the next chapter. This three-fold categorisation of the mandates echoed the three-stage progressivist outlook of the classical ‘standard of civilisation’ giving further credence to the idea that complex, diverse societies could be reduced to three stages of development, which represented not simply difference but a rigid hierarchy. Importantly, the Mandate System was organised around the idea that the standard was attainable for nonWestern societies. In this respect, the Mandate System essentially incorporated the ‘logic of improvement’ while concretising its content. All political communities could achieve ‘civilised’ status in theory, provided that they implemented the necessary reforms, which involved socioeconomic transformation with a view to spreading market relations and the capitalist mode of production outside the West. However, this was considered a rather theoretical prospect, as is evidenced by the fact that when the question of Iraq’s independence arose, the PMC was unprepared to deal with the issue. The ongoing relevance of the ‘logic of biology’ rendered the question of sovereignty for the mandates almost unthinkable at least in the present tense. Pedersen concluded her study of the Mandate System observing that, in 1958, two prominent members of the PMC died while being ‘inadvertent architects of a world they had not imagined’.49 For her, these dynamics were the unpredictable outcome of the process of internationalisation and not a product of the conscious design of imperial states, nor of the Covenant itself.50 Indeed, the Mandate System developed its own dynamics that were not under the control of its designers or of any other one 48

49 50

‘At their second session the Commission recommended that inhabitants of both “B” and “C” mandates be given a national status distinct from that of the mandatory power . . . As Rappard said in the Brussels meeting, should the League allow mandatory powers to treat populations as nationals, those who claimed that mandates were nothing than a cloak for annexation would feel vindicated . . . Pressed by the PMC, the Council thus forced Belgium to concede that mandated territories has a distinct status under international law.’ Pedersen, The Guardians, p. 72, p. 220. Ibid., p. 407. ‘The League helped make the end of empire imaginable, and normative statehood possible, not because the empires willed it so, or the Covenant prescribed it, but because

.    



actor. However, as argued above, Article 22 contained the possibility for normative statehood, as well as the possibility of graded international legal personality. This is not to say that Article 22 was the material matrix of the process of decolonisation. We would be wise to assume that no one thing can claim this role. My argument here is much more modest: Article 22 incorporated the tension between the two poles of the ‘standard of civilisation’: the ‘logic of biology’ and the ‘logic of improvement’. The former was the very basis of the mandatory structure and determined the relationship between mandatory powers and mandated territories as well as between different categories of mandates. The latter was linked to the temporary character of the system and the linking of emancipation and social transformation according to the imperatives of capitalist modernity. Article 22 reduced the tension between these two poles of civilisation to writing,51 and in so doing, it not only reflected already existing tensions of capitalist accumulation on a global scale, but it also provided the legal tools through which decolonisation struggles would be waged, won and lost.

3.3

The Permanent Mandates Commission: Supervising the Experiment

Long before any of that happened, there was the question of the day-today functions of the Mandate System. What was, after all, genuinely innovative about the Mandate System was that its very basic structure dictated and enabled the supervision of the mandatory powers by the League. The League Council was nominally the most important organ when it came to the Mandate System. It was a standardised clause of the mandate treaties that ‘the consent of the Council of the League of Nations

51

that dynamic of internationalization changed everything – including how “dependent peoples” would bid for statehood, what that “statehood” would henceforth mean, and whether empires would think territorial control essential to the maintenance of global power.’ Ibid., p. 406. ‘A treaty is a disagreement reduced to writing (if one may be permitted to do such violence to an ancient definition of a contract). But so is legislation. The eventual parties to a treaty enter into negotiation with different ideas of what they want to achieve. Negotiation is a process for finding a third thing which neither party wants but both parties can accept.’ Philip Allott, ‘The Concept of International Law’ (1999) 10 European Journal of International Law 31–50, 43.



   

is required for any modification of the terms of this mandate’.52 Moreover, the League Assembly established its right to discuss the mandates in its first session and, having a permanent majority of non-imperial states, it developed a critical stance towards mandatory powers. Even though its recommendations were not binding, they were taken seriously. For example, their recommendation that at least one woman should participate in the PMC – to which we will turn our attention shortly – was taken on board and two women (Anna Bugge-Wicksell and Valentine Dannevig) served successively on the Commission.53 Further, the Permanent Court of International Justice was vested with the authority to interpret the terms of the mandates in case of a dispute between the mandatory power and another member of the League.54 Finally, the PMC was the organ specifically dedicated to the supervision of the Mandate System. The PMC had nine members who served in their personal capacity and only four of them were nationals of mandatory powers.55 In practice, most members of the PMC had extensive experience in colonial administration, and many had legal backgrounds.56 On the one hand, this meant that they held all the assumptions of white supremacy and native ‘backwardness’ that informed colonial administration and the legal profession in general. On the other hand, their extensive experience meant that they maintained a degree of independence vis-à-vis their state of origin, having their own personal views on how non-Western societies ought to be administered. If anything, those who operated as

52

53

54

55

56

Amongst many, see: Palestine Mandate (confirmed by the League of Nations 24 July 1922) (Palestine Mandate) art. 27, reprinted in Wright, Mandates under the League of Nations, pp. 600–7; Tanganyika Mandate (confirmed by the League of Nations 20 July 1922) (Tanganyika Mandate) art. 12, reprinted in Ibid., pp. 611–16; Nauru Mandate (confirmed by the League of Nations 17 December 1920) (Nauru Mandate) art. 7, reprinted in ibid., pp. 616–21. Susan Pedersen, ‘Metaphors of the Schoolroom: Women Working the Mandates System of the League of Nations’ (2008) 66 History Workshop Journal 188–207. For some examples, see: Palestine Mandate, art. 26; Tanganyika Mandate, art. 13; Nauru Mandate, art. 7. ‘The Permanent Mandates Commission provided for in paragraph 9 of Article 22 of the Covenant, shall consist of nine Members. The majority of the Commission shall be nationals of non-Mandatory powers.’ Constitution of the Permanent Mandates Commission (approved by the Council 1 December 1920) (Constitution of the PMC) art. (a). ‘Its members may have been hard-headed ex-colonial administrators in the middle age, but they were also, in their own way, idealists. They believed in their civilizing mission, in their right to rule.’ Pedersen, The Guardians, p. 107.

.    



‘organs’ of their governments typically found their influence diminished.57 Three aspects of the work of the PMC merit attention: its legalism, its focus on fact-finding, and its emphasis on standard-setting. The first aspect was essential in light of the novelty of the Commission’s work. Since international supervision of colonial administration was an innovation and the legitimacy of the PMC was always in question, its members resorted frequently to the Covenant in trying to establish and legitimise their authority and show that they were doing no more or less than Article 22 stipulated. In Anghie’s words, ‘[t]he PMC . . . saw its function in legalistic terms. It derived its authority from the Covenant, and its task was to give effect to Article 22.’58 Despite law occupying a minor position in Pedersen’s analysis, she reaches similar conclusions regarding the legalist ethos of the PMC: ‘the Commission was constrained – even its most conservative members were constrained – by its deep textualism. It was charged to uphold the authority of the Covenant and the mandates; indeed, its own authority was rooted in those texts.’59 This faith in the texts indicates that the PMC and the Mandate System indeed developed their own dynamics, but within the framework of Article 22, the mandate treaties, and the Constitution of the Commission. Therefore, the functions of the PMC and the Mandate System must be conceptualised not only as the product of an emerging international bureaucracy but also as being intrinsically linked to international law. Similarly, those who used the petition system to voice their concerns and promote their rights and interests did so by developing a dense hermeneutics of Article 22 and the corresponding mandate agreements, whereby all and any word was invested with conflicting meanings and petitioners argued with, beyond and against the standard of civilisation.60 57

58 59

60

Martial Henri Merlin, the second French national in the Commission, was a typical example of how openly partisan behaviour was exceptional and largely ineffective: ‘Merlin proved too pompous, indolent, and transparently partisan to win any friends. No one in the Commission much liked him, and when in 1932 he faced a public trial for embezzlement, officials at the Quai d’Orsay squirmed with embarrassment.’ Ibid., p. 111. Anghie, Imperialism, Sovereignty and the Making of International Law, p. 151. Pedersen, The Guardians, p. 205. Writing about the stance of the PMC regarding the revival of annexationist plans among the Mandatories, Pedersen also observes that: ‘[p]recedent and legalism, quite as much as conviction, would drive the PMC to resist those developments.’ Ibid., p. 207. On the extensive reliance by all sides on the interpretative possibilities inherent in the mandates’ texts in the struggles over the future of Palestine, see: Wheatley, ‘Mandatory Interpretation’.



   

Second, fact-finding was an essential function of the PMC. As Rajagopal has argued, the trend of collecting information as a means for improving colonial administration began during the nineteenth century, but ‘the establishment of international institutions under the League with special responsibility for collecting and analysing such information quickened and solidified the technocratisation of power in the colonial relationship’.61 Quincy Wright’s assessment of the PMC was clear in this respect: ‘[t]he ultimate object of the League’s action in regard to mandated territories is to improve conditions in those areas. To do this the League organs must know the facts and have in mind some standards by which they may be criticised.’62 There were different ways to collect information. The annual reports submitted to the PMC were perhaps the dominant one.63 The PMC attempted to standardise the form and content of the reports by issuing questionnaires, which covered multiple aspects of the mandates’ administration, such as slavery, labour, arms traffic, education, and public health.64 The PMC also put in place a system of petitions concerning the mandated territories, even though there was no provision for this in the Covenant or its Constitution. Although it is estimated that only 10 per cent of complaints were upheld,65 the system functioned as an additional source of information, given that mandatories’ reports were often incomplete or even outright misleading. In this context, statistics emerged as a principal method of international governance.66 Third, the PMC developed standards and measurements in order to classify and make sense of this immense volume of collected information. Article 22 was vague about how the Mandates were to be governed and 61 62 63

64

65 66

Rajagopal, International Law from Below, p. 52. Wright, Mandates under the League of Nations, p. 190. ‘In every case of mandate, the Mandatory shall render to the Council an annual report in reference to the territory committed to its charge.’ League Covenant, art. 22, para. 7. ‘The Mandatory Powers should send their annual report provided for by paragraph 7 of Article 22 of the Covenant to the Commission through duly authorised representatives who would be prepared to offer any supplementary explanations or supplementary information which the Commission may request.’ Constitution of the PMC, art. (b). See: ‘Questionnaire Intended to Facilitate the Preparation of the Annual Reports from the Mandatory Powers’ reprinted in Duncan Hall, Mandates, Dependencies and Trusteeship (Washington: Stevens and Sons 1948) pp. 319–22. Pedersen, The Guardians, p. 91. ‘The Commission has sought to complete statistical tables of the mandates areas in order that progress in various directions may be tested and at the ninth session asked the Council to authorize the Secretariat to request the mandatories to submit supplementary data not included in the reports.’ Wright, Mandates under the League of Nations, p. 165.

.    



their progress evaluated. It placed the ‘well-being and development’ of the locals at the heart of the ‘sacred trust of civilisation’,67 but without elaborating further. Anghie argues that this process of standard-setting created a ‘synthesis of law and administration’.68 Both the PMC and the League Assembly were convinced that these standards were of broader applicability and that they should be used to influence colonial administration beyond the mandates.69 A call for the codification of these standards failed,70 but there was a widespread faith that thanks to the work of the PMC ‘a science of colonial administration based on a deductive and experimental method’71 was being born. Parallels between this outlook and the subsequent operation of international organisations are too stark to miss, especially in the area of ‘best practices’, ‘indexes’ and ‘guidelines’ regarding economic governance. Sixty-five years later, when the US/UK administration of Iraq was trying to legitimise its decisions invoking ‘international best practices’, it was building on the evolving legacy of the Mandate System and the ambition to standardise foreign administration and economic management of territories deemed ‘uncivilised’ through the work of international institutions.72 This combination of standard-setting and collection of information led to the transformation of the ‘logic of improvement’. Verifying the 67 68 69

70

71 72

League Covenant, art. 22, para. 1. Anghie, Imperialism, Sovereignty and the Making of International Law, p. 152. The Japanese member of the Commission, Yanagita Kunio, characteristically noted that: ‘the successful results which could be obtained within a short time in some territories where circumstances are favourable would be of great use, not only as regards to other mandates but also for the Colonies of the whole world.’ Wright, Mandates under the League of Nations, pp. 228–9. ‘In discussing this suggestion, however, several members of the Commission expressed the fear that such an effort to codify mandatory principles might prove impracticable in view of the varied conditions in the different territories, and preferred to allow standards and principles gradually to emerge from precedents.’ Ibid., p. 220. Ibid., p. 229. ‘The purpose of the International Advisory and Monitoring Board (IAMB) shall be to promote the objectives set forth in United Nations Security Council Resolution 1483 (2003) (Resolution 1483) of ensuring that the Development Fund for Iraq (DFI) is used in a transparent manner . . . and that export sales of petroleum, petroleum products and natural gas from Iraq are made consistent with international market standards.’ Coalition Provisional Authority, ‘Terms of Reference for the International Advisory and Monitoring Board (IAMB)’ (21 October 2003) reprinted in Stefan Talmon (ed.), The Occupation of Iraq: The Official Documents of the Coalition Provisional Authority and the Iraqi Governing Council (Oxford/Portland, OR: Hart Publishing 2013) vol. 2, p. 1442 (emphasis added). For further analysis on international law and the occupation of Iraq, see Chapter 5 of this monograph.



   

capacity of a political community to govern itself became dependent on administrative processes of counting schools, civil courts, children receiving primary education, or money spent on infrastructure, compiling tables and statistics and, finally, evaluating these findings against particular benchmarks. This is not to say that these processes were ‘scientific’, or even factually accurate. They were neither. Mandatory powers frequently lied to the PMC, which was generally unwilling to question the accuracy of their reports. The case of the Samoa mandate, whose popularity the mandatory New Zealand managed to misrepresent for years in front of the PMC, was the extreme example of a widespread practice of both cynical manipulation of and willful ignorance by the PMC.73 Quincy Wright identified this problem in regard to Iraq as early as in 1926: ‘The League’s function cannot be properly exercised without full access to the facts in mandated territories. Lack of information, except such as the mandatory power sees fit to submit, has been a serious weakness of the supervision.’74 What remains important, however, is the emergence of a new logic of government. Furthermore, this gave rise to a new way of arguing about the attainment of ‘civilised status’ in ways that entangled international law with sociology, public administration and statistics. If anthropology had been the principal source of knowledge about ‘uncivilised’ societies during the nineteenth century, in the interwar period social sciences arose as the primary partners in the process of social transformation required by the ‘standard of civilisation’. This turn to statistics, standards, and other disciplines was a broader trend for international law at the time. Article 23 of the Covenant introduced co-operation for a wide range of social and economic issues. The specialised institutions which were founded in order for this co-operation to materialise operated in a similar way to the PMC in collecting information and creating standards for evaluating policies.75 Institutionally distinct but closely associated with the League, the International Labour Organization (ILO) embarked on a similar ‘civilising mission’ that sought to promote institutional change through the introduction of ‘technical assistance’ and the deployment of the language 73 74

75

See: ‘A Pacific People Says No’ in Pedersen, The Guardians, pp. 169–94. Quincy Wright, ‘The Government of Iraq’ (1926) 20 American Political Science Review 743–69, 766. For a concise analysis of Article 23 of the Covenant of the League of Nations, which also links the provision with Article 55 of the UN Charter, see: Gleider I. Hernández, ‘Article 23’ in Robert Kolb (ed.), Commentaire sur le Pacte de la Société des Nations: Article par Article (Brussels: Bruylant 2014) 1003–32.

.  ‘’  ‘’



of development.76 Overall, the transformation of the ‘logic of improvement’ took place across numerous institutional loci and fed back into the structure of the argumentative pattern of ‘civilisation’. This turn to technical evaluations, statistics and rankings would have an enduring impact on the way international lawyers think about the ‘standard of civilisation’ by rendering it invisible. As explicit invocations of ‘civilisation’ became increasingly untenable in a world witnessing anti-racist, anti-imperialist and anti-capitalist struggles, the technical language of statistics, standards, indexes and lists enabled the survival of the ‘logic of improvement’ in purportedly neutral, technical and, thereby, more difficult to contest forms.

3.4 From ‘Civilisation’ to ‘Emancipation’: The Termination of the Iraq Mandate This shift towards less controversial language, which nonetheless encapsulated the conundrum between ‘improvement’ and ‘biology’, was already unfolding under the Mandate System. Indeed, both the PMC and interwar international lawyers were confronted with the question of the endpoint of the ‘sacred trust of civilisation’ when Britain started pushing for the termination of its Iraqi mandate. To say that in doing so Britain was not motivated by a sense of legal obligation would be to state the obvious. However, when justifying its decisions, Britain relied extensively on the language of Article 22 and mobilised the contradictions of the ‘standard of civilisation’ to its advantage, as did its opponents. All sides of the argument found themselves proposing different combinations of ‘improvement’ and ‘biology’ in ways that did not control the eventual outcome of the political struggle, but did manifest the ongoing importance of ‘civilisation’ for international law. Writing about the history of the PMC, Pedersen argued that ‘[i]f sovereignty was the most contested issue with which the Mandates Commission had to deal, the question of economic rights – for the mandatory power, other League states, and the local population alike – ran a close second.’77 In this section, I show that the two issues were, in fact, interlinked. The question of Iraq’s emancipation and admission to 76

77

Guy Sinclair, ‘A “Civilizing Task”: The International Labour Organization, Social Reform, and the Genealogy of Development’ (2018) 20 Journal of the History of International Law 145–97. Pedersen, The Guardians, p. 233.



   

the League combined thorny issues of legal subjectivity and political economy, including both the linking of independent statehood with the imperative of capitalist transformation and questions about the precise way new states would be incorporated into the global economy. For example, the question of whether emancipated Iraq should give all members of the League equal treatment in terms of economic access or whether it was legally acceptable that the British be given preferential treatment was central to debates about the termination of the mandate. Otherwise put, the clash between the prospect of turning Iraq into an arena of imperialist competition or maintaining British capital’s monopoly was inexorably linked to the question of Iraq’s emancipation, statehood and admission to the League.78 This linking of legal subjectivity and political economy became evident once the PMC was confronted with the urgent practical question of Iraq’s emancipation. Given the (justified) suspicion of other League members and of the PMC that Britain was attempting to circumvent international supervision and create a protectorate, the Council requested that the PMC determines the preconditions for a mandate to be terminated. The PMC was instructed to avoid the specificities of the case of Iraq. This resulted in the promulgation of generalised standards instead of an ad hoc examination that would have been necessarily distorted by particularistic interests.79 Moreover, the PMC was adamant that the preparedness of a mandate for independence was a question of fact. As we saw in Chapter 2, this shift towards the language of facticity had been central in the emergence of the ‘standard of civilisation’ since the nineteenth century. In this instance, the pressures exercised upon the PMC meant that it went some way into concretising these facts, which turned out to be juridical in character. Thus, for a territory to be emancipated: 78

79

For a summary of the debate whether Iraq’s adoption of the most-favoured-nation clause and of the ‘open door’ policy ought to have been a precondition for the termination of the mandate: Luther Harris Evans, ‘The General Principles Governing the Termination of a Mandate’ (1932) 26 American Journal of International Law 735–58, 747–8. ‘On January 22nd, 1931, the Council decided to invite the Permanent Mandates Commission to pursue the study of the problem of the termination of a mandate in its “general aspect”. The discussions which preceded this decision clearly showed that the Council does not expect this examination to extend to any particular cases or to the question of the conditions required for the admission of a mandated territory to the League . . . This resolution makes no distinction between the various territories at present under mandate. The Commission is therefore called upon to examine the three categories of territories under A, B, and C Mandates, although it is obvious that, as regards the last two categories, the question is of purely theoretical interest.’ ‘Note by M. van Rees’, 195.

.  ‘’  ‘’



(a) It must have a settled Government and an administration capable of maintaining the regular operations of essential Government services; (b) It must be capable of maintaining its territorial integrity and political independence; (c) It must be able to maintain public peace throughout the whole territory; (d) It must have at its disposal adequate financial resources to provide for normal Government requirements; (e) It must possess laws and a judicial organisation which will afford equal and regular justice to all.80 These preconditions were essentially a restatement of the requirements for a political society to be considered civilised, as summarised by Gong,81 and crystallised in state practice around extraterritoriality in the decades preceding the Mandate System.82 For the mandate to be terminated, political communities needed to display some core features of the modern capitalist state: territorialisation of relations of power, state monopoly over legitimate violence through the pacification of society, judicialisation of social relations through legal reform and codification so that laws supported core market functions. In addition to these attributes, the criteria of the PMC were more explicitly concerned with economic functions than their nineteenth-century version. This is clear in the fourth criterion, which requires public finances of at least some soundness so that they can support ‘normal Government requirements’. As Lugard, the British Commissioner, noted, for a mandated territory to be emancipated, it needed to have the rudimentary capacities of the modern (capitalist) state:

80 81

82

Ibid., 228–30. Gong has summarised the criteria to be fulfilled for a polity to be considered ‘civilised’ as follows: ‘1. Guarantees of basic human rights, such as life, dignity, property, freedom of movement, of commerce and of religion. 2. The existence of a vertically and bureaucratically organised state apparatus, capable of armed self-defence. 3. The legalisation of domestic and foreign affairs. This included codification and publication of laws along with the establishment of a professionalised, independent judiciary were central parts of this process. 4. Maintenance of permanent diplomatic relations with the outside world. 5. Abolition of “uncivilised” practices, such as polygamy, suttee and slavery.’ Gerrit W. Gong, The Standard of ‘Civilization’ in International Society (Oxford: Clarendon Press 1984) pp. 14–15. For extraterritoriality as a principal expression of the ‘standard of civilisation’ with all its contradictions, see Chapter 2 of this monograph.



    The Council must be satisfied that the Mandatory has good grounds for its belief that the new State can maintain internal order and efficient government; that the Government of the area released from the mandate is acceptable to the majority, and the welfare and just treatment of racial, linguistic and religious minorities are assured; that the State is able and willing to fulfil the obligations it undertakes; that it has functioned for a certain time with success; and that there is an adequate prospect for economic and financial stability.83

Apart from physical control over territory, these rudimentary capacities presumably included all those functions of the mandate powers that the PMC was supervising so closely: education and hygiene, labour management and infrastructure development and maintenance, to mention but a few.84 Other than that, the fifth criterion of the PMC encapsulated the demand for comprehensive legal reform that was so strikingly present in the history of extraterritoriality. Even though the PMC did not substantially elaborate on how it understood its references to legality and justice when discussing the preconditions for the termination of a mandate, the past legal practice can help us clarify this criterion. The history of legal reform under extraterritoriality regimes indicates that ‘equal and regular justice to all’ was linked with the abolition of feudal and other non-capitalist legal systems and the establishment of a state monopoly over legality. Further, the individualisation of the social body necessary for a market economy to function was crafted through the establishment of individual rights. The development of guarantees for property rights and commercial activity was also deemed essential for the achievement of ‘justice’, as stipulated in the fifth criterion. This is hinted at in the Report of the Portuguese member of the PMC, Count de Penha García, who stated that

83 84

‘Note by Lord Lugard’, 202. ‘Mlle Dannevig, referring to the conditions which must exist in a territory before it is released from the mandate, considered that a modern state should not only ensure the maintenance of peace and order by means of armed forces and police, but should also take positive steps to promote the development of its inhabitants by means of education. The State should also create in its territory general health conditions, which would enable the population to avoid disease and to keep in good health. She therefore proposed to add a paragraph to the following effect: “It should possess an educational and health organisation which, while possibly not having reached full development, demonstrates the intention of the new State to take an interest in the mental, moral and physical health of its inhabitants.” The Chairman pointed out that the provisions as adopted of paragraph (a) of Chapter I covered the points mentioned by Mlle Dannevig.’ ‘Note by M. van Rees’, 179.

.  ‘’  ‘’



a territory’s capacity for self-government was linked to its ability to be integrated smoothly in ‘the present political, economic, commercial and other conditions of the modern world’ and identified ‘the spirit of the legislation in force’ as one of the factors that would enable this smooth integration.85 Further, for this legal system to be effective, the state had to assume effective control over territory and be able to enforce these laws over tribal, feudal or other interests. Overall, the preoccupation of the PMC’s criteria with control over territory was reflective of this core requirement for effectiveness of legislation and dissolution or subordination of pre-capitalist structures of production, modes of power and ways of being. This focus of the PMC on economic transformation did not escape Anghie, who, despite his overall emphasis on cultural difference, notes the centrality of the capitalist economic form in the management of the mandates, only to go on and state that this was nothing but the specific form cultural difference assumed in that context: [c]rucially, the problem of cultural difference was presented in the Mandate System not in terms of the distinction between the civilized and the uncivilized, but rather in terms of the ‘backward’ and ‘advanced’ . . . It is in the Mandate System, then, that we arrive at this pivotal moment, when the ‘uncivilized’ are transformed into economically backward.86

Importantly, the Mandate System was not simply a façade for the uninterrupted continuation of nineteenth-century international law. One crucial aspect of the social functions of the Mandate System, which can be identified both in the monitoring and standard-setting processes of the PMC discussed above, was welfarism. In essence, the emergence of welfarist ideology and practice transformed the contours of ‘the logic of improvement’. For a non-Western state to be considered ‘civilised’ and to be given the prospect of equal rights and duties under international law, it had to at least rhetorically conform with some rudimentary welfarist imperatives. More broadly, ‘the logic of improvement’ should not be thought of as a static, transhistorical absolute, not least because this is precisely how its advocates have perceived it. As they linked historically specific forms of organised co-existence with the high rhetoric of ‘civilisation’, morality, Christianity, or more recently with the discourses of

85

86

‘Report by Count de Penha Garcia’ (1931) 20 Permanent Mandates Commission Minutes 206. Anghie, Imperialism, Sovereignty and the Making of International Law, p. 189.



   

dignity, democracy or human rights, the advocates of the ‘logic of improvement’ attempted to present historically contingent transformations and preferences as transcendental values. As I will argue in Chapter 5 of this monograph, this tendency remains in the post–9/11 landscape. For now, the interwar period can help us decipher the concrete transformations of the ‘logic of improvement’ when the question of Iraq’s emancipation arose. Welfarism was a broader trend of international legal theory and practice in the interwar years. Jouannet has conceptualised this welfarist turn as a ‘promise of a major revolution to come for the liberal framework of classical international law’.87 Even though Jouannet focused on the ILO and her references to the Mandate System are scant, promoting native well-being was one of the objectives of the Mandate System, as stipulated in Article 22. To fulfil this goal, the PMC monitored mandatory powers’ efforts regarding land management, education, health and labour, while transforming the international legal definition of statehood to include limited welfarist functions. In turn, this practice and discourse production had an impact on the meaning of ‘normal Government requirements’ in the criteria for the termination of the Mandate System, which was distinct from the simple maintenance of public order. These functions included a minimum standard of state intervention in health, education and labour. Moreover, the PMC monitored the administration of the mandates in reference to certain welfarist objectives. The shift was evident: during the eighteenth and nineteenth centuries, the extermination of local populations was generally seen as a natural process, the outcome of the encounter between ‘inferior’ and ‘superior’ races. The PMC, however, considered demographical collapses and high mortality rates to be evidence of maladministration. In his classic work on the mandates, Wright regretted the lack of reliable statistics on fertility and population trends in the administered territories, but noted that despite these technical difficulties, the Commissioners remained committed to monitoring and preventing population collapses: ‘Mr Rappard of the Mandates Commission has insisted that “if the native races were dying out, it was clear that their moral and material welfare were being sacrificed”.’88 Against this background, (official) public expenditure for health or education was an important criterion for evaluating the success of the Mandate System. Even though the statistics of the time are unreliable, Wright defended the Mandate System by arguing that ‘[i]n 87 88

Jouannet, The Liberal-Welfarist Law of Nations, p. 178. Wright, Mandates under the League of Nations, p. 550.

.  ‘’  ‘’



1926 the health expenditures in African areas compared favorably with those in neighboring colonies of the mandatory.’89 Similarly, relatively high expenditure on and increasing access to education were seen as principal achievements of the Mandate System: French progress in education in Togoland and Cameroons was particularly notable. The expenditures doubled from 1920 to 1927, though at the end they were only one-third of the health expenditures . . . The proportion of the population in the schools, 2.2 per cent in French Togoland and 2 per cent in French Cameroons, was far beyond the average in West African colonies.90

Crucially, welfare was closely linked to the question of labour: Health is undoubtedly an important element in human welfare, and the Mandates Commission has often drawn attention to conditions such as recruiting labor for work at a distance which might militate against it. The Commission has also requested an explanation of heavy mortality in certain types of labor and suggested increases in medical staff, adequate health expenditures, and instruction in hygiene in schools.91

This turn to welfarism can be better understood in reference to the potential of social destruction, which is immanent to the capitalist mode of production. The destructive power of capital over labour is key for Marxian critiques of capitalism. Competition forces each individual capitalist to reduce salaries and other costs related to labour (for instance, health and safety measures) and to press for the extension of the working day and the intensification of the labour process. This is an objective tendency that cannot be reduced to the ‘greed’ or any other objectionable personal trait of the capitalist. Marx argued about the objective character of the struggle over the length of the working day as follows: The capitalist maintains his rights as a purchaser when he tries to make the working day as long as possible . . . On the other hand, the peculiar nature of the commodity sold implies a limit to its consumption by the purchaser, and the labourer maintains his right as seller when he wishes to reduce the working-day to one of definite normal duration. There is here therefore, an antinomy, of right against right, both equally bearing the seal of the law of exchange. Between equal rights, force decides.92

89 90 91 92

Ibid., p. 553. Ibid., pp. 561–2. Ibid., p. 552. Karl Marx, Capital: A Critique of Political Economy (first published 1867, translated by Ben Fowkes, London: Penguin 1992) vol. 1, p. 334.



   

When no regulation of the labour process is in place, the Marxist argument goes, whoever does not conform to the above tendency will sooner or later go bankrupt, that is, stop being a capitalist. Here lies a fundamental contradiction between the interests of individual capitalists and of capital as a social force. The suppression of wages, the extension of the working day and the lack of any welfare system might be beneficial for each capitalist individually, but these practices endanger the normal reproduction of the labour force as a whole. This is because, at a very basic level, the value of the commodity ‘labour power’ equals the value of all the products necessary for the reproduction of labour power. That is, the worker must cover the absolute minimum needs for food, housing and clothing, along with the corresponding needs of his/her children. When the salary drops below this level, or when exploitation is so intense that it undermines the working capacity of the worker, the long-term interests of capital as a social force are imperilled. This destructive potential of capitalist development became evident in the course of the nineteenth century. In 1844, Engels published his classic book on the appalling condition of the English working class.93 A century later, Polanyi argued that the central preoccupation of nineteenthcentury sociology and political economy was the pervasive, unprecedented poverty that accompanied the Industrial Revolution and colonial expansion.94 Indeed, the destructive potential of market expansion was felt both at the centre and the periphery of capitalism and led to significant social unrest. As Jouannet observes: [A] new indigent population appeared that experienced both poverty and loss of status. The dreadful conditions of manual workers, the injustices and inequalities of the system generated succeeding economic and social crises at regular intervals, and that ended up sowing doubt about the capacity of liberal and financial capitalism to ensure growth and progress.95

The First World War and the subsequent rearrangement of the international legal order provided an opportunity for the incorporation of 93

94

95

See generally: Friedrich Engels, The Condition of the Working Class in England (first published 1844, New York: Penguin 2009). ‘Up to the time of Speenhamland no satisfactory answer could be found to the question of where the poor came from. It was, however, agreed among eighteenth-century thinkers that pauperism and progress were inseparable.. . . When the significance of poverty was realized, the stage was set for the nineteenth century.’ Polanyi, The Great Transformation, p. 108, p. 116. Jouannet, The Liberal-Welfarist Law of Nations, p. 169.

.  ‘’  ‘’



welfarist concerns into the discipline of international law: ‘for most politicians and international lawyers of the age it was not a matter of dismissing the liberal purpose of international law in force among civilized states, but rather of redirecting its aim in a more social direction’96 in an attempt to tame the most extreme aspects of capitalist exploitation and to prevent violent anti-capitalist revolutions. Through numerous conventions concluded shortly after its establishment, the ILO sought to tame the worst aspects of capitalist exploitation by setting minimum age requirements for industrial and agricultural employment or regulating weekly rest and night work for women,97 while purposefully abstaining from any criticism of the capitalist system as a whole.98 In this respect, the foundation of the ILO was indeed ‘an emblematic and principal turning point of international law’99 in such a social direction. It was also accompanied by Article 23 of the Covenant and by the incorporation of welfarist concerns in colonial administration through the Mandate System. However, this welfarist turn need not be romanticised or exaggerated. During the same period ‘the League’s main economic strategy had been to stabilize capitalism’,100 and prevent the spread of socialism: ‘[t]he League’s currency stabilization packages were basically written, as a British Foreign office official put it, in order to keep places like Austria and Hungary “from throwing up their hands and going Bolshy”.’101 Indeed, the League incorporated certain welfarist concerns, while imposing on states like Austria a strict austerity programme.102 At the same time, the PMC considered the establishment of a Jewish–Arab communist party in Palestine to be an existential threat 96 97

98

99 100 101 102

Ibid., p. 174. Convention Fixing the Minimum Age for Admission of Children to Industrial Employment (adopted 28 November 1919, entered into force 13 June 1921) 38 UNTS 81; Convention concerning the Application of the Weekly Rest in Industrial Undertakings (adopted 17 November 1921, entered into force 19 June 1923) 38 UNTS 187; Convention concerning Employment of Women during the Night (adopted 28 November 1919, entered into force 13 June 1921) 38 UNTS 67. For a Marxist engagement with the early ILO’s understanding of exploitation, see: Mai Taha, ‘Law, Labour, Class Struggle and Nervous Breakdowns’ in Orford et al., Revolutions in International Law. Jouannet, The Liberal-Welfarist Law of Nations, p. 177. Mazower, Governing the World, p. 150. Polanyi, The Great Transformation, p. 152. ‘The prestige of Geneva rested on its success in helping Austria and Hungary to restore their currencies, and Vienna became the Mecca of liberal economists on account of brilliantly successful operation on Austrian krone which the patient, unfortunately, did not survive.’ Ibid., p. 25.



   

that it needed to address urgently.103 All these initiatives, despite their contradictions, were diverse responses to the internal and external challenges that capitalism faced in the interwar period. In the context of the Mandate System, welfarism took the form of counting schools, hospitals or hygiene campaigns and pushing for minimal labour protections. In practice, this outlook did little to improve the living standards of local populations, especially if we take into account the hostility exhibited by both the mandatory powers and the PMC towards labour militancy. However, this shift towards welfarism produced very real effects in the realm of international legal argumentation, where the ideal of the liberal state was gradually displaced by a much more complicated understanding of the proper role of the state in the management of capitalist development. The engagement of the PMC with the ‘standard of civilisation’ did not stop there. In addition to the preconditions of emancipation examined above, the work of the PMC engaged with aspects of ‘civilisation’ in at least one more way: the question of (free) labour, which as we have already discussed was also vividly present in debates about welfarism and the relationship between the (civilised) state and the market. The prohibition of the slave trade was explicitly mentioned as one of the core obligations for the B Mandates.104 Secondly, an ILO representative was appointed to the PMC with ‘the right of attending in an advisory capacity all meetings of the Permanent Commission at which questions relating to labour are discussed’.105 Thirdly, and more importantly, the prohibition of forced or compulsory labour was incorporated expressly in all B and 103

104

105

‘The Chairman stated that, according to an article in the French Press on February 1st, 1931, a Communist Congress composed of Arabs and Jews had met at Jerusalem in December 1930. An organisation had been formed in which the Arab element was predominant. He asked if these arrangements had been made with the knowledge and permission of the British Government. The Arabs said that the Communists were mostly found among the Jews, while the Jews stated that most of the Communists in Palestine were Arabs . . . The CHAIRMAN was glad that the Intelligence Service had been reorganised and hoped that it would work quite satisfactorily. He added that, as the service was now better organised, it would be inexplicable if the French Press were better informed than the Administration.’ ‘Communist Activity in Palestine’ (1931) 20 Permanent Mandates Commission Minutes 87–8. ‘Other peoples, especially those of Central Africa, are at such a stage that the Mandatory must be responsible for the administration of the territory under conditions which will guarantee freedom of conscience and religion, subject only to the maintenance of public order and morals, the prohibition of abuses such as the slave trade’ League Covenant, art. 22, para. 5. Constitution of the PMC, art. (a).

.  ‘’  ‘’



C Mandate agreements.106 Exceptions to this prohibition were only granted for public works or services and in return for adequate remuneration.107 This effort, however, was directly contradicted by the ambition to achieve ‘development’ for the territories, especially given that development was explicitly mentioned as one of the goals of the Mandate System in Article 22.108 The creation of free labour was in direct tension with other requirements for the effective function of capitalism, including the building of infrastructure, such as road networks or railways, that would allow both the intensification of commercial activity and the effective unification and control of territory. The importance of infrastructure – especially railways – for capitalist development and state centralisation had already become clear by the mid-nineteenth century: ‘[t]he railroad influenced political organization in two fundamental ways – first by reinforcing the credibility of the nation-state as a cohesive arena of collective decision-making, secondly, by enabling and favouring new coalitions of historical actors to seize leadership within states.’109 Thus, we can read the ongoing tensions between the demand for the abolition of slavery and the demand for development as part of the ongoing, unresolvable tension between the ‘logic of improvement’ and the ‘logic 106

107

108

109

Amongst many, the Tanganyika Mandate read as follows: ‘The Mandatory: (1) shall provide for the eventual emancipation of all slaves and for as speedy an elimination of domestic and other slavery as social conditions will allow; (2) shall suppress all forms of slave trade; (3) shall prohibit all forms of forced or compulsory labour, except for essential public works and services, and then only in return for adequate remuneration.’ Quoted in Wright, Mandates under the League of Nations, p. 611. Article 3 of the Nauru Mandate also read: ‘The Mandatory shall see that the slave trade is prohibited, and that no forced labour is permitted, except for essential public works and services and then only for adequate remuneration.’ Nauru Mandate, art. 3. The Rwanda– Urundi Mandate repeated verbatim the provision of the Tanganyika Mandate, with the sole difference that it permitted forced labour only for ‘public works and essential services’, setting, presumably, an even higher threshold: Rwanda–Urundi Mandate (confirmed by the League of Nations 20 July 1922) art. 5, para. 3, reprinted in Wright, Mandates under the League of Nations, pp. 611–16. ‘To those colonies and territories which as a consequence of the late war have ceased to be under the sovereignty of the States which formerly governed them and which are inhabited by peoples not yet able to stand by themselves under the strenuous conditions of the modern world, there should be applied the principle that the well-being and development of such peoples form a sacred trust of civilisation and that securities for the performance of this trust should be embodied in this Covenant.’ League Covenant, art. 22, para. 1 (emphasis added). Charles S. Maier, Leviathan 2.0: Inventing Modern Statehood (Cambridge, MA: Belknap Press 2012) p. 88.



   

of biology’. On the one hand, free labour was a precondition for the capitalist mode of production, as was rudimentary infrastructure. On the other hand, racialised slavery and, more broadly, unfree labour had become fundamentally incorporated into global networks of production and exchange and offered opportunities for incredible profit margins and for conducting imperial development ‘on the cheap’. Article 22 incorporated these contradictory but also interconnected aspects of global capitalist development. As a consequence, the tensions that arose from these different requirements were difficult to reconcile both in theory and practice and the PMC was constantly striving to achieve an impossible balance.

3.5

Arguing with Contradictions: International Legal Discourse and the Iraq Question

The relationship between compulsory labour and development was not the only dilemma that did not avail itself to an obvious or objective juridical solution. Rather, as has been happening periodically since, Western imperialism in Iraq pushed the discipline of international law to its limits. As I have already shown, the initiative of the British government to terminate its mandate caused confusion and doubt amongst both international bureaucrats and lawyers. Emancipation was considered to be theoretically possible but practically remote. British representatives mobilised the inherently contradictory nature of ‘civilisation’ in order to argue that despite its continuing domination of Iraq and the country’s precarious state structures, the mandate had nonetheless come to fruition. Similarly, the opponents of this plan mobilised the exact same contradictory argumentative structures to oppose Britain’s plans. Britain offered the most comprehensive elaboration of its overall position in a lengthy report submitted to the League Council (hereafter, the Report).110 Offering an overview of Iraq’s progress between 1920 and 1931, the Report combined a detailed examination of the social, political, legal and economic reforms undertaken in the country with arguments drawn from Article 22 of the Covenant. Emphasising the transformation of the mandate, the Report nonetheless stated in its introduction that the 110

Great Britain Colonial Office, Special Report by His Majesty’s Government in the United Kingdom of Great Britain and Northern Ireland to the Council of the League of Nations on the Progress of Iraq during the Period 1920–1931 (London: His Majesty’s Stationery Office 1931).

.   



‘British never regarded the attainment of an ideal standard of administrative efficiency and stability as a necessary condition either of the termination of the Mandatory regime or of the admission of Iraq to membership of the League of Nations.’111 It went on to offer a very narrow reading of its obligations under Article 22 asserting that there was no need for Iraq to become right away comparable with ‘the most highly developed and civilized nations of the modern world’.112 Rather, the Report focused on the purportedly hopeless situation the British had inherited from the Ottoman Empire and highlighted the improvements they had brought about. For example, control over the country’s territory and performance of the repressive functions of the modern state, as also mentioned in the emancipation preconditions of the PMC, were of paramount importance. The Report recorded the construction of an authoritarian state in which the line between the police and the army was blurred: ‘[T]he police, besides their normal civil duties of watch and ward, and detection and prevention of crime, are employed in the capacity of gendarmerie to strengthen and extend control, to keep order in the tribal areas, and in general to maintain internal security.’113 Similarly, the authors of the Report considered the increase of the number of prisons in the country a sign of progress,114 and treated prison labour with similar enthusiasm.115 Simultaneously, the British were keenly aware of the fact that documenting the rise of a ‘night-watchman’ state would not be sufficient for the PMC. Thus, education, health, infrastructure and economic management formed the bulk of the Report. Detailing the rising numbers of schools, pupils, (male) doctors and (female) nurses, the tonnes of quinine distributed, and the expansion of the railway, the Report aimed at fostering a sense of continuous improvement and progress despite considerable obstacles: [A]s a result of a policy of economy it has been possibly to reduce the gross working expenditure from Rs. 100 lakhs in 1923–24 to Rs 68.33 lakhs, excluding depreciation, in the year 1920–30, the ration to earnings

111 112 113 114 115

Ibid., p. 10. Ibid., p. 11. Ibid., p. 60. Ibid., p. 61. ‘The prisoners thus learn trades and the department, by using their work, saves money.’ Ibid., p. 62.



    being 92.6 as compared with 83.1 per cent respectively . . . Goods tonnage carried also shows a marked increase.116

When arguing in this register, the Report presented a clear encapsulation of the ‘logic of improvement’. Iraq had been transformed satisfactorily enough and therefore, the promise of Article 22 ought to be fulfilled. The final lines of the text read as follows: His Majesty’s Government confidently looked forward to the application of Iraq for membership of the League being made as soon as the frontiers were settled and a stable government set up in accordance with the Organic Law . . . Iraq will by that date be adjudged to be able to stand alone as a fully independent self-governing State.117

At the same time, though, both the Report and British representatives addressing the League were adamant that Iraq’s emancipation, independence, and admission to the League would not automatically equate it to Western states in terms of rights, duties or status, and that there was no legal requirement that it should. Falling back to the ‘logic of biology’, British officials tried to authorise their peculiar legal relationship with emancipated Iraq, which included extensive control over the country’s economy, politics and airspace. Lord Lugard, when arguing for a broad interpretation of the ability to ‘stand alone’ in Article 22, visualised this treaty-based relationship of patronage as standing up ‘with the aid of a prop, or buttress to lean on, before it attempts to walk or run’.118 The British Report to the PMC also went to great lengths to explain why its audience ought to imagine British imperial powers precisely as such a ‘prop or buttress’. Even though the Report emphasised the country’s constant progress, it also kept drawing out Iraqis’ supposed backwardness, unruliness, and unpreparedness for self-government. Damage to infrastructure was invariably attributed to the propensity towards disturbance and violence of Iraqis,119 who were also blamed for lack of civic responsibility and indifference towards the requirements

116 117 118 119

Ibid., p. 165. Ibid., p. 288. ‘Note by Lord Lugard’, 201. ‘Three months after the transfer, that is on the 30th of June, 1920, the Euphrates Arabs rose in revolt. This disaffection spread all over the country and most section of the [rail] line suffered at the hands of the rebels. The Basra–Baghdad line between Ur Junction and Hills was practically demolished.’ Special Report, p. 129.

.   



of citizenship.120 Similarly, Iraqis were portrayed as backward and as being an impediment to their country’s progress.121 The laziness, ruthlessness and overall incompetence of public servants could only be overcome through the guidance and help of British experts.122 The dearth of good lawyers was also noted in a strongly disapproving tone: ‘Apart from a few notable exceptions, their standard of ability is weak, especially in commercial matters and the business firms complain not only of the difficulty of obtaining good advice, but also of the lack of attention paid by the lawyers to the cases entrusted to them.’123 As we saw earlier, the ‘logic of biology’ was a core component of Article 22, dictating that mandated territories were by definition unable to transition to modernity and capitalism of their own accord. Relying heavily on the ‘logic of biology’, the British argued that Iraq’s full admission to the realm of civilisation would take an unspecified amount of time: British ideas of progressive and enlightened government are the product of centuries of steady development in conditions which cannot by the nature of things be expected to obtain in Iraq for many years to come. Small wonder then if from the point of view of modern Western civilization the British officials were in advance of the Iraqi both in theory and in practice.124

In the meanwhile, the continuing presence of British advisers and military in Iraq was, the argument went, both in accordance with international law and, more importantly, a natural extension of the externally guided modernisation at the core of the Mandate System:

120

121

122

123 124

‘[I]t cannot be said that any clear idea of the duties and privileges of democratic citizenship has been widely spread among all classes of the people.’ Ibid., p. 13. ‘Cases may have occurred where individuals have proved themselves unworthy of their responsibility: the highest ideals may not always have been reached; full advantage may not always have been taken of the disinterested advice which the British officials are not less ready to render than they were before.’ Ibid., p. 30. ‘By degrees the less capable Iraqi officials were pensioned off and replaced by others with higher educational qualifications and greater administrative experience and ability. As the standard of Iraqi officials improved, it became clear that this system must be modified and it says much for the tact and forbearance of both sides that it lasted so long.’ Ibid., p. 53. ‘[T]he officers, though still somewhat lacking in energy and resource, were improving and . . . the non-commissioned officers and men were now excellent soldiers and their marching powers quite exceptional. In these operations the policy of the British Mission, that of training the army to stand alone, was pursued to limits hitherto regarded as dangerous.’ Ibid., p. 47. Ibid., p. 83. Ibid., p. 29.



    The British High Commissioner . . . has for almost the whole of the period under review stood to the Iraqi Government more in the relation of an adviser than of a controlling authority, already finds it possible to intervene in Iraqi affairs to so moderate an extent and in such a manner that the mandatory regime could be terminated without causing any dislocation in the machinery of the government. The British officials in the service of the Iraqi Government are contributing expert assistance in a form which is not incompatible with full self-government.125

By crafting this precarious balance between ‘improvement’ and ‘biology’ Britain was defending the push for Iraq’s formal emancipation and, crucially, the 1930 Anglo–Iraqi Treaty, which had been signed a year earlier. The Treaty was nominally one of alliance, and it effectively extended much of British control over Iraq’s economic and military affairs.126 Article 5 authorised the presence of British air bases and military forces in Iraqi territory, while a separate financial annex ensured continuing British control over strategic assets, including the railways and the Port of Basra. The argumentation of the Report was paving the way for a very particular form of sovereignty and membership in the League, which would not undo British imperial control over Iraq’s economy and territory. Therefore, Iraq’s emancipation from the mandate is frequently considered a mere formality – a cynical diplomatic manoeuvre. For instance, Pedersen stresses that Iraq remained dependent on Britain while imperial control could continue at a lesser cost and without the supervision of the League.127 Crucially though, Britain could play this game of formal(istic) independence precisely because the text of Article 22 paved the way for sovereign statehood by declaring the temporary nature of the Mandate System, while also accepting the possibility that this sovereign statehood would be fundamentally circumscribed. Far from subverting or violating the spirit or the letter of the mandate, the British used the very real contradictions that were at its heart to construct an argumentative practice that oscillated between the ‘logic of improvement’ and the ‘logic of biology’. Leading legal scholars at the time also had to rely on these contours of the ‘standard of civilisation’ in order to make sense of, support, or oppose the British plans. Quincy Wright remained sceptical about Iraq’s preparedness for emancipation, but nevertheless had to concede that the

125 126 127

Ibid., p. 283. Treaty of Alliance between United Kingdom and Iraq (signed 30 June 1930). Susan Pedersen, ‘Getting Out of Iraq – in 1932: The League of Nations and the Road to Normative Statehood’ (2010) 115 The American Historical Review 975–1000.

.   



termination of the mandate was, in fact, its fulfilment.128 Trying to figure out whether termination was appropriate, Wright ended up in an argumentative tangle, much as the PMC also did. Drawing from the discussions of the nineteenth session of the supervisory organ, Wright implied that the unwillingness of Iraqi officials to follow British advice was a sign of the country’s incomplete transformation.129 For Iraq to be deemed ready for independence it had to show willingness to effectively curtail such independence, or, to return to the vocabulary of ‘civilisation’, for Iraq to achieve a partly civilised status it had to accept its relative barbarity and defer to the judgement of its superiors. Relatedly, even though both the members of the PMC and international legal scholars attempted to draw a line between the termination of the mandate and the admission of Iraq to the League, the two questions remained interlinked and manifested the constant slippage between the ‘logic of improvement’ and the ‘logic of biology’ that is ingrained in the ‘standard of civilisation’ as an argumentative pattern. In this context, the crafting of a modern, authoritarian state in control of its territory and its population was celebrated, while simultaneously elevated into a constant source of anxiety. The question of minority protection is illustrative. The political mobilisation and concerns of subjugated populations, such as the Kurds or Assyrians, and their petitions to the PMC were ‘translated’ into the language of international law in ways that did not resolve the tensions arising from the demand for an expansive state, but did enable imperial powers to intervene in the affairs of newly independent states, including Iraq. On the one hand, the ‘logic of improvement’ compelled Iraqi authorities to expand their powers over regions and people(s) who had previously led relatively autonomous, locally organised lives. It was this crafting and expansion of state power that not only threatened minorities, but rendered the category of ‘minority’ meaningful in the first place.130 This was the point 128

129 130

‘The change of the status of a mandated territory is, however, an entirely different thing. This is not a modification of transfer of a mandate, but fulfilment of a mandate . . . These [Article 22] provisions all seem to contemplate the automatic termination of the status of Ira as a mandated territory when it in fact is able to stand alone, and admission to the League is specifically referred to as adequate evidence of that fact.’ Quincy Wright, ‘The Proposed Termination of the Iraq Mandate’ (1931) 25 American Journal of International Law 436–46, 439–40. Ibid., 442. On the collapse of the Ottoman Empire and the formation of the category of the ‘minority’ along with the nation-state, see: Ntina Tzouvala, ‘“These Ancient Arenas of Racial Struggles”: International Law and the Balkans 1878-1949’ (2018) 29 European Journal of International Law 1149–71.



   

in which ‘improvement’ met ‘biology’: even as Europe was descending into authoritarianism and genocidal racism, Arabs were imagined to be uniquely intolerant towards ethnic and religious minorities, and, therefore, their protection became a central preoccupation of both the League and of public opinion in Europe. In 1937, James C. Hales argued that the case of Iraq had shown that apart from the ability to stand on its own, a mandated territory also had to prove its willingness and ability to protect the rights of foreigners and minorities in order for it to be emancipated.131 As with the case of Ethiopia’s conditional admission to the League,132 Iraq had to admit to its relative barbarity and incompetence through the acceptance of legally binding guarantees for the protection of minorities for its relative civilisation and competence to be acknowledged. This constant slippage between the two logics also made it difficult for those sceptical of Iraq’s independence to articulate their arguments in the language of international law, even though the deliberations of the PMC made it clear that its members remained unconvinced about the desirability and viability of Iraq’s independence. Britain’s desire to evade international control and continue its domination and exploitation of Iraq on the cheap was an open secret. Nevertheless, the presumed good faith of the mandatory power that was inherent in the design of the mandate and the gentlemanly deference exhibited amongst former and current colonial administrators made it difficult to voice these concerns emphatically, even though subtle hints were included in the reports and speeches of the non-British members of the PMC who got involved in the process.133 Nonetheless, the co-existence of the ‘logic of biology’ and the ‘logic of improvement’ in the text of Article 22, in the work of the PMC, and international law and administration as a whole meant that Iraq’s continued dependence on Britain and its perceived inferior administrative capacity were not sufficient reasons to oppose the termination of the mandate. Rather, those sceptical of the move, emphasised factual uncertainties, especially since Britain, like all mandatory powers, tightly controlled the flow of information out of their mandated territories. 131

132

133

James C. Hales, ‘Some Legal Aspects of the Mandate System: Sovereignty, Nationality, Termination and Transfer’ (1937) 23 Transactions of the Grotius Society 85–126, 116. On conditioning Ethiopia’s admission to the League upon the abolition of slavery and the ways these conditions enabled Italy to justify its invasion, see: Parfitt, The Process of International Legal Reproduction, pp. 289–93. ‘M. Palacios and other members were clearly concerned lest Iraq should merely change from a mandated territory to a British protectorate “thus escaping from the international control existing under the present system.”’ Wright, ‘The Proposed Termination’, 442.

. 



Therefore, there was no principled argument readily available to the opponents of emancipation, and their factual objections were confronted with the privileged position of the mandatory power in regard to the collection, manipulation and communication of data regarding Iraq, which enabled Britain to control the narrative effectively. Naturally, Iraq’s subsequent encounters with the international legal order cannot be reduced to its origins as an independent state. However, as Natarajan has argued convincingly, there was something eerily familiar to those aware of the state’s history in the 2003–2004 disciplinary debates about Iraq’s invasion and transformation.134 These inheritances will be explored in greater detail in Chapter 5.

3.6 Conclusion In this chapter I argued that we ought to take the institutional life of ‘civilisation’ seriously. By tracing the debates surrounding the Mandate System, I showed that the League of Nations both inherited and profoundly transformed this central argumentative pattern. In this respect, Michael Fakhri’s observation about the meaning of ‘free trade’ being dependent upon ‘the struggles, arguments, and compromises that lead to the creation and operation of an institution’ is also relevant in regard to ‘civilisation’.135 Through the workings of the Permanent Mandates Commission, its contours were constantly refined and redefined as a wide range of actors articulated their positions in reference to ‘the sacred trust’. Notably, the interwar period witnessed the evolution of the requirements attached to the ‘logic of improvement’: as the capitalist state and the discourses surrounding it evolved, welfarism entered the international legal argument. In that context, for non-Western states to seek emancipation, they had to at least nominally comply with some basic standards of welfare provision. At the same time, through the work of the PMC the ‘standard of civilisation’ entered a long period of transformation that is still relevant. The gathering of impressive volumes of information, the promulgation of standards, and the rise of statistics as

134

135

‘While the invasion was seen by many as an affront to international law, there was also something faintly familiar about the Coalition’s reasoning for the invasion. This feeling of deja vu escalated once regime change was followed by lengthy nation-building.’ Natarajan, ‘Creating and Recreating Iraq’, 799. Michael Fakhri, Sugar and the Making of International Trade Law (Cambridge: Cambridge University Press 2014) p. 10.



   

part of international governance began to strip ‘civilisation’ from its overtly racist and moralistic undertones and it re-orientated its definition and verification towards technocratic methods and vocabularies. Relatedly, this transformation enabled the invisibilisation of the ‘civilising mission’ and, thereby, its continuation. There is something discomforting (or ironic, depending on one’s dispositions) in reading and writing about an institutionalised liberal order on the verge of collapse as another such order is facing unprecedented challenges. This discomfort partly stems from the following: the international legal arguments of the League did not appear out of thin air in 1919 neither did they magically disappear in 1945. Rather, the lawyers and bureaucrats of the League inherited their argumentative patterns from the nineteenth-century international order that they claimed to have overcome. ‘Civilisation’ was principal amongst these patterns. At the same time, with the authority of the League in decline, the future of ‘civilisation’ was up for grabs. Some decided to do away with the ‘niceties’ of the ‘logic of improvement’. In their worldview, it was going to be biology all the way down.136 Their opponents, a strange alliance of liberals, conservatives and communists, won the war and established a new international legal order, in which explicit references to the ‘standard of civilisation’ became increasingly intolerable. Nonetheless, as I will explain in Chapter 4, there was one major international legal battle left to be waged explicitly in the name of ‘civilisation’ and it, unsurprisingly, had its origins in the Mandate System. Unwilling to accept the transition to a different, more subtle form of racial oppression and exploitation, South Africa attempted to exploit uncertainties over the survival of the Mandate System and annex its mandate, South West Africa. The ebbs and flows of the South West Africa saga are the focus of the next chapter. 136

Felix Lange, ‘The Dream of a Völkisch Colonial Empire: International Law and Colonial Law during the National Socialist Era’ (2017) 5 London Review of International Law 343–69.

4 Arguing with Borrowed Concepts ‘The Sacred Trust of Civilisation’ in the South West Africa Saga But victories in international law alone do not liberate a colonised people from their oppressors. The people of Namibia have never recognised the right of successive colonial regimes to rule them; and their right to self-determination is quite independent of the niceties of international law. Indeed, the legal battles of the past quarter century have often masked the nature of the power struggles which have decided the fate of Namibia. South West Africa Peoples’ Organisation (SWAPO) (1981)1

The process of decolonisation was many things: an unexpected revolution of historic proportions, a ‘drama of competing visions’,2 an unprecedented proliferation of the form of the nation-state on a global scale, a largely missed opportunity to craft a wholly new international economic and political order,3 a challenge to the global racial order, and, finally, a major juridical event. Post-colonial critics have persuasively rebutted the argument that the UN Charter signified a clean break with colonial international law, or even that it stands in a causal relationship with decolonisation.4 This deconstruction of the discipline’s mythologies does not negate the fact that international law had an important role to play during this major confrontation. As they put forward different visions for the emerging international order, Third World actors articulated arguments through the language of international law, while often seeking to

1

2

3

4

Department of Information and Publicity, SWAPO of Namibia, To Be Born a Nation: The Liberation Struggle for Namibia (London: Zed Press 1981) p. 122. Frederik Cooper, ‘Possibility and Constraint: African Independence in Historical Perspective’ (2008) 49 The Journal of African History 167–97, 176. For an account of decolonisation as a project of international ordering and not as a simple process of universalisation of the nation-state, see: Adom Getachew, Worldmaking after Empire: The Rise and Fall of Self-Determination (Princeton, NJ: Princeton University Press 2019). See for example, Sundhya Pahuja, Decolonising International Law: Development, Economic Growth and the Politics of Universality (Cambridge: Cambridge University Press 2011).





   

radically challenge and reform it. It was precisely thanks to the advocacy of Third World lawyers, often in coordination with the representatives of the Eastern Block, that explicit invocations of the ‘standard of civilisation’ became less and less frequent. Indeed, Third World and socialist lawyers challenged not only the specific language of ‘civilisation’ but also – to an extent – the style of arguing that was encapsulated by this language: a constant oscillation between a ‘logic of biology’ and a ‘logic of improvement’. As this chapter will demonstrate, the reformers’ efforts to challenge this argumentative structure were innovative and forceful, yet ultimately unsuccessful. To do so, I will revisit the South West Africa saga, a series of cases and advisory opinions that were issued by the International Court of Justice (ICJ) and captured the international imagination of both supporters and opponents of decolonisation, racial segregation, and capitalism (in all their possible combinations). At the heart of the judicial dispute lay the question of whether the mandates’ ‘sacred trust of civilisation’ was justiciable at all, if so, who was legally entitled to seek its judicial determination, and, finally, what was its substantive content. The controversy was of major political importance in the context of the combined ascendance of the Cold War and decolonisation. It also constituted the testing ground for the potential and limits of international law in serving the interests and goals of the decolonised world. It was, therefore, unsurprising that a multitude of international actors got involved in the dispute and used, amongst other things, the language of international law in order to push for their position. This chapter stresses the importance of the fact that despite its relative rhetorical decline, ‘civilisation’ was at the heart of the most protracted and controversial dispute in front of the ICJ and served as a primary locus for legalised struggles about decolonisation in Africa. Interestingly, Liberia and Ethiopia initially attempted to use ‘civilisation’ against the grain: their 1966 memorials described in detail the prevailing socio-economic conditions in South West Africa emphasising the intersection between racial oppression, land dispossession, and wage labour. Turning the argumentative pattern of the ‘standard of civilisation’ on its head, the applicants argued that the precise form of racial capitalism imposed by South Africa over its mandate was a flagrant violation of the ‘sacred trust’. Thus, revisiting the South West Africa saga shows that ‘civilisation’ remained relevant after 1945 and the promulgation of the UN Charter. Moreover, by mapping the arguments of the parties, of other concerned states’ briefs, and of the Court’s shifting majorities and minorities, I inquire into the limitations of tactical deployments of the concept by

.   &    



the Global South as well as the emergence of other styles of arguing that competed for hegemony in a context of legal uncertainty and change. In so doing, I will try to understand how ‘civilisation’, as an argumentative pattern that constantly oscillated between two competing logics, improvement and biology, survived the demise of its explicit invocations and, therefore, still shapes contemporary international law.

4.1

International Law and the End of Formal Empires

Comprehending the South West Africa saga requires that we appreciate the tectonic shifts in international law and politics that took place during the first few post-war decades, and above all, the complicated nexus between international law and decolonisation. Following critical scholarship, I argue that the significance of international law in the process of decolonisation is both over- and underestimated.5 It is overestimated to the extent that post-factum mythology attributes the dissolution of formal empires to the UN Charter (the Charter) and the Universal Declaration of Human Rights (UDHR). In fact, neither of these documents demanded the end of the colonial project. The UDHR urged for the enjoyment of human rights without distinction ‘on the basis of the political, jurisdictional or international status of the country or territory to which a person belongs, whether it be independent, trust, non-selfgoverning or under any other limitation of sovereignty’.6 Hence, colonialism and other forms of foreign domination were not denounced; nor were they conceptualised as violations of rights as such, but rather as neutral political backgrounds for the enjoyment of such rights. In fact, the language of ‘civilisation’ was omitted from the text of the UDHR only after the protestations of the Soviet delegate. Further, although the Charter included certain references to ‘self-determination’, this was conceptualised as a principle and not as a right.7 Moreover, Article 77 practically exempted the Allies’ colonies from the trusteeship system, the UN 5 6

7

Ibid., p. 45. Universal Declaration of Human Rights (adopted 10 December 1948) UNGA Res 217 A (III) (UDHR) art. 2. Article 2(1) of the UN Charter states that one of the main purposes of the organisation is ‘[t]o develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, and to take other appropriate measures to strengthen universal peace.’ The introductory sentence of Article 55 also reads as follows: ‘With a view to the creation of conditions of stability and wellbeing which are necessary for peaceful and friendly relations among nations based on respect for the principle of



   

successor to the mandates, making their inclusion voluntary.8 In fact, France and the United Kingdom staunchly resisted any attempt to include their colonies in the trusteeship system by invoking the principle of non-interference in states’ domestic affairs.9 In San Francisco, France articulated an indirect but clear defence of its colonial enterprise: ‘France recognized the value of a trusteeship system, but remarked that it was not the only way of promoting the development of dependent peoples.’10 Therefore, one of the most controversial topics of the negotiation process for Article 77 was resolved in favour of imperial powers.11 Crucially, the Charter did not commit itself to the independence of colonies, at least not in the foreseeable future. Independence was not explicitly mentioned as the ultimate goal regarding non-governing territories at all. With regard to the trusteeship system, independence was mentioned as one possible outcome, along with self-government, a choice signalling no substantial progress in comparison to its interwar precedent.12 Again, the two major colonial powers of the time, France and the United Kingdom, played a central role in the undermining of any effort to promote independence as the ultimate goal of the trusteeship system. It is telling that the United Kingdom ‘warned the Committee against confusing independence with liberty. What the dependent peoples wanted was an increasing measure of self-government; independence would come, if at all, by natural

8

9

10 11

12

equal rights and self-determination of peoples . . .’ Charter of the United Nations (adopted 26 June 1945, entered into force 24 October 1945) 1 UNTS XVI (UN Charter) art. 2(1). Article 77(1) of the Charter stipulated that ‘[t]he trusteeship system shall apply to such territories in the following categories as may be placed thereunder by means of trusteeship agreements: a. territories now held under mandate; b. territories which may be detached from enemy states as a result of the Second World War; and c. territories voluntarily placed under the system by states responsible for their administration.’ Ibid., art. 77(1). United Nations, Documents of the United Nations Conference on International Organization, San Francisco, 1945 (New York/London: United Nations Information Organizations 1945) (UNCIO) vol. 10, p. 433, p. 440. Ibid., p. 443. The delegate of Australia summarised the importance of the disagreement as follows: ‘The principal issue before this Committee . . . was whether the application of the trusteeship system to territories other than League Mandates and ex-enemy dependencies should be left to the voluntary action of the powers responsible for their administration. In the Australian view, a merely voluntary procedure was inadequate.’ Ibid., pp. 428–9. Article 73(b) imposed upon states administering non-self-governing territories the obligation ‘to develop self-government, to take due account of the political aspirations of the peoples, and to assist them in the progressive development of their free political institutions, according to the particular circumstances of each territory and its peoples and their varying stages of advancement.’ UN Charter, art. 73(b).

.   &    



development.’13 What was perhaps more promising in comparison to the Mandate System was that the Trusteeship Council was not comprised of civil servants but of representatives of UN member states, ‘thus politicizing empire, putting the colonial powers in the minority, and increasing the likelihood of extensive public discussion of their policies’.14 Overall, the basic post-war international legal documents reflected a delicate balance of power between the will of European powers to maintain their empires, American antipathy towards overt imperialism and the anxiety that rapid, uncontrolled decolonisation would make available space for the expansion of the Soviet Union and, more broadly, socialism and communism. These tensions were clear in the drafting process of the Charter. On the one hand, the representative of the Soviet Union ‘emphasized the importance of independence’15 for entrusted territories, and the Philippines invoked the common war effort against Nazism and fascism to legitimise colonised peoples’ demands for selfdetermination.16 On the other hand, the United Kingdom rejected the idea of independence, at least as a general prescription, and insisted that such determinations should be made on a case-by-case basis. Overall, it is difficult to argue that the UN Charter and the international legal order that emerged in the immediate aftermath of the Second World War were inherently anti-imperialist. Nonetheless, according to Pahuja, international law marked the course that decolonisation took by providing the vocabulary and conceptual tools for colonised peoples to articulate their aspirations and to render them intelligible in the international legal and political arena. In Pahuja’s words, international law ‘was already the universal juridical frame covering the globe. This coverage meant that international law could provide a structure by which the heterogeneous movements for decolonisation could be smoothed into a coherent story’ and ‘be contained within the broader frameworks set by Western interests’.17 Thus, on one hand, whilst international law provided a language in which claims for decolonisation could gain a certain audibility, on the other, it locked in

13 14

15 16

17

UNCIO, vol. 10, p. 440. Mark Mazower, Governing the World: The History of an Idea (New York: Penguin 2012) p. 253. UNCIO, vol. 10, p. 441. ‘Peoples all over the world have been given new hope of freedom by this war, and this hope should not be disappointed.’ Ibid., p. 562. Pahuja, Decolonising International Law, p. 45.



   

national statehood as the only way to claim legal personality.18 Both the universal reach and the claim to universality of international law provided a framework for decolonisation to take place, while defining the limits of this process at the same time. Be that as it may, colonised and racialised peoples around the world chose to mobilise international law, albeit to varying degrees and with different levels of commitment, in order to fight against their oppression.19 This trend involved newly independent states, such as India, advocating for the rights of their compatriots abroad,20 and peoples under international tutelage submitting petitions protesting the violation of their human rights.21 Even though the engagement of nonWesterners with international law was certainly not new, their confidence was boosted by the gradual unravelling of formal empires, which steadily increased the numbers of post-colonial states in the United Nations, and by the sympathetic attitude of the Eastern Block, which voted consistently with them. Furthermore, since the Bandung Conference of 1955, a strong sense of solidarity and collective purpose emerged amongst post-colonial states,22 which later found expression in various 18 19

20

21

22

Ibid. The most comprehensive history to date of different strands of Third Worldism and their relationship with international law is: Robert Knox, A Critical Examination of the Concept of Imperialism in Marxist and Third World Approaches to International Law (PhD Thesis, London School of Economics and Political Science 2014). On India’s unexpectedly successful recourse to the UN General Assembly against the treatment of Indians in South Africa and for the ways it changed the organisation, see Mark Mazower, No Enchanted Palace: The End of Empire and the Ideological Origins of the United Nations (Princeton, NJ/Oxford: Princeton University Press 2009) pp. 149–89. Focusing on the Cameroon, Meredith Terretta has demonstrated that the language of human rights occupied an important role in these legal struggles: Meredith Terretta, ‘“We Had Been Fooled into Thinking That the UN Watches over the Entire World”: Human Rights, UN Trust Territories, and Africa’s Decolonization’ (2012) 34 Human Rights Quarterly 329–60; Meredith Terretta, ‘Cause Lawyering et Anticolonialisme: Activisme Politique et État de Droit dans l’Afrique Française, 1946–1960’ (2013) 138(2) Politique Africaine 25–48. Terretta is, of course, pushing back against Samuel Moyn’s argument that human rights played a negligible role in the struggles for decolonisation: Samuel Moyn, The Last Utopia: Human Rights in History (Cambridge, MA: Harvard University Press 2012). The editors of a recent comprehensive volume on the conference offered a rich and ambivalent account of the event but they were clear about one thing: ‘This sense of possibility, of beginning to imagine and create the world anew, is another of Bandung’s enduring legacies.’ Luis Eslava, Michael Fakhri and Vasuki Nesiah, ‘The Spirit of Bandung’ in Luis Eslava, Michael Fakhri and Vasuki Nesiah (eds.), Bandung, Global History and International Law: Critical Pasts and Pending Futures (Cambridge: Cambridge University Press 2017) 3–32, p. 24.

.   &    



loose yet influential political alliances, including the Non-Aligned Movement and the G77. The initiative to establish a New International Economic Order (NIEO) in the 1970s was the apogee of the Third Worldist project in the scene of international politics, and its ambitions for international legal reform in particular.23 These reforms concerned not only the substantive content of international law but the very process of law-making. The question was whether the will of the newly formed majority of states as expressed through UN General Assembly resolutions could be a binding source of law despite the sovereign will of a handful of Western states. Even though the judicial life of the South West Africa saga was concluded with the advisory opinion of 1971, shortly before the formal launch of the NIEO three years later, it raised important questions about international legal law-making, the relationship between ‘old’ and ‘new’ international law, and the limitations of working through international legal institutions to counter imperialism and overt racism. South Africa’s staunch refusal to accommodate the new realities of a decolonising world was, indeed, a thorn on the side of the Third World. In 1946, India managed to have discrimination against their co-patriots in South Africa condemned at the UN General Assembly. This was a twist that shocked the representatives of South Africa. It also persuaded the Third World that the United Nations was not a reincarnation of the League of Nations (League) and could be mobilised to promote their interests.24 Simultaneously, the inactivity of the UN Security Council and the invocation of the rule of non-interference in domestic affairs posed limits to the efforts of countering racial discrimination through international legal channels. The election of the Nationalist Party to government in 1948 aggravated the position of all racialised peoples in South Africa with the 23

24

In recent years, there has been renewed interest in the NIEO amongst international lawyers and historians alike. Amongst many see: Vanessa Ogle, ‘State Rights against Private Capital: The “New International Economic Order” and the Struggle over Aid, Trade and Foreign Investment, 1962–1981’ (2014) 5 Humanity: An International Journal of Human Rights, Humanitarianism, and Development 211–34; Margot Salomon, ‘From NIEO to Now and the Unfinishable Story of Economic Justice’ (2013) 62 International and Comparative Law Quarterly 31–54; Umut Özsu, ‘“In the Interests of Mankind as a Whole”: Mohammed Bedjaoui’s New International Economic Order’ (2015) 6 Humanity: An International Journal of Human Rights, Humanitarianism, and Development 129–43; Christy Thornton, ‘A Mexican International Economic Order? Tracing the Hidden Roots of the Charter of Economic Rights and Duties of States’ (2018) 9 Humanity: An International Journal of Human Rights, Humanitarianism, and Development 389–421. Mazower, Governing the World, p. 185.



   

formalisation and intensification of their oppression through the policies of apartheid. That said, even before this hardening of South African right-wing politics, the Smuts government had declared its unwillingness to submit the mandate of South West Africa to international trusteeship under the Charter and its intention to annex the territory as its fifth province. As we saw in Chapter 3, the annexationist tendencies of South Africa were not new. Despite the fact that they had caused friction with and within the Permanent Mandates Commission (PMC),25 they were also enabled by the ambiguous structure of the C Mandates, which were supposed to be administered as internal parts of the mandatory’s territory.26 The principal legal argument of South Africa was that since the dissolution of the League, the mandate had lapsed and, therefore, there were no legal impediments to the annexation of the territory: At the moment of dissolution of the League . . . the mandates lapsed and the Covenant itself ceased to be a legally valid document. It follows, therefore, that such international legal rights as the inhabitants of mandated territories might have claimed during the existence of the League, ceased to exist upon the dissolution of the League.27

Pretoria also invoked the already existing geographical and administrative proximity with South West Africa as well as its supposed civilising influence on the native populations as political justifications for this move. Even though these annexationist tendencies were seen as deviations from the spirit and letter of the mandates, above all by the Third World states and peoples resisting them, Woodrow Wilson himself had fuelled these ambitions stating, for example, in a quite literally paternalistic formulation often repeated by Pretoria that: ‘If South Africa managed South West Africa as well as she had managed her own country, then she would be married to South West Africa.’28 Moreover, South 25

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South Africa’s tendency to claim sovereignty over its mandate both in its domestic legislation and in international agreements, notably a border settlement with Angola, stirred controversy with the Permanent Mandates Commission and pushed them to clarify that sovereignty did not lie with the mandatories: Susan Pedersen, ‘The Struggle over Sovereignty’ in The Guardians: The League of Nations and the Crisis of Empire (Oxford: Oxford University Press 2015) 204–32. Cait Storr, ‘“Imperium in Imperio”: Sub-Imperialism and the Formation of Australia as a Subject of International Law’ (2018) 19 Melbourne Journal of International Law 335–68, 363–5. ‘Statement by Dr Steyn (South Africa)’, International Status of South West Africa [1950] ICJ Pleadings 273, 290. United States Department of State, Papers Relating to the Foreign Relations of the United States (FRUS), 1919: The Paris Peace Conference (Washington: Government Printing Office 1943) vol. 3, p. 785.

.   &    



Africa tried to court the spirit of the times arguing that both the ‘native’ and white inhabitants of the territory had expressed their opinion in support of the annexation. This was certainly untrue in regard to the black population, but South African falsehoods were enabled by the lack of reliable information on the country and the severe movement restrictions imposed on its black population. Such was the reaction to this prospect of annexation that in 1946 the then president of the African National Congress, Dr Xuma, wrote a lengthy letter to the United Nations opposing the annexation plans. His letter was a detailed exposition of the evils of racial discrimination in South Africa, which focused heavily on questions of labour exploitation and repression.29 Stressing the fact that he could not attend the United Nations in person to make his case because of his country’s refusal to issue passports to its black population,30 Xuma pronounced that: ‘to Native Africans the case of incorporation of South West Africa and the Asiatic Act against the Indians in South Africa are a test of the seriousness and sincerity of the United Nations’,31 a prediction that turned out to be of lasting relevance. Xuma concluded his letter stating that nothing less was at stake than whether ‘the United Nations [will] adopt as their motto: “Might is Right” or “Right is Might”’.32 Western powers maintained an ambivalent position towards South Africa’s annexationist plans. On the one hand, open support for either apartheid or the incorporation of South West Africa was not an easily available option, especially as the rhetoric and practice of the National Party hardened and increasingly fell out of step with the egalitarian language (if nothing else) of international politics. Particularly in the case of the United States, its anti-imperial posturing and its determination not to burn any bridges with colonised peoples, especially in the context of the Cold War, as well as the pressure from African Americans at home, meant that some distance from the most extreme

29

30

31 32

Alfred Bitini Xuma, South West Africa: Annexation or United Nations Trusteeship? (New York: South African Passive Resistance Council 1946). Ibid., p. 5. For the same reason, Namibians relied heavily on foreign organisations and individuals to make their case in front of the United Nations. For an exposition of the influential role of the International League of Human Rights and of the radical Anglican priest Reverend Michael Scott, see: Roger S. Clark, ‘The International League for Human Rights and South West Africa 1947–1957: The Human Rights NGO as Catalyst in the International Legal Process’ (1981) 3(4) Human Rights Quarterly 101–36. Xuma, South West Africa, p. 27. Ibid.



   

manifestations of apartheid and imperialism was necessary. This ambivalence also reflected internal divisions within the United States that reflected not only changing administrations, but also different parts of the state apparatus.33 Concerns that rapid and uncontrolled decolonisation would become the ground for the spread of communism were central to the formulation of US policies towards South Africa. At the same time, the United Kingdom was not only a colonial power itself, one that proved unwilling to give up on its overseas possessions without a fight, but it also had close commercial ties with South Africa, being, in fact, its primary trading partner. Importantly, the major capitalist sectors of South West Africa, notably mining, were dominated by foreign capital, which made Western countries unwilling to support fundamental change, especially as the national liberation movement of the country moved to the left. The United States and the United Kingdom repeatedly blocked efforts to qualify the situation in southern Africa as a ‘threat to international peace and security’ in the UN Security Council and therefore, to take forcible measures against the apartheid regime. In turn, South Africa cleverly emphasised the peril of communist contamination at every turn, including in front of the ICJ, as we will see later on in this chapter. Overall, the determination of the Third World to prevent the annexation and also to use South West Africa as a means for attacking apartheid as a whole, the ambivalence and foot-dragging of the United States and the United Kingdom, and the intransigence of South Africa that sincerely saw itself as an island of ‘white civilisation in a savage continent’,34 paved the way for the judicialisation of the dispute and the clash of competing arguments regarding ‘civilisation’.

4.2 From ‘Civilisation’ to Human Rights: Shifting Grounds of International Legal Argumentation The declaration of President Zafrulla Khan attached to the 1971 ICJ advisory opinion on the Legal Consequences for States of the Continued Presence of South Africa in Namibia was one of the last judicial 33

34

For the political stakes of the litigation in front of the ICJ, with an emphasis on the United States, see: Ryan M. Irwin, ‘Apartheid on Trial: South West Africa and the International Court of Justice, 1960–66’ (2010) 32 The International History Review 619–42. This was General Smuts’ formulation in the Paris Peace Conference: FRUS: The Paris Peace Conference, vol. 3, p. 723.

.  ‘’   



pronouncements on the issue. Judge Khan concluded with a somewhat curious note. Quoting approvingly the Director of the Institute of Race Relations in London, he maintained that ‘the aspect of South African thought which is widely questioned elsewhere is the assumption that an individual is permanently limited by the limitations of his group.’35 Apartheid was, in other words, problematic because it precluded exceptional black individuals from transcending the supposedly very real limitations of their race and participating as equals in the structures of white politics, economy and society. Applauded as a victory against apartheid and imperialism, and as a manifestation of the Court’s ‘true voice’36 after the embarrassing events of 1966, the advisory opinion had nonetheless shifted, and indeed narrowed considerably, the terms of the conversation. As we will see in detail below, in 1966 the applicants had brought a case that carefully linked labour exploitation, land dispossession and racial discrimination in South West Africa, constructing an argument that exposed the workings of racial capitalism and presented them as a violation of the ‘sacred trust of civilisation’. By 1971, apartheid was indeed condemned, but the big picture had vanished, and the ICJ put forward a particular vision of human rights that was largely agnostic about the political economy of the former mandate and rather focused on formal legal arrangements: Under the Charter of the United Nations, the former Mandatory has pledged to observe and respect, in a territory having an international status, human rights and fundamental freedoms for all without distinction as to race. To establish instead, and to enforce, distinctions, exclusions, restrictions and limitations exclusively based on grounds of race, colour, descent or national or ethnic origin which constitute a denial of fundamental rights is a flagrant violation of the purposes and principles of the Charter.37

35

36

37

Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (Advisory Opinion) [1971] ICJ Rep 16 (Legal Consequences), 63 (declaration by President Sir Muhammad Zafrulla Khan). For a sympathetic, if somewhat speculative, account of Khan’s role in the saga, see: Victor Kattan, ‘Decolonizing the International Court of Justice: The Experience of Judge Sir Muhammed Zafrulla Khan in the South West Africa Cases’ (2015) 5 Asian Journal of International Law 310–55. Rosalyn Higgins, ‘The International Court of Justice and Africa’ in Themes and Theories: Selected Essays, Speeches and Writings in International Law (Oxford: Oxford University Press 2009) 1056–80, p. 1071. Legal Consequences, 57 [131].



   

This narrowing of the legal issue at stake paved the way for the supervised independence of Namibia and the international drafting of a constitution friendly to foreign investors and (white) private property rights.38 To recall the framing of Susan Marks, the turn to human rights served as a direct antagonist to legal arguments that addressed the root causes of the situation in Namibia.39

4.2.1 The 1950s Advisory Opinion: ‘Civilisation’ as an International Legal Institution The shift from opposition to racial capitalism to a narrow embrace of rights did not occur overnight. It was the outcome of judicial divisions, pressure from South Africa, as well as the consequence of the antinomies of the applicants’ arguments. The applicants tried to mobilise the language of ‘civilisation’ to counter the workings of racial capitalism only to find themselves trapped in the oscillations of its argumentative structure: an endless conundrum between the ‘logic of biology’ and the ‘logic of improvement’. In this respect, my analysis is in agreement with Koskenniemi’s observation that critics of the 1966 ruling or the 1971 opinion assume that the ICJ must have got the law wrong on one of these occasions suppressing the fact that ‘it is the law itself which is contradictory’.40 As a result, what I am interested in is not to argue about the rightness or wrongness of one or the other judicial pronouncement, but rather in discerning the ways the parties, the intervening states and the judges went about arguing about the ‘sacred trust of civilisation’ and, importantly, the ways in which this pattern was formally abandoned only to resurface reformulated in the process of Namibian independence. 38

39 40

Even though Article 98 of Namibia’s constitution provides for a ‘mixed’ economy combining characteristics of socialism and capitalism, in reality the strong private property protections of the same document have impeded the much needed land reform and entrenched racial and class inequalities in the country. For an invocation of the Constitution against such reforms, see: David Shriver, ‘Rectifying Land Ownership Disparities through Expropriations: Why Recent Land Reform Measures in Namibia Are Unconstitutional and Unnecessary’ (2005) 15 Transnational Law and Contemporary Problems 419–55. For further analysis on the constitution-making process in Namibia as a way of circumscribing the country’s independence and re-enacting the ‘standard of civilisation’, see Section 4.3 of this chapter. Susan Marks, ‘Human Rights and Root Causes’ (2011) 74 Modern Law Review 57–78. Martti Koskenniemi, From Apology to Utopia: The Structure of International Legal Argument (Cambridge: Cambridge University Press 2005) p. 459 (emphasis as in the original).

.  ‘’   



However, before these arguments were mobilised by the parties at all, a more fundamental question demanded an answer: did the Mandate survive the demise of the League in the first place, and if it did, what was the nexus of obligations it established for the mandatory power? Before 1950, the position of South Africa was somewhat inconsistent. Its insistence that the mandate had lapsed was accompanied by pronouncements that it would nonetheless govern South West Africa in conformity with the spirit of the mandate, and it submitted a report to the United Nations in 1946.41 The harsh criticism said report attracted made it clear that the Trusteeship Council would not be as deferential and diplomatic towards mandatories as the PMC. This provoked the ire of South Africa, which declared that it considered the mandate legally non-existent and it would, therefore, not submit any other reports in the future. The intransigence of South Africa was a source of concern both for post-colonial states and for the West, who could not afford to have the authority of the newly established organisation so openly defied. Nonetheless, this impasse was enabled by the juridical arrangements regarding the mandates. First, the founders of the United Nations did not make the organisation the legal successor of the League, meaning that the survival of the mandate and especially of its supervisory aspects was not selfevident. Second, the language of Article 75, which dealt with the transition from mandates to trusteeships, was ambiguous. In 1950, the ICJ adopted by eight votes to six a textualist approach to the provision, which read as follows: ‘The United Nations shall establish under its authority an international trusteeship system for the administration and supervision of such territories as may be placed thereunder by subsequent individual agreements’, thereby ruling that the mandatories were under no legal obligation to place mandated territories under the new trusteeship system.42 Perhaps most importantly, the persistence of explicit ideas of racial hierarchy and backwardness rendered the attitude of South Africa less of an outlier in the early post-war scene than is commonly assumed. For example, UN General Assembly Resolution 65(I) (1946) rejected the results of the referendum supporting the annexation of South West

41

42

For an overview of the events before 1950, see: Solomon Slomin, ‘United Nations Efforts to Convert the Mandate of South West Africa into a Trust Territory’ in South West Africa and the United Nations: An International Mandate in Dispute (Baltimore, MD/London: John Hopkins University Press 1973) 75–109. International Status of South West Africa (Advisory Opinion) [1950] ICJ Rep 128 (International Status), 144.



   

Africa: ‘[c]onsidering that the African inhabitants of South West Africa have not yet secured political autonomy or reached a stage of political development enabling them to express a considered opinion which the Assembly could recognise.’43 Throughout the controversy, the idea that black Namibians were fundamentally unable to govern themselves was omnipresent in the workings of the United Nations and, regardless of the conscious intentions of the drafters of these texts, facilitated and legitimised South Africa’s attitude towards the territory, since it could (and did) contend that apartheid was nothing but the most faithful application of principles that pervaded the Mandate System and even the UN Charter. It was within this legal context that the ICJ was asked by the UN General Assembly to pronounce on the legal status of South West Africa, as well as on the lawfully available options for its administration. Apart from South Africa, many then independent states submitted written statements to the ICJ. Despite partial differences, everyone except for South Africa agreed on the following points. First, the authority of South Africa over South West Africa was dependent on the continuing existence of the mandate. Therefore, if the mandate had indeed lapsed, as Pretoria argued, so had its lawful presence in the territory.44 Second, these submissions constructed arguments about the ‘sacred trust of civilisation’ as a nexus of procedural and substantive obligations guaranteed by the League. ‘Civilisation’, therefore, became not only a matter of racial superiority/inferiority and capitalist transformation, but was also understood to have administrative dimensions. In fact, as we saw in Chapter 3, this turn towards administration was the principal impact of the encounter between the ‘standard of civilisation’ and the League. Following on from the assumption of Resolution 65(I) that we just discussed, Egypt endorsed the language of political immaturity inherent in Article 22 of the League Covenant in order to establish the supervisory functions of the United Nations: ‘The United Nations has inherited the powers of the “sacred trust of civilisation” of the League of Nations in regards to peoples still not able to stand by themselves.’45 Further developing this point, the representative of India suggested that the League was nothing less than ‘an instrument of civilization’, the end43 44

45

Future Status of South West Africa, UNGA Res 65(I) (14 December 1946). ‘Written Statement of the USA’, International Status of South West Africa [1950] ICJ Pleadings 85, 104. ‘Exposé du Gouvernement Égyptien’, International Status of South West Africa [1950] ICJ Pleadings 67, 70 (original in French, translation my own).

.  ‘’   



goal of which was independence.46 It performed this civilising function, according to the United States, through its reporting function that guaranteed the faithful performance of the mandate to the international community.47 South Africa adopted a diametrically opposite position. Instead of seeking to ground its authority over the territory in international law, it rather maintained that there were at present no international legal limitations to its relationship with South West Africa, since the League had ceased to exist.48 Furthermore, it argued that the international community was a legal nullity. Rather, its obligations as a mandatory were owed to the League and were accordingly extinguished with the League’s dissolution. Finally, South Africa maintained that the ‘sacred trust of civilisation’ was a political rather than a legal notion, and therefore, it was not fit for judicial determination. In fact, Pretoria insisted throughout the proceedings that even though it did have civilising obligations towards the mandate, these obligations were emphatically not international legal ones.49 The 1950 advisory opinion mostly rejected South Africa’s contentions. The ICJ unanimously declared that the mandate was still in force. Importantly, it determined that the ‘sacred trust of civilisation’ was the object of the mandate and it was a fundamentally international one.50 As such, the mandate gave rise to two different sets of obligations. On the one hand, the mandatory was under a substantive international legal obligation to promote the well-being and development of the peoples under its authority. On the other, the mandatory was obliged to submit regular reports to the Council of the League. From the alleged interconnectedness of these substantive and procedural obligations stemming from the mandate, the majority of the ICJ deduced the conclusion that ‘[t]he necessity for supervision continues to exist despite the disappearance of the supervisory organ.’51 The next question was who would assume these supervisory functions. This was fundamentally linked to another question tackled by the ICJ: was South Africa under an 46

47 48

49 50 51

‘Written Statement of the Government of India’, International Status of South West Africa [1950] ICJ Pleadings 140, 145. ‘Written Statement of the USA’, 107. ‘Statement Union of South Africa’, International Status of South West Africa [1950] ICJ Pleadings 72, 83. ‘Statement by Dr Steyn (South Africa)’, 291. International Status, 133. Ibid.



   

obligation to place its mandate under the supervision of the trusteeship system? As we saw above, the ICJ interpreted the relevant provision of the UN Charter narrowly and concluded that no such obligation existed. Thus even though the trusteeship system was found to discharge a similar (civilising) mission to the Mandates System, the majority of the ICJ nonetheless pronounced that South Africa was under no formal legal obligation to reach an agreement on that front.52 Rather, the UN General Assembly was to operate as the supervisory organ for the mandate. What was almost entirely absent from the advisory opinion was the possibility that Namibia did not need supervision at all, but could become an independent state, or even adopt another form of political organisation altogether, immediately and without any conditions attached to its independence. This conviction was, quite unsurprisingly, at the core of South Africa’s argumentation. Pretoria was adamant that the inhabitants of South West Africa did not have any rights under the Peace Treaty that concluded the First World War, since they lacked international legal personality, and they were never consulted about the establishment of the mandate anyway. Furthermore, South Africa focused on the language of Article 22 in an effort to render the Namibian people invisible. The idea was that even though A mandates were referred to as ‘communities’ and B mandates as ‘peoples’, C mandates were conceptualised only as ‘territories’ devoid of people worthy of any legal consideration – ‘really primitive survivors of the human race’.53 This rhetoric was not entirely out of synch with the mainstream legal opinion of the time. In his dissenting opinion, Judge Alvarez articulated the ‘logic of biology’ in more straightforward terms even than South Africa. Arguing for a solidarist, anti-formalist approach to international law, which renewed the discipline and grounded it on a more positive basis, Alvarez nonetheless adopted our familiar oscillation between ‘improvement’ and ‘biology’. Alvarez talked about a four-fold classification of states that included states that have been backward but have now reached ‘a sufficient degree of civilisation and are fully developed states’.54 However, there was always the possibility that this path of full legal personality through improvement was not open to everyone, and, in fact, in some cases, unsurpassable barriers existed:

52 53 54

Ibid., 144. ‘Statement of Dr Steyn (South Africa)’, 289. International Status, 180 (dissenting opinion of Mr Alvarez).

.  ‘’   



It may happen that the mandatory Power reports that the local population over which it exercises a mandate will never be able, for anthropological or other reasons, to reach a sufficient degree of civilization to become capable of self-government. In that case, the United Nations Assembly should call for an enquiry and if these statements are proved to be true, it may authorize the mandatory Power to annex this territory, for it cannot remain without a protector or a guide.55

The only dissent from these implicit or explicit articulations of the ‘logic of biology’ that rendered unthinkable the idea of independence came from Judge Krylov. Krylov dissented on the question of whether the conclusion of a trusteeship agreement was compulsory for the mandatory power. Even though he agreed that it was not, he insisted that the only other lawful option was immediate and complete independence.56 This was a brief (less than two pages long) and lightly argued dissenting opinion that was not picked up by others. After all, to the extent that supporters of the Namibian cause chose to construct legal arguments in its favour through the language of the Mandate System, they had to accept its commitment to the civilising mission and therefore to its argumentative structure: the Namibian people were accepted to be, albeit temporarily, at a lower stage of civilisation, and it was the job of South Africa under the supervision of the UN General Assembly, to elevate them, taking care of their development and well-being. It would take two more advisory opinions and two court rulings for this tactical engagement with the mandate to be abandoned.

4.2.2 The Politics of Procedure and the ‘Democratisation’ of the Sacred Trust If the purpose of the advisory opinion was to bring South Africa back in line, it failed. This was partly because of the divisions amongst UN member states: on the one hand, a post-colonial block led by India and Brazil favoured the assertive application of the advisory opinion and that the UN General Assembly demand South Africa transmit reports and petitions for the period 1947–1950. On the other hand, a ‘moderate’ group led by the United States proposed consultation and advised against any ‘arbitrary decisions’.57 Since neither group could command a 55 56 57

Ibid., 183. International Status, 191 (dissenting opinion of Judge Krylov). UN GAOR, 4th Comm, 5th sess, 191st mtg (30 November 1950) 323–4.



   

majority, a compromise was reached. An ad hoc committee of five states was to assume both the supervision of the mandate and the negotiations with South Africa about its future. These negotiations proved futile. South Africa offered to negotiate with the winners of the First World War, who had initially decided upon the details of the mandates (France, the United States and the United Kingdom), but it wanted nothing to do with the United Nations. Legally speaking, South Africa justified this position by constantly criticising the legal validity of the ICJ’s opinion and stressing its non-binding status. Somewhere between law and politics lay South Africa’s conviction that the United Nations was fundamentally different from the League, not least because of the composition of its membership. If some supervision was to be tolerated, this had to come from the professional class of empire, as was the case with the PMC. In a propagandist publication, Alexander Steward, a government information officer, raised the point explicitly: The fact is that the United Nations differs fundamentally from the League of Nations and consists of quite different people from those gathered in 1919 in the palace outside Paris . . . Moreover, the supervisory organ of the League of Nations – the Permanent Mandates Commission – consisted of independent experts. The supervisory organs of the United Nations consist of Government representatives, bound to obey their master’s voice.58

Unsurprisingly, the proposal to negotiate only with France, the United States and the United Kingdom was rejected. Shortly after the collapse of this round of negotiations a permanent organ was established to supervise the mandate, the Committee on South West Africa (the Committee). Supervision by analogy to the League’s modalities turned out to be a tricky business. Quickly, the question of voting rules arose. In essence, the issue was whether the UN General Assembly was obliged to follow the unanimity rule of the League or whether it could reach decisions about South West Africa based on its own rules that required a twothirds majority. The UN General Assembly was divided on the question and, therefore, a request for an advisory opinion was submitted to the ICJ. The point of legal contention was whether the adoption of a twothirds majority was in violation of the ICJ’s earlier advice that the UN General Assembly’s supervision should not exceed that under the League.

58

Alexander Steward, The Sacred Trust: South West Africa (Johannesburg: Da Gama Publications 1963) p. 41.

.  ‘’   



Adopting a formalist interpretation, the ICJ advised that the supervisory organ’s internal administrative rules were distinct from the degree of supervision of the mandate, and therefore, there was nothing in its 1950 advisory opinion that militated against the new voting rule.59 This position happily ignored the actual issue at stake: could a majority of post-colonial and socialist states assume control over the supervision of the mandate or did Western powers and, importantly, South Africa have a right to veto unwelcome criticisms and recommendations? In other words, if the supervisory functions of the UN General Assembly guaranteed the ‘sacred trust of civilisation’ who could authoritatively judge whether this ‘civilising mission’ was being carried out faithfully? As we saw in Chapter 2, this was a battle not only over the substantive content of the ‘sacred trust of civilisation’ but also about who got to decide, and even who got a seat at the table in the process. This tension was not a new one. It had run through legal struggles over ‘civilisation’ since the nineteenth century, principal amongst them was the battle over the imposition and abolition of extraterritoriality.60 Far from deciding on an inconsequential technicality, the ICJ had given a crucial, unprecedented power to actors who had been previously considered incapable of making such important judgments. Procedural disagreements with major substantive implications did not end there. Given the persistent non-cooperation of South Africa, the Committee was also confronted with the question of whether it would allow for oral hearings from Namibian petitioners, in order to better appreciate both the prevailing conditions and their concerns. In the absence of unanimity, the question was referred to the UN General Assembly and from there once again to the ICJ. As with the previous advisory opinion, this procedural issue carried notable substantive significance. The PMC had allowed the transmission of petitions, despite the lack of a clear textual basis for this function. However, this process was tightly controlled by the mandatory powers, who were the ones to forward the petitions to the PMC. Furthermore, the PMC rarely found in favour of the petitioners, not least because petitions that questioned the very authority of the mandate were considered inadmissible. Despite the existence of such a restrictive precedent, the majority of the ICJ opined that the possibility of oral hearings was not inconsistent with the 59

60

Voting Procedure on Questions Relating to Reports and Petitions Concerning the Territory of South West Africa (Advisory Opinion) [1955] ICJ Rep 67, 75–6. Chapter 3.



   

1950 pronouncement that the degree of supervision undertaken by the UN General Assembly should not exceed that of the Council of the League. This was because the lack of cooperation by South Africa prevented the effective supervision of the mandate.61 This way the majority opinion struck a delicate balance between the pro-status quo attitude of the 1950 advisory opinion, while also allowing for the relative democratisation of the petitions process and for Namibians to have their voices heard at the United Nations. Nevertheless, legal battles about who decides about the achievement of ‘civilised status’ and therefore the achievement of equal rights and duties under international law did not necessarily lead to the undoing of the standard of civilisation as such. Rather, they often led to a different balance between the two interwoven poles of ‘civilisation’. Put simply, as we already saw in Chapter 2, non-Western lawyers tended to emphasise the ‘logic of improvement’ using internal legal and political reforms as justifications for the ‘elevation’ of their countries to the status of a sovereign nation-state. Western international lawyers, on the other hand, tended to emphasise the ‘logic of biology’ and perpetuate legal inequality, especially when they had conservative political leanings or their authority was being challenged by their non-Western peers.62 However, as I have already suggested, domestic dynamics tending towards capitalism, as well as the dynamics of legal argumentation as such, also led to the adoption of this pattern by post-colonial lawyers. Therefore, the democratisation of the question ‘who decides’ also signified the growing hegemony of ‘civilisation’ as an argumentative pattern in international law. This tendency makes the way Ethiopia and Liberia initially chose to argue their case in front of the ICJ even more striking. When the two African states brought a contentious case against South Africa in front of the ICJ, they used the language of civilisation against the grain to make their case: identifying the intersection between racialisation, labour exploitation and land deprivation in apartheid, the applicants suggested that this practice ran contrary to the ‘sacred trust of civilisation’. In fact, the subsequent modification of the applicants’ position and the adoption of the language of human rights and non-discrimination constituted a shift much more consequential than the one that is commonly discussed in relation to the South West Africa saga, namely the ICJ’s change of 61

62

Admissibility of Hearings of Petitioners by the Committee on South West Africa (Advisory Opinion) [1956] ICJ Rep 23, 31. Chapter 2.

.  ‘’   



heart between 1962 and 1966 about whether the applicants had a legal interest in the faithful execution of the mandate. As is well-known, this decision drew the ire of post-colonial states, who felt that the ICJ’s argumentation was tenuous at best and that the ICJ was not open to their interests and desires.

4.2.3 The Heart of the Matter: The Workings of Racial Capitalism and the ‘Sacred Trust of Civilisation’ The mood was optimistic in the early 1960s when faith in international law’s ability to deliver for the people of Namibia persisted. It was true that South Africa was as intransigent as ever and that its Western allies were not willing to move beyond recommendations and rhetorical condemnation. Nonetheless, the conviction that a binding judgment would put pressure on South Africa, and much more importantly on the two major Western foot-draggers, the United Kingdom and the United States, persisted. The idea was that if apartheid’s opponents obtained a judgment that condemned the racist regime in South West Africa on the merits, they would be able to demand coercive measures in the light of Article 94 of the UN Charter.63 Furthermore, it was clear to everyone involved that such condemnation in relation to South West Africa would have serious implications for South Africa’s domestic policies as well. Therefore, Ethiopia and Liberia, as the only two independent subSaharan African states that were members of the League and of the United Nations, undertook the task of bringing an adversarial case against South Africa’s administration of the mandate. Importantly, this was not an isolated initiative by the two states. It had been discussed and ratified by the Second Conference of Independent African States in Addis Ababa in 1960. What was, therefore, at stake was not only the substance of ‘the sacred trust of civilisation’, but also whether pan-Africanist solidarity combined with League membership was sufficient grounds for demanding its judicial determination and enforcement. In 1962, a slim ICJ majority (eight to seven) determined that it was. The disputed

63

Article 94(2) of the Charter states that: ‘If any party to a case fails to perform the obligations incumbent upon it under a judgment rendered by the Court, the other party may have recourse to the Security Council, which may, if it deems necessary, make recommendations or decide upon measures to be taken to give effect to the judgment.’ UN Charter, art. 94(2).



   

provision was Article 7 paragraph 2 of the South West Africa mandate agreement, which read as follows: The Mandatory agrees that, if any dispute whatever should arise between the Mandatory and another Member of the League of Nations relating to the interpretation or the application of the provisions of the Mandate, such dispute, if it cannot be settled by negotiation, shall be submitted to the Permanent Court of International Justice provided for by Article 14 of the Covenant of the League of Nations.64

Rejecting all four preliminary objections of South Africa, the ICJ pronounced that: ‘[J]udicial protection of the sacred trust in each Mandate was an essential feature of the Mandates System . . . the Permanent Court was to adjudicate and determine any dispute within the meaning of Article 7 of the Mandate.’65 The involved parties, including South Africa, considered the jurisdictional matter settled. Therefore, they proceeded to submit written memorials and to develop oral arguments that focused on the substance of the case: whether South Africa’s administration of South West Africa was in conformity with its civilising mission, which in turn was understood, per Article 2 of the mandate agreement, as being about the promotion of the ‘material and moral well-being and social progress’ of the peoples under mandatory authority. To support their case Ethiopia and Liberia resorted to a detailed exposition of the laws, administrative acts and everyday practices of apartheid. At its core, their memorial was a tactical deployment of the language of ‘civilisation’,66 which not only diverged from the familiar oscillation between ‘improvement’ and ‘biology’ but at times it challenged it at its core. The idea was that South Africa had installed in the mandate a very specific form of racial capitalism in which racial segregation and subordination were inseparable from the exploitation of black labour and the dispossession of native land. In other words, we can read the applicants’ memorial as a detailed exposition of the co-constitution of race and class in the mandate and as an effort to argue that international 64

65

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South West Africa Mandate (confirmed by the League of Nations 17 December 1920) art. 7, para. 2, reprinted in Quincy Wright, Mandates under the League of Nations (Chicago: University of Chicago Press 1930) p. 620. South West Africa (Ethiopia v South Africa, Liberia v South Africa) (Preliminary Objections) [1962] ICJ Rep 319, 336. I am drawing here from Knox’s distinction between strategy and tactics and his cautioning against the uncritical adoption of liberal legalism in the pursuit of short-term political goals in ways that undermine the prospect of structural transformation: Robert Knox, ‘Strategy and Tactics’ (2010) 21 The Finnish Yearbook of International Law 193–230.

.  ‘’   



law should put an end to, instead of aiding and abetting, this coconstitutive relationship.67 For example, the memorial highlighted the fact that despite South Africa’s insistence that apartheid should simply be understood as a policy of separate development of different peoples, the ‘natives’ were an indispensable part of the white (namely, the capitalist) economy of the mandate. However, their participation was only in the form of ‘unskilled’, brutally exploited labour: ‘The Mandatory shaped the circumstances and conditions of labor for the “Native” population into a pattern of constraint and compulsion that consistently subordinated the interests of the “Native” laborers to the interests of their “European” employers.’68 It went on to enumerate these compulsion mechanisms and the disadvantages faced by racialised workers: their residence rights in farms and in the urban Police zone were dependent on their employment status,69 they faced criminal convictions for violations of their employment contracts,70 they worked in the mining industry for lower wages and much lower compensation for sickness,71 and they were legally prevented from joining labour unions.72 Furthermore, the realworld operation of titling and credit provision prevented black Namibians from owning land, even when the prohibition was not formalised. After all, the mandatory administration considered that they ‘have not yet reached the stage of development where they would benefit from individual land ownership’.73 Drawing directly from the findings of the 1950 advisory opinion, the applicants stated that the mandated territories ‘were accorded a distinct international status’,74 which allocated specific responsibilities to South Africa. These responsibilities were, according to the memorial, incompatible with the factual record of the mandatory, who was in essence running the mandate as a racist police state: 67

68

69

70

71 72 73 74

For the most lucid elaboration of the role of international law in this co-constitutive relationship, see: Robert Knox, ‘Valuing Race? Stretched Marxism and the Logic of Imperialism’ (2016) 4 London Review of International Law 81–126. ‘Memorial Submitted by the Government of Ethiopia’, South West Africa (Ethiopia v South Africa, Liberia v South Africa) [1966] 1 ICJ Pleadings 32, 131. ‘Natives’ in the Police Zone had to find employment within fourteen days or leave. Ibid., 126. In 1946 alone, 2100 ‘servants’ had been convicted under the Masters and Servants Proclamation 1920. Ibid. Ibid., 129. Ibid., 129–30. Ibid., 116. Ibid., 184.



    [South Africa] is not free to administer the Territory in any manner it chooses. It may not subjugate the majority of the inhabitants of the Territory in the interest of the minority. It may not act in disregard of human rights so basic and so fundamental that without them the rules of social interaction must always be determined by force.75

It was precisely by pointing out the multiple intersections between racial segregation and capitalist exploitation that the applicants’ counsel, Ernest Gross, attacked the testimony of one of South Africa’s principal expert witnesses, the anthropologist Johannes Petrus van Schalkwyk Bruwer. Much like their nineteenth-century predecessors,76 South African international lawyers gave anthropology a privileged position and mobilised its professionals as the most reliable source of relevant facts for the just distribution of legal rights and duties. The line of argument was familiar but with an important twist: different peoples found themselves at different stages of development and their laws and customs differed accordingly. Therefore, argued Bruwer, the policy of apartheid, or, as South Africa insisted calling it, of ‘separate development’ corresponded to the developmental needs of each people, thereby preventing racial conflict and decline.77 Following South Africa’s consistent practice, Bruwer painted an image of pre-colonial South West Africa as a site of constant strife, tribal violence and deprivation: While the Bantu people had before been more or less peaceful people, doing nothing much more than cattle-raiding their neighbours from time to time, you find that at the beginning of the last century a certain Zulu chief by the name of Chaka was able to set himself up as a war-lord, that he trained his people into armies, and that he made use of them to ravish the country, to exterminate his less-powerful neighbours and to make himself master of the whole country now known as Natal.78

75 76 77

78

Ibid., 104. Chapter 2. For an excellent overview of Bruwer’s testimony, see: Robert J. Gordon, ‘Anthropology in the World Court: The 1966 South-West Africa Case’ (2004) 31 History of Anthropology Newsletter 3–11. For an exposition of the central role of Afrikaner anthropology in the legitimisation of apartheid rule, see: Robert J. Gordon, ‘Apartheid’s Anthropologists: The Genealogy of Afrikaner Anthropology’ (2009) 15 American Ethnologist 535–53. Notably, Bruwer downplayed his political role as a member of the Odendaal Commission that had praised South Africa’s economic policies in the mandate as well as his short service as the first Commissioner-General for the Native Peoples of South West Africa and emphasised his scientific credentials. ‘Evidence of Mr Eiselen’, South West Africa (Ethiopia v South Africa, Liberia v South Africa) [1966] 10 ICJ Pleadings 88, 98.

.  ‘’   



For supporters of apartheid, such as Bruwer, the presence of white settlers was the only force towards peace and prosperity, and separate development protected not only the minority of whites, but also weaker tribal groups and the ‘native’ way of life, which would wither away should it be brought into close contact with the supposedly superior civilisation of the whites. Ernst Gross, however, did not accept this interpretation of apartheid as a system of separate development dedicated to the maintenance of peace, order and diversity. Rather, he highlighted the fact that the ‘natives’ were deeply incorporated in the ‘white economy’, but in a subordinate, highly exploited position. Bruwer’s crossexamination by Gross made it clear that the white, capitalist economy of the mandate would collapse in the case of withdrawal of black labour.79 By centring the intersection between race, land and labour, the applicants were attempting to turn the argumentative structure of the ‘standard of civilisation’ on its head. Their memorial constitutes a rare radical text that tried to mobilise the language of international law against the very imperial order that put it in place. However, this strategy had its own limitations and turned out to be short-lived. The decision to push for Namibians’ liberation by asserting the ongoing validity of the ‘sacred trust of civilisation’ meant that the applicants’ radical intentions were always mediated through the logic and structure of both the text of the mandate and the interwar practice of the PMC. Therefore, the assertion of South Africa’s obligation to promote the well-being and development of Namibians was one side of the coin. The other side involved the admission that at that point in history Namibians were unable to govern themselves: ‘One of the basic duties assumed by the Mandatories is to guide less developed territories to a point at which the inhabitants thereof would become competent to determine their own future status.’80 Similarly, the memorial occasionally lapsed into arguing that oppressive practices, such as the deprivation of political rights, were 79

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‘Mr. GROSS: Does the fact that the persons classified as “non-White” serve as employees in the so-called “White economy” have any relevance to the question whether the “White economy” survives or thrives? Mr. BRUWER: Mr. President, I am not an economist but if I have to give an opinion based on my ordinary evaluation of the situation, I would very definitely say that the fact that the, if we put it in inverted commas, “non-Whites” are working in the White area is a very important contribution towards the economy of that area.’ ‘Evidence of Mr Bruwer’, South West Africa (Ethiopia v South Africa, Liberia v South Africa) [1966] 10 ICJ Pleadings 238, 277. ‘Memorial Submitted by the Government of Ethiopia’, 184.



   

problematic not in their own right, but because they deprived black Namibians of the opportunity of being ‘schooled’ in the ways of selfgovernment.81 Overall, the memorial stroke a peculiar balance between embracing and pushing back against the logic of ‘civilisation’. When arguing from within the logic of the ‘standard of civilisation’, the applicants’ position tilted heavily towards the ‘logic of improvement’. They repeatedly asserted that legal subjectivity was potentially available to Namibians subject to reform, castigating apartheid for its rigid racial segregation and its regressive effects on the welfare of the native population. This line of argument nonetheless trapped them within the contradictions of the ‘standard of civilisation’ that did not lend themselves to judicial determination. At the same time, South Africa’s memorial was characterised by the same contradictions, only emphasising the ‘logic of biology’. Pretoria was also happy to acknowledge the intersection between race and capitalism, but in a very different way. The memorial stressed the subsistence character of the native economy,82 and insisted that harsh laws were required in order to ‘educate’ the black populations in the manners of wage labour and the benefits of the money economy: ‘Apart from the benefit of wages, the absorption of the Natives in a modern economy as regular workers had the advantage that it would gradually transform their traditional approach to work and inculcate in them new economic interests and attitudes.’83 As we saw in Chapter 3, this was far from an exceptional position under the interwar mandate regime, which tolerated compulsory labour for colonised peoples provided that it was rationalised on the grounds that it trained insubordinate natives in the ways of capitalism.84 Relatedly, the fact that black Namibians did not own capital was singled out as one of the main reasons for their ‘different’ treatment, since: ‘it would have been idle to expect the Native inhabitants of the Police Zone to provide the capital, initiative and entrepreneurial skill required for the exploitation of the resources of the Police Zone.’85 In order words, willingness and ability to participate in a capitalist 81 82

83 84 85

Ibid., 143. ‘Counter-Memorial Filed by the Government of the Republic of South Africa’, South West Africa (Ethiopia v South Africa, Liberia v South Africa) [1966] 2 ICJ Pleadings 1, 404. Ibid., 424–5. Chapter 3. ‘Counter-Memorial of the Republic of South Africa’, 410–11.

.  ‘’   



economy either as a capitalist or as an obedient worker were of major importance for the determination of a group’s legal status. Simultaneously, the logic of biology permeated South Africa’s submissions. As mentioned earlier, pre-colonial Africa was portrayed as a scary, violent and economically stagnant place, which could only progress thanks to the ingenuity of white settlers and administrators.86 Importantly, South Africa went a step further arguing that this was also the present condition of Africa wherever black majorities had taken over. Arguing that decolonisation had proceeded too quickly, Pretoria’s memorial was riddled with references to ‘bloodshed’ and violence as well as extensive invocations of post-colonial conflicts, especially the situation in the Congo. Even though the possibility of native betterment was always left theoretically open – since it justified South Africa’s tutelage – it was clear that the ‘global colour line’ also distinguished between order and chaos, peace and constant conflict, or even worse, communism.87 Overall, both the applicants and the respondent found themselves trapped within the oscillation between ‘improvement’ and ‘biology’ without being able to resolve this tension in favour of either pole. Nevertheless, Ethiopia and Liberia attempted an innovative balancing act that relied on this bipolar argumentative structure, while also pushing against it. However, in the course of the oral proceedings, the claims of the applicants shifted considerably. Rejecting a fact-finding mission which would have included a comparison between South West Africa and other sub-Saharan states, including Ethiopia and Liberia, the two African states conceded that Pretoria’s version of the relevant facts was authoritative, unless otherwise stated. Moving away from an argument that captured the material conditions in the mandate and suggested that they constituted a violation of international law, the applicants gradually developed a different strategy that decoupled racial discrimination from the overall structure of the economy, and rather focused on individualised harm. Even though Ernest Gross’s position was not always consistent, the thrust 86

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‘The adverse physical environment places a premium on the role of man in realising the limited and diverse natural potential of the Territory.’ Ibid., 404. What was left unsaid by the representatives of South Africa was that the mandate was rich in natural resources, especially diamonds. Throughout its memorials and oral arguments South Africa played upon Western concerns that an independent Namibia and a majority-governed South Africa would quickly fall to communism: ‘Disintegration of the traditional systems of control can give rise to destructive emotional patterns . . . The gap tends to be filled by revolutionary politics.’ ‘Counter-Memorial of the Republic of South Africa’, 412.



   

of the argument was that since the inception of the mandate a new legal norm and/or legal standard had emerged that prohibited racial discrimination, regardless of its real-life effects. The idea was that even if Pretoria’s assertion that apartheid was beneficial for everyone in the mandated territory was true, South Africa’s administration was still unlawful either because it contravened the norm of non-discrimination and/or because the mandate ought to be interpreted in the light of the relevant standard of non-discrimination. This was undeniably a stark position not only in regard to its substance, but also because it put forward a novel theory about international legal law-making. In trying to substantiate this new proposition, the applicants did not rely on Article 22 the League Covenant, the workings of the PMC, or the text of the mandate. Rather, they invoked UN General Assembly debates and resolutions, International Labor Organization resolutions, and other sources that are not considered to be amongst the traditional sources of international law, as enumerated in Article 38 of the ICJ Statute. The core of their argument was that South Africa was bound by this alleged norm/standard of non-discrimination, even though it had not specifically consented to it. As mentioned in Section 4.1 of this chapter, what was at stake here was much bigger than the merits of the specific case; it rather concerned the efforts of post-colonial states to reshape international law relying on their growing majority in the UN General Assembly. This effort to put forward a communitarian vision of law-making was met with scepticism by both legal scholars and the ICJ judges.88 The majority of the ICJ, of course, declined to rule on the merits of the case anyway. Still, from the seven dissenting judges only one, Judge Tanaka, accepted the existence of a legally binding norm of non-discrimination. Importantly, South Africa contested both the procedural and substantive aspects of the applicants’ new position. To do so, they resorted to the history of colonial administration, the history of the mandate, and contemporary state practice. They claimed that differentiation (instead of discrimination) amongst the races had been and continued to be a core aspect of colonial and domestic administration. Therefore, not only was 88

This appropriation of the term ‘international community’ by post-colonial states and jurists was novel at the time. As recently as in 1948, the Indian judge at the Tokyo Tribunal, Radhabinod Pal, had staunchly resisted this mode of reasoning: Adil Hasan Khan, ‘Inheriting a Tragic Ethos: Learning from Radhabinod Pal’ (2016) 110 AJIL Unbound 25–30, 26–7.

.  ‘’   



their administration of the mandate not as unorthodox as their opponents presented it to be, but the existence of such a norm of non-discrimination was impossible in the face of such widespread state practice pointing to the opposite direction. The ‘white Australia policy’ as well as other restrictive immigration policies that were explicitly or implicitly justified on racial grounds in New Zealand, Canada and the United Kingdom served as useful examples for South Africa’s lawyers.89 South Africa’s contention was that the ‘sacred trust of civilisation’ was fundamentally based on the idea of differentiation both between the mandatory and the mandated territory, and between the different classes of the mandates. The task to ‘elevate’ the mandated communities was premised on accepting at the very least their contemporary ‘immaturity’, or, less politely, inferiority. Even though the applicants staunchly protested the most extreme, biological justifications advanced by South Africa, their choice to mobilise the ‘sacred trust of civilisation’ anchored them to the contradictory logic of the ‘civilising mission’. This argumentative pendulum led Liberia and Ethiopia to focus on the rights of individuals instead.90 By the end of the oral proceedings, they maintained that apartheid was outrageous because of the possibility that certain particularly charismatic black Namibians were held behind by the blanket discriminatory policies of the mandatory: Respondent averts that ‘socio-cultural differences between racial and ethnic groups may, in part at least, be the consequence of differences in genetic potential’. The phrase ‘genetic potential’ is admittedly unintelligible to the Applicants, and, in any event, it could, under no circumstances, in the Applicants’ theory, justify a policy of allotting burdens or denying rights, on the basis of membership in a group rather than on the basis of individual merit, quality or capacity, in the case of individuals whose so-called ‘genetic potential’ (whatever that may mean) endows them as individuals with qualities or capacities, the fulfilment of which is denied or inhibited by governmental policy or action.91

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‘Reply by Mr de Villiers’, South West Africa (Ethiopia v South Africa, Liberia v South Africa) [1966] 10 ICJ Pleadings 188, 195–6. Tuori has mapped the transformation of the discourse of human rights in the League, including its unfolding centrality for the South West Africa saga: Taina Tuori, ‘The Emergence of Rights Language and the South West Africa Cases of the International Court of Justice’ in From League of Nations Mandates to Decolonization: A History of the Language of Rights in International Law (PhD Thesis, University of Helsinki 2016) 183–94. ‘Reply of Mr Gross’, South West Africa (Ethiopia v South Africa, Liberia v South Africa) [1966] 9 ICJ Pleadings 124, 251.



   

This was a persuasive position since it exposed the fallacies at the heart of South Africa’s policy and it hinged on contemporary liberal discomfort with the most extreme forms of racial discrimination. However, it came at a cost: instead of challenging the political economy of the mandate, the Applicants were now arguing that a minority of talented black Namibians ought to be given a seat at the table.

4.3 Civilisation Is Dead, Long Live Civilisation: Namibia’s Legal Path to Independence Liberia and Ethiopia’s backtracking was not only unambitious but also unsuccessful. A sharply divided ICJ decided – thanks to the casting vote of its President – that even though the two African states apparently had standing to bring a case in front of the ICJ, according to the 1962 decision, they did not have standing to obtain a decision from the ICJ. Political and scholarly reactions to the ICJ’s decision are best summarised by the dissenting opinion of Judge Forster: ‘This passes my understanding’.92 Even though the position of this new majority was widely criticised as being overly positivist and dogmatic,93 it is nonetheless the case that it relied on a distinction with no textual basis in the mandate agreement. The ICJ ruled that the mandate contained two separate categories of provisions: ‘conduct provisions’ that related to the smooth execution of the ‘sacred trust of civilisation’ and ‘ particular provisions’, such as Article 5 of the agreement that guaranteed the rights of missionaries who were citizens of the League to enter South West Africa and evangelise. Liberia and Ethiopia only had standing to seek a judicial determination of potential violations of Article 5, while the right to bring

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South West Africa (Ethiopia v South Africa, Liberia v South Africa) (Second Phase) [1966] ICJ Rep 6, 478 (dissenting opinion of Judge Forster). Amongst many: ‘The Court, in a spirit that is true to the character of the conservative temper of the Continental jurist, implies that its sole task is to adjudicate in accordance with its understanding of the legal rights and duties in the mandates system as existent as of 1920.’ Richard A. Falk, ‘The South West Africa Cases: An Appraisal’ (1967) 21 International Organization 1–23, 10. Even scholars sympathetic to South Africa’s case found the reasoning of the Court to be ‘very dogmatic’: Marinus Wiechers, ‘South West Africa: The Decision of 16 July 1966 and Its Aftermath’ (1968) 1 Comparative and International Law Journal of South Africa 408–46, 411. John Dugard similarly maintained that the core of the disagreement revolved around different approaches to treaty interpretation: John Dugard, ‘The South West Africa Cases, Second Phase, 1966’ (1966) 83 South African Law Journal 429–60, 447–52.

. ’    



a case regarding ‘conduct’ provisions was reserved for the League Council. The drawing of this textually unsupported distinction indicates that the reading of the divergence between the majority and minority opinions as a clash between positivism and sociological approaches to law is not self-evident. More precisely, it is reflective of the anxieties of the two sides to present themselves either as men of the law who remain uninfluenced by politics or as renewers, who try to reform international law saving it from its imperial past, and not so much of the actual structure and content of the claims put forward. Despite its pretences that it strictly applied the law as it existed at the time, the majority put forward a novel, creative interpretation and constructed a binary division between the provisions of the mandate previously unknown to scholarship. Similarly, the minority’s position that all League members had standing had considerable traction amongst legal scholars during the interwar period, and it was therefore not as creative or forward-looking as its advocates imagined it to be.94 Instead of thinking about the decision through the binary of novelty/ tradition, I rather suggest that we read it as part of the ongoing struggle about who had the right to decide about the ‘sacred trust of civilisation’ and on what grounds. By effectively reversing its 1962 position, the ICJ now pronounced that the only valid universalism, in this case, was Christian universalism and the protection of missionaries in the mandates. On the contrary, transnational, anti-imperialist solidarity and PanAfricanism did not give rise to a sufficient legal interest to determine the contours of ‘civilisation’. Of course, this reading does not speak to the individual motives of particular judges,95 or to the fact that this might have been the only grounds on which they could reach consensus. It rather takes the specific position that was adopted seriously and on its

94

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Quincy Wright’s authoritative book on the mandate system had, for example, adopted this approach: ‘Every member of the League can regard its rights as infringed by every violation by the mandatory of its duties under the mandate, even those primarily for the benefit of the natives, and can make representations which if not effective will precipitate a dispute referable to the Permanent Court of International Justice.’ Wright, Mandates under the League of Nations, p. 475. For such an account that focuses on Sir Percy Spender’s anti-communism and racist anxieties, see: Victor Kattan, ‘“There Was an Elephant in the Court Room”: Reflections on the Role of Judge Sir Percy Spender (1897–1985) in the South West Africa Cases (1960–1966) after Half a Century’ (2018) 31(1) Leiden Journal of International Law 147–70.



   

own terms and places it within a broader history of argumentative patterns drawn from ‘civilisation’. After all, if something was clear to all the parties involved it was that the stakes of this saga were much higher than those of the particular issue in question. The anger and disappointment of post-colonial states had a profound impact on the legitimacy of the ICJ, as well as on their conviction that from now on they would be very careful about who would be put on the bench. Simultaneously, the 1966 ruling and the insistence of South Africa on treating it as a substantive victory for its administration, signalled the end of the efforts to mobilise the conceptual and administrative structures of the mandate against apartheid and annexationism. In October 1966, the UN General Assembly adopted with an overwhelming majority (114 votes to 2 with 3 abstentions) Resolution 2145(XXI), which terminated the mandate due to South Africa’s failure to ‘fulfil its obligations in respect of the administration of the Mandated Territory and to ensure the moral and material well-being and security of the indigenous inhabitants of South West Africa’.96 Resolution 2372(XXII) further decided to thereafter refer to the territory with the preferred name of its independence movement, Namibia.97 It was only in March 1969 that the UN Security Council finally condemned the continued presence of South Africa in Namibia as being unlawful and called on it to immediately withdraw.98 In the light of South Africa’s intransigence, the UN Security Council requested an advisory opinion from the ICJ about the legal consequences of this unlawful presence. Between 1966 and 1971 the composition of the ICJ had shifted considerably leading to a majority much more sympathetic to the opponents of apartheid. It is, therefore, understandable that the 1971 opinion is widely considered to be a rectification of the ICJ’s 1966 misdeeds and a victory for the opponents of formal imperialism.99 Indeed, the ICJ insisted that there was no fundamental difference between the ‘C’ mandates and the ‘A’ and ‘B’ ones. More specifically, the ICJ’s majority put 96 97 98 99

Question of South West Africa, UNGA Res 2145(XXI) (27 October 1966) para. 3. Question of South West Africa, UNGA Res 2372 (XXII) (13 June 1968). The Situation in Namibia, UNSC Res 264 (20 March 1969). In an otherwise critical appraisal of the role of international law for Namibia, Grovogui noted that: ‘The court ruling, it has been said, was one important factor in the unanimous approval of Security Council resolution 385 (1976), which uncompromisingly called for Namibian independence.’ Siba N’Zatioula Grovogui, Sovereigns, Quasi Sovereigns, and Africans: Race and Self-Determination in International Law (Minneapolis, MN/London: University of Minnesota Press 1996) p. 170.

. ’    



forward an evolutionary interpretation of the mandate that took into account both the doctrinal advancement of self-determination and the sheer fact of decolonisation. Drawing from these evolutions, the ICJ concluded that ‘these developments leave little doubt that the ultimate objective of the sacred trust was self-determination and independence of the peoples concerned.’100 In this respect, the ICJ approached the issue from the angle of selfdetermination and human rights. This was an important evolution, which indicated widespread disciplinary discomfort with the language of the ‘sacred trust of civilisation’. Importantly, it was in line with the efforts of post-colonial and socialist members of the ICJ to push against, criticise and marginalise the language of ‘civilisation’. The flip side of the coin was the prioritisation of the abstract, universalist language of rights that obscured the material conditions of Namibia and the actual nexus of rights, duties and privileges constructed by apartheid, and enabled the subjugation of Indigenous lands and labour for the benefit of a white settler minority, South Africa’s capitalists and international capital. Instead, as mentioned above, the focus shifted towards individual injustices, especially towards supposedly ‘exceptional’ black Namibians. This approach was in stark contrast both with the earlier legal strategy of Ethiopia and Liberia and also with the analysis of Namibia’s revolutionary independence movement: Few other colonies in the modern era of capitalist imperialism have as extreme a record of economic exploitation as Namibia under German and South African rule . . . It is to regain control over their own political and economic destiny that the Namibian people, led by SWAPO, are fighting a deadly war. Their struggle is for freedom, not only from oppressive rule of the hated colonial regime but also from the political and economic stranglehold of its imperialist allies, and for the end of class exploitation and all forms of social injustice.101

In fact, this shift towards the abstract language of human rights became the vehicle for the survival of the ‘standard of civilisation’ by other (juridical) means. Once again, the question ‘who decides’ was at the heart of the legal and political controversy. In 1972, the UN General Assembly recognised SWAPO as the ‘sole legitimate representative’ of the Namibian people. This recognition accorded SWAPO with

100 101

Legal Consequences, 31 [53]. SWAPO of Namibia, To Be Born a Nation, p. 4.

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   

international legitimacy, as well with material advantages as their guerrilla struggle against South Africa’s occupation intensified. The harsh repressive measures of Pretoria, combined with the absence of effective sanctions against South Africa and the unwillingness of any major powers to intervene militarily in support of Namibia’s liberation meant that the struggle of Namibians could not alone achieve the termination of the occupation. International settlement of the issue was necessary. In 1976, the UN Security Council adopted Resolution 385, which provided for the conduct of free elections under UN supervision. During the following year, Canada and West Germany were elected as nonpermanent members of the UN Security Council. This numerical enhancement enabled Western states, and especially the United States, to turn to informal arrangements in an effort to bypass both the UN Security Council and General Assembly and to make sure that Namibia’s independence would not threaten their national interests and the profitability of their businesses in the territory. The Western Contact Group (WCG) was established in 1977. Even though the source of its authority under international law remained unclear, there was little doubt at the time that it was antagonistic to the authority of the United Nations’ official organs.102 The WCG represented a turn to informal mechanisms designed to circumvent the numerical majority of postcolonial states in the United Nations as well as to diminish the role of SWAPO and to negotiate directly with South Africa, despite the illegality of its presence in Namibia. Gradually, the work of the WCG became too important for the United Nations to ignore. It, moreover, became evident that having accepted the inevitability of Namibia’s independence both the WCG and South Africa attempted to set the legal framework for this transition and create a state safe for racial capitalism. This was achieved in two ways. First, Pretoria made Namibia’s independence dependent on the withdrawal of Cuban troops from Angola as well as on delimiting Namibia’s future foreign policy and receiving guarantees that its territory would not become the basis for anti-apartheid guerrilla warfare.103 As we will see in the final chapter of this monograph, imperial anxieties about the usage of the 102

103

For two highly critical accounts, see: Henry J. Richardson, ‘Constitutive Questions in the Negotiations for Namibian Independence’ (1984) 78 American Journal of International Law 76–120; Gay J. McDougall, ‘International Law, Human Rights, and Namibian Independence’ (1986) 8 Human Rights Quarterly 443–70. Ibid., 453.

. ’    



territory of post-colonial states would come to dominate international legal debates, especially in the context of the war on terror.104 In this respect, the demand of South Africa that Namibia did not become part of African struggles for the end of overt racial discrimination points at a delimiting of the horizon of what sovereignty, self-determination and national independence are for. Second, the WCG and South Africa alike used the design for Namibia’s post-independence constitution as a means of safeguarding the interests of foreign capital and as a way of pacifying the racial anxieties of white settlers. They made the acceptance of specific provisions related to property protections an inflexible condition for independence. In other words, the ‘logic of improvement’ became an integral part of Namibia’s acquisition of statehood under international law. In 1982, a settlement plan containing, amongst other things, certain Constitutional Principles was agreed upon between the WCG and South Africa and subsequently was adopted by the UN Security Council in its Resolution 435.105 These Principles formed the non-negotiable backbone of Namibia’s constitution. Protections of established property rights and of free economic activity were incorporated into the Constitution as part of its Chapter 3 protecting human rights, thereby locking-in the highly unequal, racialised distribution of property and wealth in the country. Importantly, as Job Shipululo Amupanda has noted, the rights of Chapter 3 are subject to rigorous judicial enforcement, while Article 98, which provides for the establishment of a ‘mixed economy’ in the country, is explicitly excluded from such judicial review and is only considered to be a guiding principle for the design of governmental policy.106 This effort to maintain the economic status quo and to discipline the Namibian state in accordance with the imperatives of racial capitalism was further exacerbated by the fact that legislation in force at the time of independence was agreed to remain intact, unless specifically repealed. Furthermore, the Constitution could only be repealed with a two-thirds 104 105

106

Chapter 5. Conservative legal scholars have gone as far as arguing that the Principles are now part of both domestic and international law and therefore, the Constitution cannot be amended in ways that would violate them, even with the required two-thirds majority: Marinus Wiechers, ‘Namibia: The 1982 Constitutional Principles and Their Legal Significance’ (1989–1990) 15 South African Yearbook of International Law 1–21. Job Shipululo Amupanda, ‘Constitutionalism and Principles of Economic Order: Examining Namibia’s “Mixed Economy” and the Economic Asylum of Neoliberalism’ (2017) 21 Journal of Namibian Studies: History, Politics, Culture 7–26, 20.

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   

majority and the electoral process was designed in such a way as to make it difficult for SWAPO to achieve such a majority. When Namibia became independent in 1990 the juridical scene had been set for its operation as a neoliberal state, a fact that was further reinforced by the embrace of neoliberal capitalism by SWAPO themselves. Human rights were one of the juridical mechanisms that enabled this transformation and, importantly, became the vehicle for the survival of the ‘sacred trust of civilisation’ as an argumentative pattern that constantly oscillated between a ‘logic of biology’, which saw Africans as savages and the emergence of majority-black states as a threat to order, peace and even the survival of the ‘white race’, and a ‘logic of improvement’, which conjoined independent statehood with the juridical and administrative guarantees of capitalism and, gradually, of a particular form of capitalist accumulation, neoliberalism.

4.4 Conclusion This chapter offered a re-reading of one of the most controversial cases ever to be adjudicated by the ICJ, which also happens to be a major postcolonial battle over the ‘soul’ of international law. The South West Africa saga is also a useful reminder that the language of ‘civilisation’ did not disappear overnight after 1945, but became the battleground between proponents and opponents of apartheid and South Africa’s plans to annex its mandate. In the course of this protracted battle, the ICJ ruled on a broad range of questions that included the continuing existence of the mandate, the modalities of supervision in the context of much more inclusive institutional arrangements and, finally, on who had a sufficient legal interest to seek the judicial determination of the obligations flowing from the ‘sacred trust of civilisation’. The ICJ’s unwillingness to allow for a judgment on the merits meant that the substantial question was never answered. However, the parties’ submissions provide indispensable insight into the efforts of post-colonial states to use ‘civilisation’ against the grain and into the problems these initiatives faced. Perhaps the most radical and unappreciated aspect of the saga is the attempt of Ethiopia and Liberia to provide a detailed account of the inner workings of racial capitalism in Namibia and to argue that against all odds they constituted a violation of the ‘sacred trust’. However, both the inherent tensions of the applicants’ own position, which remained anchored to the paternalistic assumptions of the mandate, and the manoeuvres of South Africa forced the applicants into a strategic retreat. By the end of the 1966

. 

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proceedings, Ethiopia and Liberia were making a much more politically modest, albeit legally ambitious, case: regardless of the facts on the ground, apartheid was in violation of the norm/principle of non-discrimination. Despite the failure of this position, the turn to abstract principles had a lasting impact on the case. When the ICJ was asked to pronounce on the legal consequences of South Africa’s ongoing presence in Namibia for the last time, its advisory opinion drew from the language of selfdetermination and human rights. The cost of this victory for the Third World was the abandonment of its radical critique of racial capitalism in Namibia as being incompatible with international law. In turn, this sidelining of political economy by the ICJ enabled South Africa and Western powers to deal with it in different, much less representative fora. The Western Contact Group, a de facto group with no clear authority, assumed a central role in negotiations and successfully pushed for independence effectively constrained by a constitution dedicated to the protection of property rights and the economic status quo. The case of South West Africa is instructive on multiple fronts. As I argued already, one such front is the realisation of the ongoing purchase of ‘civilisation’ during the legal battles surrounding decolonisation. Another could be a better understanding of the continuities between overtly racist ways of arguing and our contemporary, supposedly colour-blind discipline. After all, South Africa’s legal and political defences of its rule over Namibia and the policy of apartheid make for an uncomfortable read. On the one hand, this is because the explicit, biological racism of these texts can today only be found in the darkest corners of the internet. South Africa’s 1966 memorial contains extensive references to the phenotypical characteristics of different tribes, the precise colour of their skin and the shape of women’s breasts. It is safe to say that at least for now it is difficult to imagine a government that would not only act in accordance with such a worldview steeped with biological racism but would write it down for the ICJ judges to read. On the other hand, the discomfort is accentuated by the fact that aspects of Pretoria’s legal arguments are strikingly, unmistakably familiar. As we will see in the next chapter, the idea that decolonisation proceeded too rapidly, giving birth to states unworthy of the rights and privileges attached to statehood, lies at the core of many arguments in support of the ‘unwilling or unable’ doctrine. Furthermore, the idea that administrative and economic efficiency are good enough bases for the grounding of lawful authority to govern is shared both by South Africa’s text and by the most common defences of practices such as international territorial



   

administration. Finally, the spectre of disorder and terror was particularly effective for Pretoria, as it turned out to be for the United States in its efforts to reshape international law in ways that would enable it to enact extensive economic reforms and violent tactics across the globe. The next and final chapter of this monograph will map the different sites in which the ‘standard of civilisation’ remains a prominent way of arguing about international law, therefore enabling us to think more clearly about these stark, unexpected echoes.

5 From Iraq to Syria Legal Arguments for the Civilising Missions of the Twenty-First Century I think we agree, the past is over. George W. Bush (2000)1 Tonight I call on all civilised nations to end the slaughter and bloodshed in Syria and also to end terrorism of all kinds and all types. Donald J. Trump (2017)2

The opening sentences of this book recounted the controversy that French President Emmanuel Macron stirred in 2017, when he asserted that a new Marshall Plan for Africa would be inappropriate, since the problems of the continent are ‘civilisational’. This was not the only instance of world leaders flirting with the language of ‘civilisation’. Justifying the airstrikes against Assad’s government in Syria, the President of the United States, Donald J. Trump, called on ‘all civilised nations’ to join him in ending ‘the slaughter and bloodshed in Syria as well as terrorism of all kinds’. International lawyers have been more reserved, generally abstaining from explicit invocations of the term. However, ‘civilisation’ as an argumentative pattern that oscillates between disciplining the state along the lines of capitalist modernity and confining some communities to a lower legal status due to their purportedly inherent inferiority has been steadily present in the discipline. In the preceding chapters, I argued that the classical ‘standard of civilisation’ encapsulated precisely this mode of arguing in international law. Nonetheless, the legal struggles of Third World lawyers as well as the broader social and political struggles of racialised peoples, women and ‘sexual deviants’ of all kinds rendered explicit invocations of the 1

2

Jacob Weisberd, ‘The Complete Bushisms’ (The Slate, 20 March 2009) available at: www .slate.com/articles/news_and_politics/bushisms/2000/03/the_complete_bushisms.html. Henry Austin, ‘Syria Missile Strike: Donald Trump Calls on “All Civilised Nations to End the Slaughter and Bloodshed”’ (The Independent, 7 April 2007).





   

‘standard of civilisation’ largely – yet not entirely – unfashionable. Moreover, as Chapter 4 demonstrated, those finding themselves on the receiving end of imperial oppression attempted to mobilise ‘civilisation’ for their own ends, albeit with limited success.3 This chapter argues that far from being the relic of a bygone area, ‘civilisation’ remains one of the principal argumentative patterns available to international lawyers when arguing for the distribution of rights and duties amongst states. Of course, the idea that the ‘standard of civilisation’ still lingers around in international theory and practice is not a new one, especially amongst critical legal scholars.4 My aim here is to build on this valuable work by adding a layer of concreteness and historical specificity to it. By revisiting nominally distinct fields of international law, such as the law of belligerent occupation and the law on the use of force, I will demonstrate that contemporary international lawyers still oscillate between the ‘logic of improvement’ and the ‘logic of biology’. Moreover, I maintain that this oscillation is due to international law registering the very real contradictions of imperialism. As capitalism expands globally it manifests its tendency to create both homogenisation and deeply situated differentiation, without being able to resolve the tensions between the two. Therefore, this argumentative persistence is due to both the practices of inheritance, socialisation and conformity within the profession and the material conditions of the world within which international lawyers operate and (unsuccessfully) attempt to mediate. To elucidate the contemporary relevance of these tensions for international law, I map the ways the standard of civilisation structured legal argumentation in regards to two defining issues of the war on terror: the invasion and occupation of Iraq in 2003–4 and the ongoing discussion about states’ right to use defensive force against non-state actors and

3 4

Chapter 4. Amongst many: David P. Fidler, ‘The Return of the Standard of Civilization’ (2001) 2 Chicago Journal of International Law 137–57; David P. Fidler, ‘A Kinder, Gentler System of Capitulations? International Law, Structural Adjustment Policies, and the Standard of Liberal, Globalized Civilization’ (2000) 35 Texas International Law Journal 387–413; Frédéric Mégret, ‘From “Savages” to “Unlawful Combatants”: A Postcolonial Look at International Law’s “Other”’ in Anne Orford (ed.), International Law and Its Others (Cambridge: Cambridge University Press 2006); Sundhya Pahuja, Decolonising International Law: Development, Economic Growth and the Politics of Universality (Cambridge: Cambridge University Press 2011); Usha Natarajan, ‘Creating and Recreating Iraq: Legacies of the Mandate System in Contemporary Understandings of Third World Sovereignty’ (2011) 24 Leiden Journal of International Law 799–822.

   



particularly the debate surrounding the ‘unwilling or unable’ doctrine.5 Therefore, my analysis brings together the law on the use of force and international humanitarian law, especially the law of belligerent occupation. Transcending the boundaries of disciplinary fragmentation is essential in order to show the broad relevance of ‘civilisation’ for the discipline. Relatedly, my analysis covers at least three different consecutive US administrations, encompassing both the adoption and the subsequent formal abandonment of the rhetoric of the war on terror. However, as feminist scholars like Heathcote have argued, this change of label did not bring about a substantial change of policy or change in legal argumentation regarding the rights of hegemonic powers, and especially the United States, to use force against perceived threats to their national security.6 If anything, the Obama administration pursued an even more ‘muscular’ war against Al Qaeda, expanding the use of drones for targeted killings, thereby bringing to the forefront of the political and legal debate questions of life and death, and not of detention.7 The third line straddled in this chapter is the very structure of the debates I analyse. I do not discuss whether the invasion or the comprehensive social, political and economic reforms in occupied Iraq were lawful or whether ‘unwilling or unable’ reflects the current state of the law. Besides professional custom and habit, there is little reason why all debates about law should awkwardly imitate the modalities of arguing one’s case in front of a court of law at all.8 If legal argumentation properly-so-called is a ‘structured dialogue which assigns a burden of proof in relation to facts, and in relation to norms a burden of persuasion: states must persuade judges of the worth of their argument’,9 it

5

6

7

8

9

For an earlier engagement of mine with these two issues, see: Ntina Tzouvala, ‘TWAIL and the “Unwilling or Unable” Doctrine: Continuities and Ruptures’ (2015) 106 AJIL Unbound 266–70. Gina Heathcote, ‘Feminist Reflections on the “End” of the War on Terror’ (2010) 11 Melbourne Journal of International Law 277–307. Naz K. Modirzadeh, ‘Folk International Law: 9/11 Lawyering and the Transformation of the Law of Armed Conflict to Human Rights Policy and Human Rights Law to War Governance’ (2015) 5 Harvard National Security Journal 225–304, 289. I am, therefore, sceptical of Peters’ and Marxsen’s argument that ‘[i]t looks as if the question of self-defence lends itself to such a doctrinal analysis “before the law” easily, because we have a treaty text, a relatively dense bulk of case-law, and much practice.’ Anne Peters and Christian Marxsen, ‘Editors’ Introduction: Self-Defence in Times of Transition’ (2017) 77 ZaöRV 3–13, 12. Iain Scobbie, ‘Towards the Elimination of International Law: Some Radical Scepticism about Sceptical Radicalism’ (1991) 61 British Yearbook of International Law 339–62, 351.



   

remains unclear why any reflection on law outside the courtroom or the lawyer’s office should respond to this interpellation by constantly acting as if one represents a state in front of an imaginary judge. Rendering this familiar practice strange,10 and showing it to be the product of a deeply seated state-centrism in international law that invites or even compels us to recognise only this particular style of legal argumentation as valid or worthwhile and exiles other styles to the margins of acceptability, is central to my overall effort here. After all, it is unclear what ‘arguing like a lawyer’ would entail in this instance. The debates I revisit encapsulate differences of opinion and style not only in regard to the validity or the content of specific norms, but also about the very nature of international law and the role of the international lawyer as a professional. As Koskenniemi has argued, a certain epistemology that understands international law to be a set of rules leads to the conclusion that ‘the exposition of valid norms’ is the only proper function of the lawyer, while a different epistemology that grounds international law on its correspondence to certain facts, commands lawyers to bridge the gap between law and the realities of power.11 Therefore, there is no transparent, immediately available way of ‘arguing before the law’ and any attempt to do so involves both a choice about which of the two theoretical positions is correct and a certain wilful ignorance about the fact that despite their apparent mutual exclusivity the two epistemologies of law tend to collapse into each other as the debate evolves.12 Focusing on international legal argument as such, as well as on the narratives, imaginaries and material practices that sustain it, enables us to not only understand these paradoxes of doctrinal legal

10

11

12

Orford has argued that it is precisely the function of a (particular) historical method to render the familiar strange when it comes to international law and the global economy: Anne Orford, ‘Food Security, Free Trade, and the Battle for the State’ (2015) 11(2) Journal of International Law and International Relations 1–67, 28. For a defence of the critical, and particularly, the feminist method in international law, see: Anne Orford, Reading Humanitarian Intervention: Human Rights and the Use of Force in International Law (Cambridge: Cambridge University Press 2003) pp. 50–6. Martti Koskienniemi, From Apology to Utopia: The Structure of the International Legal Argument (Cambridge: Cambridge University Press 2005) pp. 520–1. ‘These positions seem both exhaustive and mutually exclusive. Yet, both produce convincing criticism of each other and must constantly lean towards each other. To escape from endless interpretative controversies, the law-as-idea approach must posit itself on the plane of the law-as-fact view. It must look at the assumedly impaction arbiter of facts. To become normative, the law-as-fact view must assume that there exist ideas which tell which facts are relevant and in which sense.’ Ibid., p. 520.

   



argumentation, but also how and why these paradoxes continue to be circulated and reproduced long after they have been laid bare.13 Indeed, the continuing relevance of the ‘standard of civilisation’ does not depend on its conceptual coherence at all. As the previous chapters have demonstrated, constant slippages between two seemingly incompatible logics have lain at the heart of ‘civilisation’ since its ascendance in the late nineteenth century. To demonstrate the continuing relevance of this argumentative pattern, I first revisit the disciplinary debate about the invasion and, notably, the occupation and reform of Iraq between 2003 and 2004. I show that comprehensive neoliberal reform was deemed essential for the rehabilitation of Iraq from a ‘rogue state’ to a ‘normal’ sovereign with equal rights and duties, which does not constitute a constant threat to international peace and security. The United Nations, the United States and subsequently Iraqi authorities all argued that they were uniquely placed and legally entitled to be the final guarantors of Iraq’s transformation into a neoliberal state. At the same time, the mere fact that reform had to be imposed externally – be it from the United States or the United Nations – reproduced the idea that Iraqi society was a mixture of weakness and malevolence, uniquely incompetent to reform itself and to freely decide on the direction of such reform. Even though openly racist and sexist language was generally (yet not always) avoided, Iraq and its people were constantly infantilised, racialised and feminised. This rhetoric presented Iraqis as passive victims but also as secretive conspirators or as being unaware of the concept of freedom but also as experiencing freedom through outbursts of violence. The second part of this chapter traces the ongoing resonance of the ‘standard of civilisation’ in the debates about the ‘unwilling or unable’ doctrine. Nominally a debate about the use of force in extraterritorial selfdefence against non-state actors, the ‘unwilling or unable’ doctrine is better understood, I argue, as an effort to enlist the states of the Global South to the state-form and the political economy of the global war on terror by establishing administrative criteria that determine which states deserve equal sovereignty and which do not. States and scholars once again battle both over the substantive content of the ‘standard of civilisation’ and over 13

After all, thirty years after the first publication of Koskenniemi’s From Apology to Utopia, which was broadly read as a deconstructionist offence against international law as a whole, the elimination of international law is still to occur. See: Scobbie, ‘Towards the Elimination of International Law’.



   

who gets to decide whether a political community is ‘unwilling or unable’ to deal with terrorism. As we also saw in Chapter 3, the persistence of ‘civilisation’ as an argumentative pattern does not mean that the requirements attached to it remain static or unchanged. Rather, the plasticity of the standard, and especially its ability to adapt to the changing realities of the capitalist state, is part of its disciplinary appeal. In this instance, the ‘logic of improvement’ can only be understood in conjunction with the decline of the welfare state, the global rise of neoliberalism as the dominant model of capitalism, and, finally, the securitisation of global affairs in the context of the war on terror. The next two sections of this chapter explore this dynamic relationship between continuity and change and the realities they have produced for contemporary international law.

5.1

One More Time with Feeling: The Occupation of Iraq between the ‘Logic of Improvement’ and the ‘Logic of Biology’

On 20 March 2003, the United States, the United Kingdom and their Coalition partners (the Coalition) launched a military attack against Iraq, and quickly overthrew the government of Saddam Hussein. They did so after they had failed to secure a UN Security Council resolution that would explicitly authorise the use of force under Chapter VII of the UN Charter. After this failure, the United States and the United Kingdom justified their actions with a complicated argument involving a combination of UN Security Council Resolutions 678, 687 and 1444 and the assertion that Iraq was in ‘material breach’ of the disarmament obligations of the cease-fire regime established by Resolution 687.14 On 8 May, the Coalition jointly addressed a letter to the UN Security Council. Even though the letter stopped short of describing the role of the Coalition as one of occupying powers, it contained clear references to the laws of occupation: ‘[t]he States participating in the Coalition will strictly abide by their obligations under international law, including those relating to 14

For a careful mapping and disentanglement of the legal, as opposed to the political, justifications for the invasion of Iraq, see: Dino Kritsiotis, ‘Arguments of Mass Confusion’ (2004) 15 European Journal of International Law 233–78. For an extensive debate about the legality of the invasion conducted mostly amongst US-based lawyers, see: Lori Fisler Damrosch and Bernard H. Oxman, ‘Agora: Future Implications of the Iraq Conflict’ (2003) 97 American Journal of International Law 552–642. For a comprehensive account of the politics of justification of the use of force that focuses on the United Kingdom, see: Charlotte Peevers, The Politics of Justifying Force: The Suez Crisis, the Iraq War, and International Law (Oxford: Oxford University Press 2013).

.     



the essential humanitarian needs of the people of Iraq. We will act to ensure that Iraq’s oil is protected and used for the benefit of the Iraqi people.’15 Furthermore, the Coalition states avowed their intention to secure a ‘representative government’ for Iraq, while they also signalled their willingness to allow for some limited involvement of the United Nations in the administration of Iraq: ‘[t]he United Nations has a vital role to play in providing humanitarian relief, in supporting the reconstruction of Iraq, and in helping in the formation of an Iraqi interim authority.’16 The United States and the United Kingdom also initiated the process to secure a UN Security Council resolution that would legitimise their presence in Iraq and would facilitate and/or legalise the radical reforms that they were planning to implement. Even though the resultant Resolution 1483 did not provide exhaustive legal regulation for the occupation, it expressly characterised the United States and the United Kingdom as ‘occupying powers under unified command’, and referred to their specific authorities, responsibilities and obligations under the applicable international law. Importantly, the UN Security Council called upon ‘all concerned to comply fully with their obligations under international law including in particular the Geneva Conventions of 1949 and the Hague Regulations of 1907’.17 As the dust of the disciplinary debates on the legality of the invasion began to settle, international lawyers turned their attention to the extensive and rapid pro-market reforms undertaken by the Coalition Provisional Authority (CPA) in Iraq. The debate was structured around two major approaches. On the one hand, doctrinal analysis focused on the lawfulness of the CPA’s comprehensive reforms under the laws of occupation, with particular reference to the ‘conservationist principle’. Drawing from the distinction between (temporary) occupation and (unlawful) annexation, the ‘conservationist principle’ gives rise to obligations on the occupier to respect the laws in force, unless absolutely prevented from doing so in accordance with Article 43 of the Hague Regulations,18 and to 15

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UN Security Council, ‘Letter dated 8 May 2003 from the Permanent Representatives of the United Kingdom of Great Britain and Northern Ireland and the United States of America to the United Nations addressed to the President of the Security Council’ (8 May 2003) S/2003/538. Ibid. Preamble to UNSC Res 1483 (22 May 2003) UN Doc S/RES/1483. Convention (IV) Respecting the Laws and Customs of War on Land and Its Annex: Regulations Concerning the Laws and Customs of War on Land (adopted 18 October 1907, entered into force 26 January 1910) art. 43.

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   

allow local (penal) laws to remain in force, unless ‘they constitute a threat to its security or an obstacle to the application of the present Convention’.19 Scholars sympathetic towards the occupation opined that the reforms ought to be considered lawful either because Resolution 1483 had purportedly authorised them or because the traditional laws of occupation were inadequate for Iraq because of the authoritarian nature of the deposed government.20 John Yoo was so concerned that the previous government engaged systematically in acts of torture that he argued that keeping its juridical apparatus in place was incompatible with the human rights obligations of the United States under the Fourth Geneva Convention.21 Less creative scholars generally accepted the necessity for these reforms but they doubted that they were as a whole in conformity with the laws of occupation.22 Critical legal scholars generally abstained from making general pronouncements about the legality or illegality of the reforms. Instead, they focused on the historical lineages of the events, which they saw as yet another instance of making and remaking Third World statehood through international law and institutions. Natarajan summarised this heterodox approach as follows: Angry articles were written in academic journals and newspapers condemning the legal reasoning of the Coalition and its few supporters. It was easy to sympathize with scholarly indignation. The invasion was in many ways an affront to international law, particularly the laws on the use of force. At the same time, there was something faintly familiar about the Coalition’s reasoning for the invasion. This feeling of déjà vu escalated

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20

21 22

Geneva Convention Relative to the Protection of Civilian Persons in Time of War (adopted 12 August 1949, entered into force 21 October 1950) 75 UNTS 287, art. 64. Russell Buchan, International Law and the Construction of Liberal Peace (Oxford/Portland, OR: Hart Publishing 2013) pp. 199–208; David J. Scheffer, ‘Beyond Occupation Law’ (2003) 97 American Journal of International Law 842–60; John Yoo, ‘Iraqi Reconstruction and the Law of Occupation’ (2004) 11 University of California Davis Journal of International Law and Policy 7–22. The United Kingdom had also received a legal opinion that Resolution 1483 took them ‘beyond the laws of occupation’. See: Sir John Chilcot et ale., Report of the Iraq Inquiry (London: Cabinet Office 2016) vol. 7, p. 189 [343]. Yoo, ‘Iraqi Reconstruction’, 24. For some examples, see: Gregory H. Fox, Humanitarian Occupation (Cambridge: Cambridge University Press 2008) p. 267; Luis F. Eslava Arcila, ‘Occupation Law: (Mis)use and Consequences in Iraq’ (2007) 21 Revista Contexto 79–114; Rüdiger Wolfrum, ‘Iraq – From Belligerent Occupation to Iraqi Exercise of Sovereignty: Foreign Power versus International Community Interference’ (2005) 9 Max Planck Yearbook of United Nations Law 1–45; Eyal Benvenisti, The International Law of Occupation (2nd edn, Oxford: Oxford University Press 2012) p. 268.

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once regime change was implemented and the Coalition began the task of nation-building. The idea of recreating Iraq – trying to change it for the better – was not a new one.23

Drawing from such critical approaches and, more generally, from an understanding of international law as a bounded terrain of argumentation, instead of a clear benchmark against which acts can be measured and assigned a clear value (legal/illegal), I argue that both Resolution 1483 and the CPA’s reforms can be better understood as enacting the ‘standard of civilisation’ and that therefore, they constantly oscillate between a ‘logic of improvement’ and a ‘logic of biology’. Within this context, Iraq’s rehabilitation as an equal sovereign became conditional upon its externally guided transformation into a model neoliberal state.24 Even though a detailed account of the relationship between neoliberalism, international law and the state is beyond the scope of my argument, it is important to briefly sketch my understanding of this interplay, so that it becomes clear why it is that I argue that in the post-Cold War context the ‘logic of improvement’ was equated not just with capitalism, but with a particular model of capitalist accumulation, neoliberalism. I understand neoliberalism to be both a set of ideas and an actually existing model of capitalist accumulation that ‘rests upon the idea of generalized competition and state intervention for the construction, guarantee and expansion of these competitive relations in an everincreasing sphere of social co-existence, including the structure and functions of the state itself.’25 In terms of material relations of production 23

24

25

Natarajan, ‘Creating and Recreating Iraq’, 799–822, 800. See also: Hilary Charlesworth, ‘Law after War’ (2007) 8 Melbourne Journal of International Law 233–47; Anne Orford, ‘The Destiny of International Law’ (2004) 17 Leiden Journal of International Law 441–76; Ntina Tzouvala, ‘Food for the Global Market: The Neoliberal Reconstruction of Agriculture in Occupied Iraq (2003–2004) and the Role of International Law’ (2017) 17 Global Jurist 1–27; Kerry Rittich, ‘Occupied Iraq: Imperial Convergences?’ (2018) 31 Leiden Journal of International Law 479–508. It is worth bearing in mind that Iraq’s position as an ‘outlaw state’ predated the 2003 invasion by at least a decade: ‘This mixed informal and formal criminal regime imposed on Iraq has made it the paradigmatic case of outlawry at the beginning of the twenty-first century.’ Gerry Simpson, Great Powers and Outlaw States: Unequal Sovereigns in the International Legal Order (Cambridge: Cambridge University Press 2004) p. 294. Ntina Tzouvala, ‘Chronicle of a Death Foretold? Thinking about Sovereignty, Expertise and Neoliberalism in the Light of Brexit’ (2016) 17 [Special Brexit Supplement] German Law Journal 117–24, 120–1. For an early account of the role of international financial institutions in re-creating the state in accordance with the imperatives of neoliberalism, see: Anne Orford and Jennifer Beard, ‘Making the State Safe for the Market: The World

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and distribution, the ascendance of neoliberalism was characterised by the proliferation of global value chains, the dominance of financial capital over other sectors, a strengthening of big, concentrated capital over small, and of capital more broadly over both the working classes and overall society but also the natural world.26 It is precisely by situating the war on terror and the occupation of Iraq within this political economy context that we can get a fuller account of its global ordering functions. As Boukalas has argued, our understanding of the post-9/11 reaction of the United States and the initiation of a global, never-ending war on terror is radically incomplete if we ignore its function as an enabler of state re-organisation according to the imperatives of capitalist profitability while securing social consensus through the rhetoric of security, patriotism and even civilisational conflict: ‘counterterrorism pertains to a restructuring of the state so that it can manage recurring economic crises, while preventing political crisis.’27 In other words, the events of 9/11 enabled the United States to channel vast amounts of public money into private hands on a discretionary and largely secretive basis.28 The homeland security sector, which included the traditional defence industry, chemicals and pharmaceuticals and private security firms were the main recipients of this pro-capital state interventionism.29 Furthermore, these transformations were not confined to the United States but acquired a global dimension. Often, these transformations were endogenous, but both the occupation of Iraq and the ‘unwilling or unable’ doctrine can be understood as efforts to remake states in the Global South in accordance with the imperatives of a historically singular convergence between neoliberalism and militarisation. Indeed, conforming with these imperatives emerged as a necessary precondition for political communities to be granted equal inclusion within the international legal order. In the case of Iraq, critics

26

27

28

29

Bank’s World Development Report 1997’ (1998) 22 Melbourne University Law Review 195–216. David Harvey, A Brief History of Neoliberalism (Oxford: Oxford University Press 2005) pp. 32–3. Christos Boukalas, ‘Class War-on-Terror: Counterterrorism, Accumulation, Crisis’ (2015) 8 Critical Studies on Terrorism 55–71, 56 (emphasis as in the original). A recent study estimated that by the end of financial year 2019 $5.9 trillion USD will have been spent or obligated to the war on terror by the US federal government alone: Neta C. Crawford, ‘United States Budgetary Costs of the Post-9/11 Wars through FY2019: $5.9 Trillion Spent or Obligated’ (Watson Institute for International and Public Affairs, 14 November 2018). Boukalas, ‘Class War-on-Terror’, 60.

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disproportionately focused their attention on the undeniably important issue of oil revenues, often ignoring the fact that the transformative exercise was much broader and deeper. In fact, the reforms promoted by the CPA permeated all aspects of the occupation, including supposedly neutral or undeniably benevolent exercises such as the restoration of punitively dried wetlands,30 as well as all aspects of the Iraqi state apparatus. When arguing within this register of profound transformation, the CPA and international lawyers equated neoliberalism with ‘civilisation’ and both with the redemption of Iraq as an equal international legal subject. This promise of equal inclusion was constantly negated by the fact that the juridical reference points of reform were the laws of occupation and Resolution 1483 in the first place. Iraqis were seen as either malicious or passive – as unwilling or unable of endogenous reform. It was, therefore, up to international forms of authority to safeguard the necessary transformations. These representations of Iraqis as excessively violent and/or as passive and deceptive rationalised these forms of international authority, while also constantly deferring the prospect of equal sovereignty. Therefore, and despite the fact that democracy and respect for human rights had been central in the pro-invasion rhetoric, the CPA went to great lengths in order to ensure the enshrining of its reforms even after the formal end of the occupation. More broadly, it promoted a very restricted and impoverished idea of democratisation, while resorting to increasingly authoritarian practices in order to suppress the mounting resistance to the occupation.31 It is precisely by unconsciously registering this oscillation between these two logics that we can make sense of Fox’s exasperation when he observed that: ‘The resolution itself echoes this schizophrenia, espousing both a commitment to reform and fidelity to international law within a single paragraph.’32 In this context, contradiction is not a faulty element of Resolution 1483 that can be simply eliminated through skilful legal interpretation. Rather, legal arguments 30

31

32

On the restoration of Iraq’s marshlands as a tool of propaganda and corporate profiteering that paid scant attention to the interests and wishes of the marshlands’ residents, see: Bridget Guarasci, ‘Environmental Rehabilitation and Global Profiteering in Wartime Iraq’ (Watson Institute for International and Public Affairs, 23 April 2017). Susan Marks has articulated the most persuasive critique of ‘low intensity’ democracy as the most common understanding of the post-Cold War ‘norm of democratic governance’: Susan Marks, The Riddle of All Constitutions: International Law, Democracy, and the Critique of Ideology (Oxford: Oxford University Press 2003). Fox, Humanitarian Occupation, p. 260.

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around the occupation and the permissible reforms were animated by the ‘standard of civilisation’, which as an argumentative pattern concerning the distribution of rights and duties is inherently contradictory and slips constantly between conditional inclusion and permanent subjugation. To fully comprehend this constant oscillation between the ‘logic of improvement’ and the ‘logic of biology’ as constitutive of the ‘standard of civilisation’ it is worth returning to Resolution 1483 as well as to the ways it was invoked by the CPA to justify its extensive reform project. The ‘logic of improvement’ ran through the text of the resolution, which contained references to the ‘creation of conditions in which the Iraqi people can freely determine their own political future’,33 the ‘efforts to restore and establish national and local institutions for representative governance, including by working together to facilitate a process leading to an internationally recognized, representative government of Iraq’,34 and encouragement of ‘international efforts to promote legal and judicial reform’.35 Enumerating the responsibilities of the Special Representative of the UN Secretary-General, who acted as the main locus of the United Nations’ engagement with Iraq, Resolution 1483 dealt extensively with the economic reconstruction of Iraq with a view to ‘promoting economic reconstruction and the conditions for sustainable development, including through coordination with national and regional organizations, as appropriate, civil society, donors, and the international financial institutions’.36 Resolution 1483 also followed the standard practice of UN-led international territorial administrations and engaged the international financial institutions in the reconstruction of Iraq.37 As Koskenniemi has pointed out, ‘once one knows which institution will deal with an issue, one already knows how it will be disposed of’.38 In 2003, the choice of engaging the International Monetary Fund and the World Bank in the reconstruction of Iraq indicates a far-reaching project of neoliberal reconstruction, or to return to the terms of my own argument, Resolution 1483 enacted the ‘logic of improvement’ equating ‘civilisation’ 33 34 35 36 37

38

UNSC Res 1483, para. 4. Ibid., para. 8 (emphasis added). Ibid. Ibid. Ibid. For the role of international financial institutions in the internationally administered Bosnia–Herzegovina and in East Timor, see: Anne Orford, Reading Humanitarian Intervention, pp. 127–40. Μartti Koskenniemi, ‘The Fate of Public International Law: Between Technique and Politics’ (2007) 70 Modern Law Review 1–30, 23.

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with the neoliberal state. The UN Secretary-General further articulated this ‘logic of improvement’ when he specifically focused on the need for Iraq to be transformed into a free-market economy: ‘[i]t is against the backdrop of this situation, further exacerbated by the recent war and the attendant breakdown of social services, that the development of Iraq and the transition from a centrally planned economy to a market economy needs to be undertaken.’39 The CPA invoked repeatedly both Resolution 1483 and the report of the UN Secretary-General, in order to affirm the legality and legitimacy of its actions.40 In this respect, the CPA made clear early on its intention to undertake sweeping reforms in Iraq with its first issued regulation, through which it assumed ‘all executive, legislative and judicial authority necessary to achieve its objectives’41 and vested orders and regulations of the CPA with superior legal validity in relation to Iraqi law.42 Subsequently, with its first order, the CPA promoted the removal of Ba’ath members from public administration in an attempt to foster the deBa’athification of Iraqi society.43 In practice, this meant that members of the top three levels of the party were directly removed and banned from public positions and that all individuals occupying significant positions in the administration were deemed suspect of having ties with the Ba’ath Party. This initiative was practically inseparable from the decision to reconstruct Iraq into a neoliberal, outsourced state. DeBa’athification was consistent with the idea of a limited public sector that would denounce ideas of central planning and subscribe to an 39

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UN Security Council, ‘Report of the Secretary-General Pursuant to Paragraph 24 of Security Council Resolution 1483’ (17 July 2003) S/2003/715, para. 84. It was a standard practice of the CPA to invoke UNSC Resolution 1483 in the preambles of its orders/regulations. See, e.g.: Coalition Provisional Authority, ‘Trade Bank of Iraq’ (Order 20, 17 July 2003) CPA/ORD/17 July 2003/20. Invoking the report of the UN Secretary-General see e.g.: Coalition Provisional Authority, ‘Patent, Industrial Design, Undisclosed Information, Integrated Circuits and Plant Variety Law’ (Order 81, 26 April 2004) CPA/ORD/26 April 2004/81. Coalition Provisional Authority, ‘The Coalition Provisional Authority’ (Regulation 1, 16 May 2003) CPA/REG/16 May 2003/01, s. 1.2. ‘Unless suspended or replaced by the CPA or superseded by legislation issued by democratic institutions of Iraq, laws in force in Iraq as of April 16, 2003 shall continue to apply in Iraq insofar as the laws do not prevent the CPA from exercising its rights and fulfilling its obligations, or conflict with the present or any other Regulation or Order issued by the CPA.’ Ibid., s. 2. Coalition Provisional Authority, ‘De-Ba’athification of Iraqi Society’ (Order 1, 16 May 2003) CPA/ORD/16 May 2003/01, Coalition Provisional Authority, ‘Establishment of the Iraqi de-Ba’athification Council’ (Order 5, 25 May 2003) CPA/ORD/25 May 2003/05.

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intensive free-market ethos. The head of the CPA, Paul Bremer, acknowledged that de-Ba’athification ‘demonstrated that we intended not just to throw out the brutal tyranny of Saddam, but also to establish in its place a new political order’.44 The CPA’s commitment to altering the prevalent economic and administrative structure of Iraq was also evident in its initiative to organise weekly ‘free-market’ seminars for ‘people from the ministries, Iraq’s nascent “private sector”, and younger potential political leaders’.45 After all, it was Bremer’s publicly stated position that: ‘[m]arkets allocate resources much more efficiently than politicians.’46 Addressing the World Economic Forum, he made a clear reference to post-communist states as an inspiration and blueprint for the reconstruction of Iraq: ‘[i]n the past 15 years, other countries have attempted to break this cycle. The experience of these economies shows that there is no substitute for a vibrant private sector.’47 Following these precedents of accelerated capitalist transformation, tax and investment laws were drastically reformed, tariffs were abolished overnight and monetary policy was disconnected from popular, democratic politics all in the course of a brief formal occupation. For example, one of the most profound reforms was the introduction of an income tax rate of a maximum of 15 per cent both for individuals and corporations.48 In an explanatory note, the CPA defended the flat 15 per cent corporate income tax rate as follows: This low rate, compared to the prior rate of up to 40 per cent, will encourage reinvestment of company profits. This in turn will encourage increased capital investment and job creation in Iraq by private sector

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L. Paul Bremer III, My Year in Iraq: The Struggle to Build a Future of Hope (New York: Simon & Schuster 2006) p. 45. Ibid., p. 63. Ibid., p. 835. Ibid. ‘Coalition officials relied heavily on the experiences of Eastern Europe and the former Soviet Union in assembling their transition blueprint for Iraq. Based on their review of reforms in these societies, Coalition officials concluded that the blueprint contained four components: stabilization, liberalization, privatization, and legal and regulatory reform.’ Anne E. Henderson, The Coalition Provisional Authority’s Experience with Economic Reconstruction in Iraq: Lessons Identified (Special Report 138, Washington: United States Institute of Peace 2005) p. 11. ‘The highest individual and corporate income tax rates for 2004 and subsequent years shall not exceed 15 per cent.’ Coalition Provisional Authority, ‘Tax Strategy for 2003’ (Order 37, 19 September 2003) CPA/ORD/19 September 2003/37, s. 4. Order 37 was updated, but not substantively altered in February 2004: Coalition Provisional Authority, ‘Tax Strategy of 2004’ (Order 49, 19 February 2004) CPA/ORD/19 February 2004/49.

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firms. The lower flat rate also will lead to increased revenue collection as companies respond to Iraq’s transition to a free market-based economy.49

The reform of investment law was also underpinned by the same conception about acceptable economic models and the bases of growth and prosperity. The preamble of Order 39 exemplified this view. Foreign direct investment was identified as the single most important means that ‘will help to develop infrastructure, foster the growth of Iraqi business, create jobs, raise capital, result in the introduction of new technology into Iraq and promote the transfer of knowledge and skills to Iraqis’.50 Order 39 removed all nationality restrictions on foreign investment, enabling foreign companies and individuals to own as much as 100 per cent of the investment, with the exception of direct investment in natural resources.51 Perhaps more crucially, Order 39 enabled foreign investors to: transfer abroad without delay all funds associated with its foreign investment, including: i) shares or profits and dividends; ii) proceeds from the sale or other disposition of its foreign investment or a portion thereof; iii) interest, royalty payments, management fees, other fees and payments made under a contract; and iv) other transfers approved by the Ministry of Trade.52

In practice, such unrestricted capital flows deprived the state of the capacity to tax investment revenues efficiently, and even combat criminal activities, such as corruption or money laundering. At the same time, the future of state-owned enterprises (SOEs) became a thorny issue for the CPA, the Iraqi Governing Council, and for Iraqi society. The starting point of this engagement was that ‘[i]n the long term, the CPA planned to “corporatize and privatize” the SOEs. Initially, the CPA aimed for small-scale privatization or leasing of competitive SOEs.’53 This divergence between long-term and short-term plans was due to popular reactions in Iraq as well as the reluctance of the CPA’s international lawyers, who advised against outright privatisations, raising issues of

49 50

51 52 53

Ibid. Coalition Provisional Authority, ‘Foreign Investment’ (Order 39, 19 September 2003) CPA/ORD/19 September 2003/39. Ibid., s. 6.1. Ibid., s. 7.2.d. James Dobbins et al., Occupying Iraq: A History of the Coalition Provisional Authority (Santa Monica, CA: RAND Corporation 2009) p. 225.

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compliance with the laws of occupation.54 Nonetheless, the CPA promoted the minimisation of the public sector in several intertwined ways. First, the CPA outsourced – without directly privatising – numerous core public functions. Both primary and secondary education, water and sanitisation, and the construction of significant infrastructure projects were awarded to private companies, usually USA ones. Such was the commitment of the CPA to privatisation that the occupation force itself was thoroughly privatised. A good example here is the practice of the Program Management Office (PMO), an authority set up by the CPA to manage the reconstruction of Iraq. The PMO had authority over the reconstruction of six major domains: electricity, public works and water, security and justice, communications and transportation, oil, and buildings, education, and health.55 According to the report of the US Special Inspector General for Iraq Reconstruction, instead of the CPA or the PMO carrying out the reconstruction efforts, they outsourced the process to private firms: ‘[t]he twelve “design-build” construction contractors were awarded indefinite delivery, indefinite quantity cost-plus contracts for design, engineering, and physical work in the sectors.’56 In other words, the CPA had outsourced its own administrative functions to the extent that it ‘ultimately outsourced to private contractors much of the program-management and oversight responsibilities, thus diluting the government’s authority’.57 The CPA’s engagement with reforms that had a long-term impact for Iraq, such as privatisations, went even further. One of the least debated, but highly influential, reforms of the CPA was the establishment of an independent central bank. Order 18 stipulated that ‘[t]he CBI [Central Bank of Iraq] shall have the authority to determine and implement monetary and credit policy without the approval of the Ministry of Finance.’58 Hence, fiscal and monetary policy were removed from direct

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‘CPA lawyers were generally opposed to the sale of Iraq’s industries, on the grounds that such sales violated the Hague Convention. What if a sovereign Iraqi government objected to privatization? You couldn’t reverse the sale of a factory. Better to leave it to a future Iraqi administration, the CPA lawyers said.’ Rajiv Chandrasekaran, Green Zone: Imperial Life in the Emerald City (Oxford: Bloomsbury 2010) p. 131. Special Inspector General for Iraq Reconstruction, ‘Hard Lessons: The Iraq Reconstruction Experience’ (Washington: Government Printing Office 2009) p. 107. Ibid., p. 108. Ibid., p. 106. Coalition Provisional Authority, ‘Measures to Ensure the Independence of the Central Bank of Iraq’ (Order 18, 7 July 2003) CPA/ORD/07 July 2003/18, s. 2.

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political control,59 and decision-making in this domain was reserved for specialists and bureaucrats.60 The danger of hyperinflation was invoked to justify this choice. Hussein’s regime habitually opted to print money to counter Iraq’s serious economic issues, contributing to extremely high inflation levels. By removing fiscal policy from the terrain of popular politics and democratic deliberation, the CPA directly impacted upon the scope of this very democratic deliberation. Even if Iraq was to become a model liberal democratic state, its citizens would be fundamentally deprived of the right to decide (directly) on questions of fiscal policy. Therefore, Order 18 both delimited the scope of democracy by removing a crucial policy area from the domain of democratic deliberation, and it created a ‘mismatch’ between the means and ends of policy-making that sows the seeds of crisis for democratic government. It is precisely in regard to the ‘democratisation’ project of occupied Iraq that the limits of the ‘logic of improvement’ become evident and the argumentation of the CPA shifted towards what I have called ‘the logic of biology’: the idea that Iraqi society and Iraqis were fundamentally different to their occupiers in ways that were impossible to rectify or even to fully comprehend. A series of statements and political choices by major figures involved with the reconstruction of Iraq support the argument that a formal, limited and weak model of democracy was deemed the only functional model given the supposedly unfree, immature and deceitful character of Iraqis. For example, Paul Bremer stated that: ‘[m]ost Iraqis have no experience of free thought. They vaguely understand the concept of freedom, but still want us to tell them what to do.’61 The CPA habitually dismissed or manipulated Iraqi objections regarding economic reforms.62 Order 39, on investment law reform, provides a good example 59

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This was explicitly stated in the preamble to Order 18: ‘Understanding that CBI’s credit and monetary policy must be free from political or other governmental interference.’ Ibid. (emphasis as in the original). ‘Only members of the CBI Board who are CBI employees serving with the approval of the Administrator may decide matters determining or implementing monetary and credit policy.’ Ibid. Bremer, My Year in Iraq, p. 71. ‘Iraqis, like many of their Arab neighbors, were wary of full foreign ownership of domestic businesses and the privatization of the oil industry. But USAID and Treasury required the contractor to promote investment laws that would be “blind as to whether the investor is from that country or elsewhere” . . . Notably absent from the thick plan was much reference to consultation with Iraqi leaders or even an interim Iraqi government. USAID and Treasury knew what Iraq needed.’ Chandrasekaran, Green Zone, p. 129.

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of this attitude. When the Iraqi Governing Council objected to the reforms, the CPA, instead of dropping the plan, invited World Bank experts to press them further.63 Moreover, whenever public opinion was unfavourable to the decisions of the administration, CPA officials or friendly commentators habitually blamed Iraqis instead of questioning the reforms. In a study funded by the National Security Research Division, the authors concluded that Iraqis were disappointed with the CPA’s economic management and that this was their own fault: ‘[t]his was in a large measure the product of wildly unrealistic Iraqi expectations.’64 Crucially, this restrictive understanding of what democracy meant for Iraq blended older tropes of colonial administration with new perceptions of peacekeeping sanctioned by the United Nations. The Report of the Panel on United Nations Peace Operations (the Brahimi Report) that was published a few years before the invasion warrants some attention.65 Being highly critical of the United Nations’ approach to peacekeeping thus far, the Report recommended a more pro-active and partisan approach to peacekeeping missions. For example, calling for mandates that enable peacekeepers to use force, the Brahimi Report stated that ‘the Secretariat must not apply best-case planning assumptions to situations where the local actors have historically exhibited worst-case behaviour’.66 The assumption that it is the behaviour of the locals that undermines these missions – and not, for example, the failings of the United Nations – reveals a preconception of local populations as inherently belligerent, hostile, or irrational. To recall Said: ‘Orientals are inveterate liars, they are “lethargic and suspicious”, and in everything oppose the clarity, directness, and nobility of the Anglo-Saxon race.’67 Orford has argued convincingly that this trend towards associating the local or national level with conflict, strife and disorder, and the international realm with peace, harmony and stability, runs at the core of international law after the Cold War.68

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66 67 68

Dobbins et al., Occupying Iraq, p. 213. Ibid., pp. 238–9. UN General Assembly, ‘Report of the Panel on United Nations Peace Operations’ (21 August 2000) A/55/305-S/2000/809. Ibid., para. 51. Εdward Said, Orientalism (New York: Vintage Books 1979) p. 39. Anne Orford, ‘Locating the International: Military and Monetary Interventions after the Cold War’ (1997) 38 Harvard International Law Journal 443–85.

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Similarly, arguing for the need of a proactive approach to peacekeeping, the Brahimi Report stated that in certain cases a lack of action ‘may amount to complicity with evil’.69 Conflicts in the periphery were, thus, understood as a battle between good – often represented by the ‘international community’ and by innocent victimhood – and evil, and not as complex political conflicts that can be resolved through political means. Finally, openly expressing its scepticism towards local political structures of deliberation, the Brahimi Report asserted that, even though consent is important, ‘in the context of intra-State/transnational conflicts, consent may be manipulated in many ways’.70 Moreover, the Brahimi Report revealed a preference against local legislation, perceiving it as a tool at the hands of ‘powerful local political factions’ and ‘crime syndicates’.71 On the occasion of the 2000 Millennium Summit, the UN Security Council ‘welcomed’ the Brahimi Report,72 and later that year it committed to improving its peacekeeping decision-making and requested the UN Secretariat to develop a military peacekeeping doctrine.73 Despite both external perceptions and the self-image of the Bush administration as exceptional, the enactment of this ‘logic of biology’ by the CPA was not an isolated incident, but reflected broader trends of justifying intrusive peace-keeping and peace-building with explicit invocations of unbridgeable differences between international peacekeepers or peacebuilders and those on the receiving end of such experiments. Going back to occupied Iraq, the CPA was determined to dictate the pace and the modalities of Iraq’s transition to democracy leaving limited, if any, space for popular mobilisation. In this context, the CPA intervened to stop provincial elections when it was worried about their outcome, as happened in Najaf, in central Iraq.74 Moreover, and even though the quick establishment of a democratic regime appeared to be a shared goal of the United Nations and the CPA, the fact-finding mission 69 70 71 72 73

74

‘Report of the Panel on United Nations Peace Operations’, ix. Ibid. Ibid., paras. 76–83. UNSC Res 1327 (13 November 2000) S/RES/1327. UN Security Council, ‘Letter dated 30 November 2000 from the President of the Security Council to the Secretary-General’ (30 November 2000) S/2000/1141. ‘When Scott Carpenter, CPA’s Director of Governance, found out about Conway’s plan, he told him that Iraq had neither a constitution nor an electoral law upon which to base such an election. Ambassador Bremer also said he was concerned that Shi’a Islamist parties “would clamor for them across the south since they were most likely to win in those early days.” At the last moment, the CPA persuaded Conway to cancel the elections.’ ‘Hard Lessons’, 116.

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led by the Secretary-General’s Special Adviser advised against holding elections before the end of June 2004.75 This view was then endorsed by UN Security Council Resolution 1546, which designated January 2005 as the new deadline.76 This was the case despite multiple voices from both in and outside Iraq warning that postponing the elections would aggravate the then-escalating crisis. These events indicate how the political reforms in Iraq ‘have sought to establish democracy in one sense of the term, while blocking it in a different sense’.77 Similarly, the relation of the CPA with civil liberties and human rights in Iraq was complicated and contradictory. While human rights rhetoric was central to the invasion and the occupation, since the CPA consistently declared that it had liberated Iraq and the Iraqis,78 the facts on the ground were somewhat less idyllic. Order 14 prohibited any media activity that advocated the return of the Ba’ath party to power,79 while Order 19 placed heavy restrictions upon the right to protest that practically impaired its exercise.80 Similarly, the CPA devoted much of its energy in trying to restrain Al-Jazeera’s broadcasting. Even accounts of the occupation sympathetic to the CPA acknowledge that senior Bush administration officials had unsuccessfully contacted Qatar, trying to alter the ‘tone and content’ of Al-Jazeera’s reporting,81 and Decision 48 of the Iraqi Governing Council shut down the broadcaster for one month.82 In the absence of formal democratic institutions, the CPA adopted a restrictive approach to the

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UN Security Council, ‘Letter dated 23 February 2004 from the Secretary-General to the President of the Security Council’ (23 February 2004) S/2004/140. UNSC Res 1546 (8 June 2004) S/RES/1546. Noam Chomsky, ‘The Struggle for Democracy in the New World Order’ in Barry Gills, Joel Rocamora and Richard Wilson (eds.), Low Intensity Democracy: Political Power in the New World Order (London/Boulder, CO: Pluto Press 1993) 80–99, p. 80. Shortly before the invasion of Iraq, George W. Bush publicly stated that: ‘America’s interests in security, and America’s belief in liberty, both lead in the same direction: to a free and peaceful Iraq. The first to benefit from a free Iraq would be the Iraqi people, themselves. Today they live in scarcity and fear, under a dictator who has brought them nothing but war, and misery, and torture. Their lives and their freedom matter little to Saddam Hussein – but Iraqi lives and freedom matter greatly to us.’ G. W. Bush, ‘Speech to the American Enterprise Institute’ (The Guardian, 27 February 2003). Coalition Provisional Authority, ‘Prohibited Media Activity’ (Order 14, 10 June 2003) CPA/ORD/10 June 2003/14. Coalition Provisional Authority, ‘Freedom of Assembly’ (Order 19, 9 July 2003) CPA/ ORD/09 July 2003/19, s. 3.2. Dobbins et al., Occupying Iraq, p. 192. Ibid.

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very rights that enable public mobilisation and the political influence of those otherwise unable to access decision-making centres. This restrictive understanding of democracy and the racialised disbelief in the capacity of Iraqis to rule themselves also found expression in the Law of Administration for the State of Iraq for the Transitional Period, Iraq’s transitional constitution that came into effect after the termination of the formal occupation in 2004 and remained in force until 2006. The document was drafted by a ten-man committee in close co-operation with US and UN officials, and came into force on 28 June 2004, when the occupation ended officially. Article 26 stipulated that: ‘The laws, regulations, orders and directives issued by the Coalition Provisional Authority pursuant to its authority under international law shall remain in force until rescinded or amended by legislation duly enacted and having the force of law.’83 By creating a presumption of continuity, and given the climate of instability and the overall dysfunctional political institution created by the occupation, Article 26 meant that the CPA’s reforms were to be maintained, at least until the first democratically elected government reversed them. Moreover, Article 31 stipulated vague, arbitrary or excessively exclusionary criteria as for who could be a nominee for the National Assembly, including having ‘a good reputation’ and a secondary school diploma. In retrospect, we know that the passing of this provisional constitution was a far cry from being the end of the conflict in Iraq or of controversial legal arguments in regard to the region. Rather, as the next section is going to show, protracted conflict and ongoing intervention in the region formed the factual background for legal debates about the ‘unwilling or unable’ doctrine, which, I argue, rely heavily on the ‘standard of civilisation’ as an argumentative structure.

5.2 Unwilling or Unable: The Uneven Distribution of Violence and Rights in Contemporary Legal Argumentation To state that 9/11 and the ongoing war on terror have posed profound challenges to different fields of international law, including international humanitarian law, international human rights law and the law on the use of force, is somewhat of a truism. Currently, the prevalent disciplinary narrative about the war on terror and the laws on the use of force goes as follows: the UN Charter established a relatively clear, inflexible, state83

Law of Administration for the State of Iraq for the Transitional Period (Iraq) 8 March 2004, art. 26.

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centric regime on the use of force, which was conscious of the evils of war and sought to restrict recourse to force. The Cold War partly distorted this regime, since the UN Security Council remained inactive. 9/11 raised urgent questions about self-defence against non-state actors, as well as questions of pre-emption and use of force in ‘ungoverned’ territories. At this point, the strict, state-centric nature of these rules came under fire. Both proponents and critics of what was perceived to be the pre-9/11 legal order generally – yet not uniformly84 – agree around this narrative, while disagreeing about the appropriateness of this legal framework and arriving at different conclusions about whether the previous rules have been effectively challenged. Therefore, the discipline is commonly understood to be divided into two camps, the restrictivists and the expansionists, or, in terms of geographic representation and academic background, the Europeans and the Americans.85 In terms of politics, the restrictionists habitually accuse the expansionists of undermining international law as a means of effectively restricting state conduct, while the expansionists retort that international law ought to be in touch with the real world and the practice of states. Neat as it may be, this narrative starts collapsing once put under pressure. The idea of an unambiguous restrictionist legal regime before 9/11 erases multiple controversies about the content of the law during the Cold War and the fact that major powers repeatedly put forward expansive arguments about their right to use force.86 What is more, if we turn our interest to the jurisprudence of Third Worldist lawyers, the divide between restrictionism and expansionism becomes destabilised.87 In the aftermath of the Second World War, Third Worldist jurists attempted to 84

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For a poignant critique of the ‘newness’ of 9/11 and its legitimising functions, see: Obiora Chinedu Okafor, ‘Newness, Imperialism, and International Legal Reform in Our Time: A Twail Perspective’ (2005) 43 Osgoode Hall Law Journal 171–91. For some typical examples of this framing of the debate, see: Jörg Kammerhofer, ‘Introduction: The Future of Restrictivist Scholarship on the Use of Force’ (2016) 29 Leiden Journal of International Law 13–18; Raphael Van Steenberghe, ‘The Law of SelfDefence and the New Argumentative Landscape on the Expansionists’ Side’ (2016) 29 Leiden Journal of International Law 43–65. ‘The present, messy, situation is assessed against a clear background – the “old days” when the law was certain. The problem is that it wasn’t.’ Christian Tams, ‘Embracing the Uncertainty of Old: Armed Attacks by Non-State Actors Prior to 9/11’ (2017) 77 ZaöRV 61–4, 61. ‘[C]ritical and TWAIL scholars, while being sympathetic to the restrictionist camp, cannot stay permanently within it.’ Anne-Charlotte Martineau, ‘Concerning Violence: A Post-Colonial Reading of the Debate on the Use of Force’ (2016) 29 Leiden Journal of International Law 95–112, 96.

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restrict Western, imperialist violence, while reserving the right of colonised peoples but also of recently decolonised states to use force in order to achieve anti-imperialist aims.88 Similarly, contemporary international lawyers from the Global South are producing rich and contradictory analyses that are difficult to enlist for one camp.89 Finally, the relationship between past and present understood as a linear succession between clearly defined rules where 9/11 operates as a watershed moment cannot be sustained if we read closely the relevant texts. Indeed, influential advocates of the ‘unwilling or unable’ doctrine, such as Ashley Deeks, argue that they are not putting forward a new, innovative rule at all, but they rather record and decode centuries of state practice.90 The frequent invocations of examples dating back to the nineteenth century by those who also argue that past legal arrangements are profoundly inadequate for contemporary problems also hint at a complicated relationship between law and time that does not conform with neat delimitations between past and present, nor with a linear idea of time. Overall, the perception of 9/11 as a turning point for international law can better be understood as an attempt to gain political capital than as plausible legal history. Indeed, as critics have shown, and as many advocates for change have also implicitly or explicitly acknowledged, 9/11 can be understood at the most as a catalyst – and not as the cause – of the proliferation of expansionist arguments. After all, both the United States and Israel have been putting forward arguments about the lawfulness of extraterritorial targeting of those who they consider threats to their national security since at least the 1980s.91 88

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On the example of post-colonial India forcibly annexing the Portuguese colony of Goa, see: Nathaniel Berman, ‘Legitimacy through Defiance: From Goa to Iraq’ (2005) 23 Wisconsin International Law Journal 93–125. Amongst many: Dawood I. Ahmed, ‘Defending Weak States against the “Unwilling or Unable” Doctrine of Self-Defense’ (2013) 9 Journal of International Law and International Relations 1–37; Pemmaraju Seerivasa Rao, ‘Non-State Actors and Self-Defence: A Relook at the UN Charter Article 51’ (2016) 56 Indian Journal of International Law 127–71; Alejandro Rodiles, Coalitions of the Willing and International Law: The Interplay between Formality and Informality (Cambridge: Cambridge University Press 2018) pp. 61–3; Waseem Ahmad Qureshi, ‘The Use of Force against Perpetrators of International Terrorism’ (2018) 16 Santa Clara Journal of International Law 1–36. Deeks states that she ‘examines several centuries of state practice to propose a core set of substantive and procedural factors to assess when it is lawful and legitimate for a victim state to use force against a nonstate actor in another state’s territory.’ Ashley Deeks, ‘“Unwilling or Unable”: Toward a Normative Framework for Extra-territorial SelfDefense’ (2012) 52 Virginia Journal of International Law 483–548, 490. See, for example, Gunneflo’s argument that legal debates around targeted killings date back to the 1980s, despite the rhetorical efforts to attribute their rise to 9/11: Markus

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If this approach is, indeed, futile, it is worth revisiting these arguments as arguments and not as shadows of legal rules that exist independently of them. The ‘unwilling or unable’ doctrine proposes that when a state is subject to an armed attack perpetrated by non-state actors based in the territory of another state, the ‘victim state’ is entitled to use force extraterritorially in self-defence even if the actions of these non-state actors are not attributable to the ‘territorial state’, provided that the territorial state is ‘unwilling or unable’ to stop such attacks.92 The language employed here is neither neutral nor innocent. It is well-documented that considerable disparities of power exist between the states that habitually invoke the doctrine and those at the receiving end of the violence it authorises.93 For example, Deeks invokes the bombing campaign of the United States in Cambodia as a precedent of the invocation of the doctrine.94 In the course of that campaign, a (conservatively) estimated 50,000 to 150,000 Cambodian civilians were killed and over 500,000 tonnes of bombs were dropped by the United States. Designating those who employ this violence, often pre-emptively, as the ‘victim state’ performs an important legitimising function and rhetorically redistributes empathy and legitimacy. Besides the terminological acrobatics, the doctrine remains controversial and its precise legal character is unclear. Some scholars argue that ‘unwilling or unable’ is part of the necessity and proportionality test for self-defence,95 others that it is linked to neutrality law and/or a state’s obligation not to knowingly allow its territory to be used in a way that

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93 94 95

Gunneflo, Targeted Killing: A Legal and Political History (Cambridge: Cambridge University Press 2016). Amongst many: Deeks, ‘“Unwilling or Unable”’; Ahmed, ‘Defending Weak States’; Monica Hakimi, ‘Defensive Force against Non-State Actors: The State of Play’ (2015) 91 International Law Studies 1–31; Kimberley N. Trapp, ‘Actor-Pluralism, the “Turn to Responsibility” and the Jus Ad Bellum: “Unwilling or Unable” in Context’ (2015) 2 Journal on the Use of Force and International Law 199–222; Jutta Brunnée and Stephen J. Toope, ‘Self-Defence against Non-State Actors: Are Powerful States Willing but Unable to Change International Law?’ (2018) 67 International and Comparative Law Quarterly 263–86. See: Ahmed, ‘Defending Weak States’. Deeks, ‘“Unwilling or Unable”’, 513. Trapp, ‘Actor-Pluralism’; Daniel Bethlehem, ‘Principles Relevant to the Scope of a State’s Right of Self-Defense against an Imminent or Actual Armed Attack by Nonstate Actors’ (2012) 106 American Journal of International Law 770–7, 775; Nico Schrijver and Larissa van den Herik, ‘Leiden Policy Recommendations on Counter-Terrorism and International Law’ (2010) 57 Netherlands International Law Review 531–50, 542.

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causes harm to the rights and interests of other states,96 while others link it to the ‘responsibility to protect’. Kimberley Trapp’s recent piece on the doctrine offers an example of this last approach. Both states involved, Trapp argues, have responsibilities in regard to the protection of human life. On the one hand, the ‘victim state’ has a responsibility to protect its own population from cross-border attacks. Within this line of argument, armed self-defence is not exactly a right, but a humanitarian obligation. Crucially though, unlike in the case of ‘responsibility to protect’, ‘unwilling or unable’ does not transfer responsibility to the international community as a whole, should the ‘victim state’ abstain from action.97 Writing in a similar vein, Guy Keinan has argued that ‘unwilling or unable’ is a way of humanising the right to self-defence by thinking about it ‘not only through a prism of abstract concepts such as sovereignty and territorial integrity but also by considering its effects on the lives and well-being of real individuals.’98 On the other hand, the ‘territorial state’ only enjoys sovereignty in its full degree, including the protection of Article 2(4) of the UN Charter, if it is shown to be willing and able to exercise this sovereignty responsibly and protect human life not only in its own territory, but also beyond its borders. This is not an unprecedented argumentative move. As we saw in Chapter 1, the purported inadequacy of the laws of ‘semi-civilised’ states to protect the life and property of Westerners was the justification for extraterritorial jurisdiction throughout the nineteenth and early twentieth centuries. Importantly, purportedly ‘uncivilised’ peoples were also portrayed as insufficiently responsible and therefore undeserving of the gift of sovereignty. Writing about the ‘typical African’ Lugard contended: ‘He lacks the power of organisation, and is conspicuously deficient in the management and control alike of men or business. He loves the display of power, but fails to realise its responsibility.’99 In this context, as in the context of the ‘unwilling or unable’ doctrine, ‘responsibility’ cannot be understood as the specialised legal regime of ‘state responsibility’ that provides remedies in case of breach of primary rules of international law, but rather about the fundamentals of the way political power over people and territory is exercised. For example, in 1825 the British Foreign 96 97 98 99

Deeks, ‘“Unwilling or Unable”’, 497–503. Trapp, ‘Actor-Pluralism’, 212. Guy Keinan, ‘Humanising the Right of Self-Defence’ (2017) 77 ZaöRV 57–9, 58. Lord Lugard, The Dual Mandate in British Tropical Africa (5th edn, London: Frank Cass 1965) pp. 69–70.

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Secretary George Canning understood all (civilised) nations to be ‘reciprocally responsible, that is obliged to carry out the duties that nature has imposed on peoples in their mutual relations’,100 while Carlos Calvo lamented the unwillingness of the Ottoman Empire to exercise its fundamental responsibility to maintain order in its suzerain states, instead of passing it on to the Great Powers.101 Deploying a familiar language, James Lorimer argued that recognition of new states was dependent upon ‘a reasonable presumption that it is able, as well as willing, to perform the duties incident to international existence’.102 These excerpts put pressure on the narrative of a state-centric nineteenth century that is now (fortunately) rectified by the idea of ‘sovereignty as responsibility’ and its practical manifestations, such as the ‘unwilling or unable’ doctrine. Rather, the doctrine can be better understood as a re-worked iteration of familiar ways of arguing about the distribution of rights and duties in the nineteenth century. Indeed, as the preceding chapters have shown, the idea that not all political communities and, after decolonisation, not all states are entitled to the same rights and duties has been a constant in international legal discourse. The ‘unwilling or unable’ doctrine enacts the particular argumentative pattern that I have identified as constitutive of the ‘standard of civilisation’: the oscillation between a ‘logic of improvement’ that makes juridical equality conditional upon capitalist modernity and a ‘logic of biology’ that constantly negates such prospect by invoking purportedly immutable differences. Defenders of the doctrine share a position that the scope of the right to self-defence and, correspondingly, of the prohibition of the use of force depends on a particular form of factual assessment regarding a state’s ability and willingness to suppress terrorism. Such is the emphasis on factual evaluation that Michael Wood went so far as to argue that the applicable law might be of less interest than ascertaining and assessing the relevant facts.103

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Quoted in Carlos Calvo, Le Droit International Théorique et Pratique (4th edn, Pedone: Paris 1887) vol. 1, p. 243. ‘Turkey, the only power that has the right to intervene as suzerain insists in a passive attitude leaving to the other powers the responsibility for a situation in which each appears to be totally disinterested.’ Ibid., pp. 321–2. James Lorimer, The Institutes of the Law of Nations: A Treatise of the Jural Relations of Separate Political Communities (Edinburgh: William Blackwood and Sons 1883) p. 133. Sir Michael Wood, ‘Self-Defence against Non-State Actors – A Practitioner’s View’ (2017) 77 ZaöRV 75–7, 77.

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It is in the course of these supposedly neutral factual assessments that the ‘logic of improvement’ and the ‘logic of biology’ are enacted. Take, for example, Trapp’s invocation of Max Huber’s famous arbitral award in the Island of Palmas case to support her overall argument about ‘sovereignty as responsibility’ and for the ‘unwilling or unable doctrine’ as one of its manifestations: ‘for it [territorial sovereignty] serves to divide between nations the space upon which human activities are employed, in order to assure them at all points the minimum protection of which international law is the guardian.’104 Trapp is not alone in invoking the Island of Palmas award in order to defend the ‘unwilling or unable’ doctrine. Writing in support of the doctrine as well, Antonello Tancredi invoked the arbitration to support his assertion that ‘a State cannot claim full respect for its sovereignty as a right if it does not fulfil the functions that come with that same sovereignty as a duty.’105 Similarly, Georg Nolte has pointed out that the idea of sovereignty as responsibility predates the 2001 report of the International Commission on Intervention and State Sovereignty, going back to the Island of Palmas arbitration.106 The purported advantage of this approach is that sovereignty is anchored to a putatively factual assessment of whether a state exercises sufficient control over territory to effectively protect certain interests deemed to be fundamental by international law. What remains curiously absent from these invocations of the Island of Palmas award is any extensive reference to the concrete dispute that gave rise to Huber’s often-quoted pronouncement or even any serious engagement with the specific manifestations of authority that were deemed necessary and sufficient to ground ‘sovereignty as responsibility’ and to support the conclusion that the island was in its entirety a part of the Netherlands’ territory. In fact, commentators both in the early twentieth century and today have been anxiously reassuring their audience that the specifics of the case are unimportant. Huber himself described the case as one ‘of pure law of nations’ that was not decided based on specific legal provisions but rather on legal principles of the highest order of abstraction.107 In a similar vein, an 104 105

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Island of Palmas Case (Netherlands v US) (1928) 2 RIAA 839 (Island of Palmas). Antonello Tancredi, ‘Doctrinal Alternatives to Self-Defence against Non-State Actors’ (2017) 77 ZaöRV 69–73, 72. Georg Nolte, ‘Sovereignty as Responsibility?’ (2005) 95 Proceedings of the ASIL Annual Meeting 389–92, 391. Ole Spiermann, International Legal Argument in the Permanent Court of International Justice: The Rise of the International Judiciary (Cambridge: Cambridge University Press 2005) p. 296.

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enthusiastic 2007 reappraisal of Huber’s legacy argued that the specific issue at stake was marginal, and in fact, the island and its inhabitants returned to oblivion (!) after the delivery of the award.108 What is lost in these ‘principle’-oriented accounts is that the award did not concern the nature of sovereignty in general, but rather the legal preconditions of colonisation of non-Western lands in particular. Moreover, Huber’s pronouncement of responsibility was an obiter dictum that had little immediate influence on the way the case was decided.109 The mainstream international legal literature on the award also overlooks that the actual facts which were deemed necessary and sufficient to ground Netherlands’ sovereignty-as-responsibility included the production of somewhat accurate maps of the region, the distribution of coats of arms and flags, and the imposition of taxation upon the island’s native population, which in turn forced them to sell their products in other islands in order to collect the money, as well as vague references to the provision of disaster relief.110 In fact, Huber moderated his own grand pronouncements by arguing that: ‘the manifestations of sovereignty over a small and distant island, inhabited only by natives, cannot be expected to be frequent’.111 Overall, paying attention to the record of what counted as a ‘concrete manifestation’ of control over territory reveals that ‘effective control’ had a very peculiar meaning in practice. The importance of these invocations of the Island of Palmas decision for the ‘unwilling or unable’ doctrine will become clearer if we bring into conversation two existing critical readings of the arbitral award. On the one hand, Anne Orford has read the case as illustrative of the gap between the image of the sovereign in Western jurisprudence as an omnipotent force whose power for protection and destruction knows no limits and the reality of legally successful claims to the territory being grounded on much more mundane, ordinary or ambiguous facts.112 Through Orford’s deconstructive reading the sovereign emerges as ‘a 108

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Daniel-Erasmus Khan, ‘Max Huber as Arbitrator: The Palmas (Miangas) Case and Other Arbitrations’ (2007) 18 European Journal of International Law 145–70, 146, 161–2. Khan also concedes this point despite his admiration for Huber’s capacity to abstract. Ibid., 169. Island of Palmas, 865. Ibid., 867. Anne Orford, ‘A Jurisprudence of the Limit’ in Orford, International Law and Its Others, 1–32, p. 8.

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far smaller, more absurd and ridiculous figure’ than we generally assume.113 It is, indeed, difficult not to reach this conclusion when Huber’s analysis deteriorates from the image of the sovereign as the competent and responsible guarantor of rights at home and abroad to a hopeless comparison of whether it was the Dutch or the Spanish who got the name and the cartography of the region less wrong and, therefore, had a stronger claim to sovereignty over the island: This large scale map prepared evidently for administrative purposes . . . shows an isolated island ‘Palmas of Melangis’ which, though not quite correct in size and shape and though about 40’ too much to the south and 20’ too much to the east, cannot but correspond to Palmas (or Miangas), since the most reliable detailed modern maps, in particular the British Admiralty Chart, show no other island but Palmas (or Miangas) between the Talauer or Nanusa Islands and Mindanao. This comparatively correct location of the island is supported by earlier maps.114

On the other hand, Parfitt’s Marxian analysis emphasises two interrelated aspects of Huber’s award: first, the erasure of any question about the legal rights and duties of the island’s inhabitants and, correspondingly, the emergence of a particular idea of sovereignty as protection of possessive individualism. This approach brings together the conceptual impossibility of the inhabitants’ sovereignty within Huber’s intellectual universe,115 and a very specific understanding of effective power as the basis of sovereignty. For Parfitt, this effectiveness is not just neutral, factual power, but rather the core of the state’s operation as a guarantor of individual rights, the conditions of foreign trade and capitalism: Huber’s definition demonstrates that what ‘effectiveness’, or exercising ‘the functions of a state’, actually involves in international law is a willingness and capacity to protect the existing rights of those entities (international and individual legal subjects) which already have rights under international law.116

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Ibid. Island of Palmas, 853 (emphasis added). ‘The Island’s natives, being no more citizens than their polity was a state, therefore possessed neither individual nor collective legal subjectivity of their own accord. There was therefore no question, for Huber, that the US or the Netherlands should be required to attend to the rights of the natives in making their claim, for the natives had no rights.’ Rose S. Parfitt, The Process of International Legal Reproduction: Inequality, Historiography, Resistance (Cambridge: Cambridge University Press 2019) pp. 89–90. Ibid.

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Within this line of argument, the Island of Palmas emerges as part of a longer genealogy of statehood and sovereignty in international law as guarantors of possessive individualism and the capitalist mode of production. This genealogy also includes, amongst other things, the 1885 Berlin Act, which also required that states exercised effective control over their colonies in Africa,117 but which is not frequently invoked by contemporary international lawyers, probably not because its precedent is objectively less relevant, but because it is markedly more difficult for it to be rhetorically detached from its colonial past in the way the Island of Palmas award has been. It is by bringing together these two readings that we can better grasp the arbitral award and its relevance for the ‘unwilling or unable’ doctrine. What I am arguing here is that Huber’s reasoning is profoundly contradictory and that both readings capture an important aspect of it. On the one hand, the sovereign is conceptualised as an omnipotent power that guarantees specific rights and interests protected by international law that are directly related to the capitalist mode of production. Taxation in money that forced the inhabitants of the island of Palmas to marketise their produce is one such example of the entanglement between the modern state and capitalism and of the incorporation of this entanglement in international law. On the other, the concrete manifestations of power that ground this sovereignty fall decisively short of this grand vision. Rather, they constitute culturally specific symbols of political power, which at the time were associated with the Western nation-state and the construction of white supremacy. Creating (inaccurate) maps or carrying flags and coats of arms are indeed unable to prove the effective exercise of state power. They were, however, some of the most popular ways in which people who had come to understand themselves as white performed and manifested their domination over racialised peoples and their lands.

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Article 35 of the Berlin Act read as follows: ‘The Signatory Powers of the present Act recognize the obligation to ensure the establishment of authority in the regions occupied by them on the coasts of the African continent sufficient to protect existing rights, and, as the case may be, freedom of trade and of transit under the conditions agreed upon.’ On the relationship between ‘effective occupation’ and the development of capitalist relations of production and exchange in West Africa, see: Parfitt, The Process of International Legal Reproduction, pp. 119–21; Matthew Craven, ‘Between Law and History: The Berlin Conference of 1884–1885 and the Logic of Free Trade’ (2015) 3 London Review of International Law 31–59.

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Philip Jessup inadvertently brought to the surface this ‘logic of biology’ while criticising Huber’s reasoning and his perceived bias against the United States. Objecting to Huber’s requirement of effective control, Jessup noted that: It was noted that down well into the nineteenth century one could have traversed vast areas of American and Canadian wilderness, seeing no white man and constantly being in danger of unsubjected savages. It was recalled that in 1870 the Australian interior was practically unknown though the English had ‘occupied’ that continent for over a century. New Zealand, similarly, had in 1843 a European population of only 13,000 collected in a few centers, though the area was over 100,000 square miles.118

Jessup’s objection was, however, not as effective as he might have imagined. Huber was willing to concede that even frail manifestations of power sufficed when performed against ‘natives’ who were considered not to exercise any legally valid form of authority over their lands anyway. It was only in regard to other ‘white men’ that Huber’s criteria were operative in the first place, and no other white imperial powers were competing for sovereignty over the settler colonies Jessup discussed. Thanks to Jessup’s objections the racialised aspects of political power at the heart of the Island of Palmas award are laid bare. That said, whiteness was a necessary, yet not sufficient, precondition for the grounding of sovereignty. Rather, performing, even in theory, the role of the guarantor of capitalist relations of production was also required for political power to be granted protection by international law. In other words, we can read the Island of Palmas award as a re-enactment of the ‘standard of civilisation’: a contradictory, yet specific and identifiable, pattern of argumentation about the distribution of rights and duties in international law. On the one hand, ‘the logic of improvement’ links legally protected political power with the ability and willingness to guarantee the establishment and reproduction of the capitalist mode of production. On the other, imaginaries of savagery, brutality, incompetence or passivity that are commonly expressed in the language of race, gender, or childhood mean that some people are deemed permanently or temporarily incapable of this form of legally protected political power. Overall, the image of sovereignty emerging from the Island of Palmas award is closely related to the public exhibition of symbols of Western nobility and/or

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Philip C. Jessup, ‘The Palmas Island Arbitration’ (1928) 22 American Journal of International Law 735–52, 742.

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nationalism. At the same time, it is anchored to the idea(l) of the state as the guarantor of the capitalist relations of production, not least through the exploitation of Indigenous peoples and their incorporation within the sphere of commodity circulation, monetisation and taxation. This is of interest not just for historiographical purposes. The ‘unwilling or unable’ doctrine, I argue, also enacts ‘civilisation’ as a specific argumentative pattern that oscillates between the ‘logic of improvement’ and the ‘logic of biology’. In this specific instance, as we already discussed above, the ‘logic of improvement’ is tied to the adoption of neoliberalism as a particular form of capitalist accumulation and even more specifically to the political economy of the war on terror that enables the unscrutinised transfer of public funds to specific factions of capital, especially those linked to national security and the military. Therefore, states can show that they are ‘willing and able’ and therefore not subject to lawful international violence if they actively subscribe to the policies, political economy and aesthetics of the global war on terror. Assessments of unwillingness or inability rely heavily on a general designation of whoever does not subscribe to these policies as either malicious or irrational and on general perceptions of certain lands and peoples as ungoverned, unruly and lawless. Invocations of ‘common knowledge’ instead of specific assessment of particular armed attacks and the host state’s relation to them mean that only particular states can find themselves at the receiving end of the violence authorised by the ‘unwilling or unable’ doctrine. Even though contemporary international lawyers have generally avoided explicit invocations of racial or gendered hierarchies, the ‘logic of biology’ is central to the proposed assessments of willingness and ability. To better understand its role it is essential to understand that, much like their nineteenth-century predecessors, advocates of the doctrine rely heavily on a rhetoric about facts and the realities of the modern world in order to give credibility to their arguments about expansive interpretations of the right to self-defence. While articulating his widely publicised and contested principles on self-defence, Daniel Bethlehem criticised what he perceived to be the prevailing, restrictive position as having little relation to ‘operational realities’ and as insensitive towards ‘the practical realities of the circumstances that it addresses’.119 Writing in a similar vein, Keinan insisted that ‘differences in facts should translate to differences in law’,120 and Trapp criticised what she perceives to be the 119 120

Bethlehem, ‘Principles Relevant’, 2. Keinan, ‘Humanising the Right of Self-Defence’, 59.

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nineteenth-century version of sovereignty as unable to deal with the gap between formal authority and its factual, real-life operation existence: ‘Authority’ in this sense was actualisable at the state’s discretion – rather than a factual account of the control or ‘authority’ a state actually exercised over its territory. Given that sovereignty was framed in terms of exclusive rights coupled with broad discretion, it acted as a cloak, obscuring from international scrutiny whether (and how) authority was exercised within its folds.121

If, however, the ‘unwilling or unable’ doctrine rests on the idea that it is facts rather than abstract, formal concepts such as sovereignty that matter, then it becomes necessary to identify the disciplines, protocols, routines and theories of knowledge that will enable this renewed doctrine to identify the relevant facts. Unlike our predecessors in Chapter 1,122 contemporary international lawyers do not have access to widely accepted theories of biological racism from which to draw these facts. This is where the ‘unwilling or unable’ doctrine meets another controversial concept of international law, that of the ‘failed state’. In theory, the right of selfdefence and the unwilling or unable doctrine are not anchored to the character and nature of a state as such, but rather on what a state does (launch an armed attack) or does not do (prevent such an attack from being launched from within its territory). In this way, the doctrine is structured as objective and neutral, far removed from the hierarchical logic of nineteenth-century international law and its ‘civilisational’ standards. However, in her attempt to specify the parameters of the use of force under the doctrine, Deeks slips into a different line of argumentation. The thrust of her argument is that ‘unwilling or unable’ has been invoked by states for centuries and the purpose of her intervention is to advocate for procedural safeguards. Therefore, Deeks argues that the ‘victim state’ ought to assess the unwillingness and inability of the ‘territorial state’ before resorting to violence. This is seen as the procedural obligation of a legal creature Deeks describes as the ‘reasonable victim state’, which: in this context at least would evaluate in good faith and with an objective eye the territorial state’s proposal, keeping in mind both those actions that it has determined are necessary to suppress the threat and the practical limitations that any state likely would face in addressing that particular threat.123

121 122 123

Trapp, ‘Actor-Pluralism’, 207. Chapter 4. Deeks, ‘“Unwilling or Unable”’, 530.

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Deeks further invokes Michael Schmitt’s definition of ‘reasonable states’ as ones that ‘do not act precipitously, nor do they remain idle as indications that an attack is forthcoming become deafening.’124 Similarly, Trapp argues that a state that would not respond by using force in the case of an armed attack would be a passive one and that it would be unreasonable to expect such passivity.125 The ‘victim state’ is thoroughly personified and gendered, as is often the case in the context of selfdefence more generally. The ‘inherent right’ to self-defence is seen as analogous to self-defence by individuals in domestic legal systems. Thus, relevant debates are often informed by domestic, and especially common law, theories of self-defence, which are based on a ‘brawl in the bar’ model, which in turn imagines both the attacker and the self-defending individual as essentially masculine.126 In the context of the ‘unwilling or unable’ doctrine this logic is taken a step further: the ideal ‘victim state’ is active yet self-restrained, protective of life but also always prepared for violence. This configuration corresponds to a particular understanding of the state in the era of neoliberalism and of the war on terror. The state is understood to be both constantly vulnerable to attack and ready as well as capable to respond to these attacks forcefully; both totally subject to the logic and the imperatives of the market and in a position to create markets by fiat. Wendy Brown has analogised between this ‘postmodern state’ with what she calls a ‘central paradox of postmodern masculinity’, since for both, ‘power and privilege operate increasingly through a disavowal of potency, repudiation of responsibility, diffusion of sites and operations of control.’127

124

125

126

127

Michael Schmitt, ‘Responding to Transnational Terrorism under the Jus Ad Bellum: A Normative Framework’ in Michael Schmitt and Jelena Pejic (eds.), International Law and Armed Conflict: Exploring the Faultlines (Leiden/Boston: Brill 2007) 157–95, p. 194. ‘The suggestion that the UN Charter requires a state (as a matter of legal obligation) to sit idly by while persons subject to its jurisdiction are attacked from across a border by NSAs [non-state actors] is wildly unrealistic – the UN Charter is not a suicide pact, and requiring such passivity is hardly consistent with the reading of the UN Charter as protecting the “sovereignty of peoples”.’ Trapp, ‘Actor-Pluralism’, 202. ‘[T]he unqualified acceptance of an armed attack, as the primary trigger to initiate a state’s right to act under Article 51, replicates the public, one-off and aggressive nature of attacks envisaged in interpersonal relations. This projects a similar version of masculinedefined violence onto international law. As a result, international law construes the state in analogy with the masculine subject of interpersonal self-defence laws.’ Gina Heathcote, The Law on the Use of Force: A Feminist Analysis (London/New York: Routledge 2012) p. 79. Wendy Brown, ‘Finding the Man in the State’ (1992) 18 Feminist Studies 7–34, 29.

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The implications of this gendered personification of the ‘victim state’ become clearer if we also reflect on the other body of law that regulates war, jus in bello. For example, Frédéric Mégret has argued that the laws of war elevate into ideal a particular form of white masculinity, which is demarcated from both hyper-masculinity and femininity.128 On the one hand, the ideal warrior is active and potent, a protector of women, children and higher ideals. On the other, the warrior is restrained in his violence, magnanimous and chivalrous, unlike ‘savages' who get carried away and are unable to moderate and rationalise their violent outbreaks: ‘In that respect, the cardinal sin of the savage was that, as Jefferson put it, his “known rule of warfare is an undistinguished destruction of all ages, sexes and conditions” and that, in failing to uphold these cardinal distinctions, he quite literally rendered himself incapable of sustaining his own masculinity.’129 Implicit yet central in this personification of the ‘victim state’ in the context of ‘unwilling or unable’ is the idea that ‘unreasonable’ ‘victim states’ cannot invoke lawfully the doctrine. In this respect, it is no surprise that even though the United States has been a staunch proponent of the ‘unwilling or unable’ doctrine, it has also consistently objected to Russia’s invocations of it.130 Therefore, an assessment of ‘reasonableness’ with all its racialised and gendered connotations delimits the legitimate invocations of the doctrine. Writing in a slightly different context, Knox has argued that in the recent decades the United States has attempted to construe justifications for the use of force that are exclusively available to it and not to its imperial rivals.131 The case of the ‘unwilling or unable’ doctrine as articulated by Deeks and others fits neatly within this category. In other words, the power inequalities in the 128

129 130

131

‘[T]he laws of war embody a form of hegemonic masculinity identified with manly restraint: restraint, therefore, far from being anathema to the constitution of virility, is historically and conceptually central to it as a precarious but potent middle way between hyper-masculinity and femininity.’ Frédéric Mégret, ‘The Laws of War and the Structure of Masculine Power’ (2018) 19 Melbourne Journal of International Law 200–26, 204 (emphasis as in the original). Ibid., 216. Deeks attempts to rationalise this objection as follows: ‘While the United States has used the “unwilling or unable” test itself, it publicly criticized Russia’s bombings in Georgia, presumably because it disagreed with the way in which Russia had applied the test.’ Deeks, ‘“Unwilling or Unable”’, 486. See: Robert Knox, ‘Race, Racialisation and Rivalry in the International Legal Order’ in Alexander Anievas et al. (eds.), Race and Racism in International Relations: Confronting the Global Colour Line (Abingdon/New York: Routledge 2014) 175–92, pp. 182–3.

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invocations of the doctrine are not simply ‘real world’ distortions of an otherwise equitable argument that is purportedly available to all states. Rather, the ‘logic of biology’ reserves the label of the ‘victim state’ for those who can persuasively position themselves as being reasonable, potent and restrained, or in other words for those who can claim for themselves the qualities of white men.132 A crucial clarification is required here: in a world characterised by imperial rivalries and a disciplinary landscape that relies on personifications and imaginaries instead of explicitly racial hierarchies these efforts in demarcating the legitimate invocations of the doctrine are not and can never be entirely successful. The decentralised character of the international legal order coupled with nominal state equality and multi-layered levels of imperialism on local and global level means that the ‘unwilling or unable’ doctrine is open to be appropriated by states and lawyers outside the narrow circles of its most vocal advocates.133 This, in turn, has two inter-related implications. First, the patterns of racialisation and subjugation enacted and reproduced through international law in general and through invocations of the ‘unwilling or unable’ doctrine in particular are unstable and historically contingent and they do not necessarily correspond to the hierarchies of the nineteenth or the twentieth century. This means that states which have not historically been coded as white can potentially occupy the position of reasonable ‘victim states’. The example of Turkey, which has repeatedly invoked the doctrine in its effort to suppress Kurdish separatism is instructive here. This malleability does not negate the operation of the ‘logic of biology’ as such. Rather, it reveals race or gender to be not an inherent quality, but rather a relationship, as well as the historically contingent product of racism or sexism. Correspondingly, these changing significations and positions of different political communities within

132

133

‘The drive to create “Others” is not able to explain the particular legal forms that racialisation takes. It is more conjunctural issues that condition this form, with interimperialist rivalry being a key aspect . . . The issue is not simply who is intervening and who is being intervened in, but also, who is permitted to intervene and who is not.’ Ibid., p. 183. Brunnée and Toope meticulously trace and interrogate the citation practices of the doctrine’s most prominent advocates, arguing that ‘there is a curious interplay amongst State officials, former officials writing in their personal capacity and some academic commentators, whereby a small group tries to expand its influence by constantly crossreferencing each other.’ Brunnée and Toope, ‘Self-Defence against Non-State Actors’, 275.

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international legal discourse indicate that we ought to understand these processes of feminisation or racialisation as the complex articulations of material relations of oppression and exploitation. In other words, it is only through an analysis of the concrete material conditions of the war on terror that we can appreciate the relations articulated through the ‘unwilling or unable’ doctrine. Jurisprudentially, this means that the invocation of the doctrine by actors other than the United States and its allies does not negate that it enacts the ‘logic of biology’ – the permanent situating of certain states into a superior legal position given their purportedly immutable and superior innate characteristics. The relative openness and availability of the argument are distinct to its structure, which remains necessarily tied to the idea that only certain ‘victim states’ possess the combination of potency and vulnerability, proactiveness and self-restraint that entitles them to invoke the doctrine lawfully. Unsurprisingly, the ‘logic of biology’ operates within the ‘unwilling or unable’ doctrine both as a way of determining who is a deserving ‘victim state’ and who is not and as a means of determining which states are unwilling and/or unable and therefore subject to force. The co-existence of the ‘unwilling or unable’ doctrine with theories about pre-emptive selfdefence and management of risk means that the test revolves around an evaluation of a state’s sovereign control over its territory in general rather than a case-by-case assessment of its inability or unwillingness. Faced with the question of how to evaluate such qualities, Deeks resorts to indexes about state failure, as well as to states’ reputations: ‘[a] state that is well-known to lack control over a relevant part of its territory is quite unlikely to be “able” to suppress threats emanating from that area.’134 Therefore, policy-makers’ rankings as well as ‘common knowledge’ are elevated to primary sources of knowledge about a state’s ability to stop armed attacks, and, therefore, about the extent of its rights and duties under international law. This choice reflects the contemporary faith in measuring, ranking and visualising things and even abstract notions as an objective way of understanding the world. A closer look at these indexes of state fragility reveals the profound difficulties in measuring concepts like legitimacy and aggregating between very different state characteristics in order to produce a single number. Often, what is measured is not the actual performance of a state (whatever that might

134

Deeks, ‘“Unwilling or Unable”’, 525 (emphasis added).

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be anyway), but public perceptions of such performance. Those who compile the measurements equate legitimacy with adherence to the norms of liberal democracy, and conflate causes and effects.135 Gutierrez Sanin has caustically summarised the methodology of such indexes as follows: ‘This is a bit like defining cancer as a consisting of smoking, uncontrolled growth of cells, and family crisis.’136 Similarly, Jones argues that these indexes represent a very specific aesthetics of knowledge that only becomes comprehensible under the hegemony of positivism and financialized capitalism,137 but they do not conform with the standard procedures of counting and aggregating and therefore constitute a ‘pseudo-science’. The inadequacies of such state fragility indexes do not mean that their invocation by Deeks can simply be dismissed as professional incompetence. Rather, her invocation of ‘well-known’ fragile states echoes closely with John Yoo’s logically tenuous but normatively productive assertion that even though we do not exactly know how to identify ‘failed states’ we still know that they have a detrimental impact on the international legal order.138 Yoo went on to argue that decolonisation in much of the Global South was premature. As a consequence, sovereign statehood was given to people who (in his eyes) were not capable of governing themselves effectively because they had never done so before.139 He, therefore, argued that contemporary international law should take note of this reality and relax the prohibition on the use of force or the ‘conservationist principle’ of the laws of occupation to allow for the effective governing and regeneration of these ungoverned and ungovernable spaces.140 As we saw in the previous section of this chapter, this was an argument of crucial importance in the occupation and 135

136

137

138 139

140

For a comprehensive critique, see: Nehal Bhuta, ‘Governmentalizing Sovereignty: Indexes of State Fragility and the Calculability of Political Order’ in Kevin E. Davis et al. (eds.), Governance by Indicators: Global Power through Classification and Rankings (Oxford: Oxford University Press 2012) 132–62. Francisco Gutierrez Sanin, ‘Evaluating State Performance: A Critical View of State Failure and Fragility Indexes’ (2011) 23 European Journal of Development Research 20–42, 24. Branwen Gruffydd Jones, ‘“Good Governance” and “State Failure”’ in Anievas et al., Race and Racism in International Relations, pp. 74–5. John Yoo, ‘Fixing Failed States’ (2011) 99 California Law Review 95–150, 104. ‘Rapid decolonization during the 1950s and 1960s, and again in the 1990s in the wake of the collapse of the Soviet Union, produced a large number of new states that had little history or experience with self-governance.’ Ibid., 98. Ibid., 138.

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comprehensive neoliberal reform of Iraq. Deeks’ invocation of the ‘failed states’ indexes attempts to give her argument credibility, which is today often derived from metrics, numbers and rankings. These invocations offer a way of grounding the authority of international laws in a way that appears to be neutral and self-evident. Instead, they need to be understood precisely as part of a broader effort of re-authorising both the laws of occupation and the laws of self-defence and rendering explicit hierarchy a core feature of the international legal order. Theresa Reinold has also explicitly linked decolonisation, state ‘weakness’ and the right to use extraterritorial defensive force against terrorism. For Reinold, ‘decolonization and self-determination . . . led to a practice of conferring sovereignty by administrative fiat’,141 even though many of these sovereigns are (inherently) incapable of delivering ‘public goods’, which in this context are understood to encompass exclusively the security interests of hegemonic states.142 Therefore, extensive self-defence rights must be allowed against these ‘unwilling or unable’ states.143 In this context, the ‘unwilling or unable’ doctrine can be better understood as a way of (re) enacting a system of graded international legal personality, a contemporary manifestation of the ‘logic of biology’. Crucially, Deeks’ argumentation enacts this ‘logic of biology’ not only in regard to the substantive content of the rule she puts forward, but also regarding the method she uses to argue for her case. Here, I do not simply refer to the fact that Deeks, as well as other advocates of the doctrine, gives disproportionate weight to the practice and legal opinion of a handful of Western states, and notably of the United States.144 More tellingly, Deeks declined to take into account states’ pronouncements during the deliberations of the UN Security Council. Her justification was that they do not constitute legal but political statements and that, in any event, the relevant opinions were strongly coloured by the politics of (anti)colonialism, apartheid and the occupation of Palestine.145 To

141

142

143 144

145

Theresa Reinold, ‘State Weakness, Irregular Warfare, and the Right to Self-Defence Post9/11’ (2011) 105 American Journal of International Law 244–86, 249. ‘One of the hallmarks of sovereign statehood is the state’s ability to provide crucial public goods such as effective territorial control.’ Ibid., 284. Ibid., 284–5. For a persuasive deconstruction of the argument that the ‘victim states’ are the only specially affected states and therefore their practice and opinio juris should be given special consideration, see: Kevin Jon Heller, ‘Specially-Affected States and the Formation of Custom’ (2018) 112 American Journal of International Law 191–243. Deeks, ‘“Unwilling or Unable”’, 517.

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support this position she further cites Bowett, who dismissed widespread condemnations of Portugal’s colonial warfare practices as due to ‘a good deal of the anti-colonialist sentiment’.146 At the same time, Deeks’ overall argumentation relies heavily on the precedential value of colonial warfare and imperial adventures overseas, including at least three instances of colonial warfare against American Indians, France’s conduct in the Algerian War of Independence, Portugal’s desperate efforts to maintain its African colonies in the late 1960s, and apartheid South Africa’s invasion of Angola in pursuit of the African National Congress.147 What interests me here is not whether Deeks’ examples in fact support the ‘unwilling or unable’ doctrine, even though serious objections have been raised in that respect.148 Rather, I am interested in the fact that one of the most influential defenders of the doctrine views colonial and imperial warfare as proper sources of international law, while confining decolonisation and anti-racist struggles to the realm of politics or even worse, sentiment. Violent incidents that were intended to establish and reproduce hierarchy based on supposedly immutable differences, or in other words, use of force in support of the ‘logic of biology’, are given disproportionate weight, while challenges to this logic during decolonisation are treated as inherently incapable of producing law. In this way, the ‘logic of biology’ permeates not only the substantive content of the rules, but also the process of rule-formation in the first place. However, the ‘logic of biology’ does not fully capture the argumentative structure of the ‘unwilling or unable’ doctrine. Rather, the ‘logic of improvement’ is also central to the doctrine. When adopting this line of argument, commentators associate militarisation, subscription to the global war on terror, and close co-operation with and acquiescence to imperial powers as ways for states to avoid the stain of unwillingness or inability. In this context, increased militarisation and intense policing, or perhaps more accurately the merging of the two, is put forward as the preferred solution for peoples and territories that are

146 147 148

Ibid. For a comprehensive list of Deeks’ examples, see: Ibid., 549–50. For example, Gurmendi has argued that at least two of the incidents invoked by Deeks do not fit the factual basis for the ‘unwilling or unable’ doctrine: Alonso Gurmendi, ‘Leticia & Pancho: The Alleged Historic Precedents for Unwilling or Unable in Latin America, Explored (Part I, Leticia)’ (Opinio Juris, 7 November 2019) available at: http:// opiniojuris.org/2018/11/07/leticia-pancho-the-alleged-historic-precedents-for-unwill ing-or-unable-in-latin-america-explored-part-i-leticia/.

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imagined to be ungoverned or lawless. For example, Deeks consistently treats states transferring army troops or police to specific areas as an indication against them being ‘unwilling or unable’.149 Trapp takes this logic one step further by directly linking the responsibility to protect, which she sees as the normative and legal basis of ‘unwilling or unable’, with institution- and capacity-building in the context of the war on terror: An account of sovereignty that requires an evaluation of state capacity should, of course, account for the variable resources of states. While it is not true that some states are more sovereign than others, it is certainly true that some states are better able to meet the responsibilities of sovereignty than others. Owada therefore quite rightly argues that conceptualising sovereignty in terms of responsibility ‘places the emphasis on capacity building . . . and collaboration’.150

Within this line of argument, the willing and capable state is the one that enthusiastically signs up to the policies of the war on terror and not only tries to implement the relevant treaties or UN Security Council resolutions but also seeks bilateral support to do so.151 In the words of Sara Kendall: ‘As an articulation of contingent sovereignty, the “unwilling or unable” theory divides the international order into states that can adequately handle threats of force and those who cannot, either due to a lack of will or capacity.’152 This brings me back to my initial claim that ‘unwilling or unable’ can be better understood as a method for remaking the state in accordance with the imperatives, political economy and aesthetics of a never-ending war on terror. Aalberts and Werner have argued that it is precisely in this context that we are witnessing a transformation of state responsibility from a retroactive body of laws that only applies when a violation of a primary rule is alleged to a proactive, precautionary attitude that is always expected from sovereigns even if the traditional rules of attribu-

149 150 151

152

Deeks, ‘“Unwilling or Unable”’, 540. Trapp, ‘Actor-Pluralism’, 211. ‘States with limited human and financial resources and trouble maintaining control over parts of their territory (whether because of its distance from central government or its inhospitable terrain) will still have difficulty in putting institutional capacity to effective use in preventing NSAs [non-state actors] from using their territories as a base of activities.’ Ibid., 212. Sara Kendall, ‘Cartographies of the Present: “Contingent Sovereignty” and Territorial Integrity’ (2016) 47 Netherlands Yearbook of International Law 83–105, 100.

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tion do not apply.153 When this logic prevails, states are constantly disciplined through ‘self-government, rating, and rankings of performances, surveillance and control within a system of formal equality and autonomy’.154 Crucially though, in the context of the ‘unwilling or unable’ doctrine this self-government and discipline are not the negation of more traditional, statist, and violent mechanisms of coercion or punishment. Contrary to Aalberts and Werner’s contention,155 selfmanagement and external violence are joined at the hip, as nonperformance of these self-disciplining functions comes at the price of being subjected to use of force. Indeed, Reinold has described the use of defensive force against ‘unwilling or unable’ states as holding them ‘militarily accountable for failing to discharge their sovereign obligation to control’.156 Such is the pull of this violence-backed ‘logic of improvement’ that even some of the doctrine’s critics end up adopting it, albeit with some significant modifications in terms of who it is that authoritatively decides whether a state adequately conforms with the juridical demands of the war on terror. Take, for example, Ahmed, whose work convincingly highlights the consistent pattern of power imbalances between ‘victim’ and ‘territorial’ states and cautions against an uncritical adoption of the doctrine from the perspective of ‘weak’ states.157 Ahmed problematises the information asymmetry between powerful ‘victim states’ and the rest, including both the territorial state and other states, which in the absence such information are unable to assess the lawfulness of the defensive force. He suggests that the UN Counter-Terrorism Committee (CTC) should assume a central role in the assessment of unwillingness and inability. Since 2001 and the adoption of counter-terrorism related UN Security Council Resolutions 1373 and 1674, Ahmed’s argument goes, the CTC has been receiving annual reports that document states’ counter-terrorism capacity in great detail.158 This information can be

153

154 155 156 157 158

‘Crucially, this entails a shift from State responsibility in terms of ex post facto attribution and reparation for wrongful behaviour, towards responsible behaving of individual subjects by taking precautions against possible future threats within world risk society.’ Tanja A. Aalberts and Wouter G. Werner, ‘Mobilising Uncertainty and the Making of Responsible Sovereigns’ (2011) 37 Review of International Studies 2183–200, 2198. Ibid., 2197. Ibid. Reinold, ‘State Weakness, Irregular Warfare’, 285. Ahmed, ‘Defending Weak States’. Ibid., 26.

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used to determine whether a state is indeed unwilling or unable to stop armed attacks emanating from its territory. If a particular state willingly subscribes to the ‘logic of improvement’ putting effort into complying with its counter-terrorism obligations, then its designation as ‘unwilling or unable’ for the purposes of the doctrine becomes unlikely: A state can truly be considered to be ineffective only if it persistently has poor compliance levels – for example, one or two bad years would not mean that the state is ineffective but it would highlight to victim states and the international community that the state may need assistance to prevent it from becoming permanently ineffective at suppressing nonstate actors that carry out unlawful activities. Similarly, where a state is showing demonstrable signs of improvement, the victim state will need to justify its claim of ineffectiveness to a higher degree if it wishes to use force within such a state.159

The structure of this proposal echoes the legal struggles over extraterritoriality, as mapped in Chapter 1. Semi-peripheral lawyers incorporated the ‘logic of improvement’ while challenging Western lawyers’ self-proclaimed right to determine other political communities’ civilised status.160 Nowadays, proposals to centre the Security Council in the determination of unwillingness or inability challenge the demand of certain states to designate themselves unilaterally as deserving ‘victim states’ and others as either undeserving ‘victims’ or as being ‘unwilling or unable’. However, such proposals also fundamentally accept and further solidify the ‘logic of improvement’ and inexorably link the question of the use of force with a state’s conformity with the imperatives of global counter-terrorism. In other words, when the debate about the ‘unwilling or unable’ doctrine is articulated in terms of ‘who decides’ the exceptionalism at the heart of the doctrine is being challenged, but its privileging of a very particular form of the state, one that conforms with the imperatives, aesthetics and political economy of the global war on terror is being reaffirmed. ‘Civilisation’ as a particular argumentative pattern that oscillates between two logics, biology and improvement, is therefore far from being a relic of international law’s imperial past, or the unique prerogative of some cynical international lawyers. It is rather a persistent pattern of argumentation, one that incorporates the material contradictions of imperialism without being able to resolve them in a decisive way.

159 160

Ibid. Chapter 3.

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5.3 Conclusion This chapter sought to analyse the ways two major aspects of the war on terror, the occupation of Iraq between 2003 and 2004 and the extraterritorial use of force on the grounds of self-defence, have been justified in argument.161 In doing so, I argued that both the debate about the reconstruction of occupied Iraq and the ‘unwilling or unable’ doctrine share a particular argumentative structure, one that I have identified with the ‘standard of civilisation’. This argumentative structure oscillates between two seemingly opposing yet interconnected poles. On the one hand, the distribution of equal rights and duties under international law is deemed possible and conditional upon a set of identifiable procapitalist reforms. On the other, this ‘logic of improvement’ coexists with a ‘logic of biology’, which constantly negates or postpones this possibility of equal participation in perpetuity invoking or alluding to some supposedly immutable differences. Approaching ‘civilisation’ as an argumentative structure, and not, for example, as a legal term to be interpreted enables us to move beyond explicit invocations of the term, which had become rather rare before 9/11. Instead, approaching the international legal profession as being about the construction of arguments, rather than the definition of terms, elucidates the fact that in the late nineteenth century ‘civilisation’ was the encapsulation of the particular mode of legal argumentation I summarised above. Once we start thinking in this register it becomes clear that the war on terror became the material and intellectual matrix not only for the explicit return of the term, at least in the political, if not the legal discourse, but also for the proliferation of this specific argumentative pattern. By revisiting both the intersection of the laws of occupation and Resolution 1483 and the debate about the potential limits to the use of defensive force, I aim to show that ‘civilisation’ still structures international legal arguments and is not confined to one particular legal field or only used by a narrow group of lawyers. This does not mean that ‘civilisation’ is necessarily as hegemonic or as widespread as it was at the turn of the twentieth century or during the interwar period. However, the persistence of this type of legal argument should give us pause when lamenting the purported collapse, or at least the ongoing crisis, of the liberal international legal order. For if 161

Here I am, of course, using Koskenniemi’s famous delimitation of his object of inquiry as ‘not an account of how legal decisions are made’ but about ‘how they are justified in argument’. Koskenniemi, From Apology to Utopia, p. 589 (emphasis as in the original).

. 



the two logics that constitute the two poles of the ‘standard of civilisation’ are oppositional in their premise and their functions, they also tend to co-exist and even collapse into each other. If this is true, then the (neo) liberal international legal order appears to be less the polar opposite of and the safeguard against emerging authoritarianism and (explicit and unapologetic) racism and sexism, but rather to be intrinsically interlinked with them. The implications of this interconnectedness are multiple and will be discussed in the concluding chapter of this book.

6 Thinking through Contradictions on a Warming Planet

The social revolution [of the nineteenth century] cannot take its poetry from the past but only from the future. Karl Marx (1852)1

The goal of this book was not so much to show that the ‘standard of civilisation’ is incoherent, unstable or incapable of justifying concrete legal outcomes, but rather to show that it is profoundly oppressive, even though incoherently so. In other words, this is a book written within the tradition of critical international law and that takes seriously the argument that law is not a sum of rules but rather a particular type of specialized language that is essentially indeterminate. In fact, the ‘standard of civilisation’ constitutes an argumentative pattern that is fundamentally dualistic in its construction. On the one hand, according to the ‘logic of improvement’, the equal distribution of rights, duties, privileges and so on is made dependent on the adoption of the imperatives of capitalist modernity. On the other, this promise is constantly deferred, as the ‘logic of biology’ puts in motion the often unarticulated assumption of inherently unsurpassable differences between Western states and the rest of the world. At the same time, these contradictory ways of organising the distribution of rights and duties begin to look increasingly unstable once put under scrutiny. What initially appears to be the imperatives of capitalism and modernity turn out to be the culturally and historically specific characteristics that the modern capitalist state assumed in the West. Often, generally inconsequential aspects of these political forms are elevated into the paragons of ‘civilised’ life. Simultaneously, what appears to be racial or cultural prejudice is revealed to be the historically concrete ideological forms that justified the unevenness of capitalist development and international lawyers turn out to be quite 1

Karl Marx, The Eighteenth Brumaire of Louis Bonaparte (first published 1852, Moscow: Progress Publishers 1972) pp. 12–13.

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  



sympathetic towards cultural ‘Otherness’ provided that it is mobilised in the service of the global accumulation of capital. ‘Civilisation’ is not simply internally bifurcated, but this bifurcation is discursively unstable. As Chapter 4 concerning the South West Africa saga demonstrated, this instability has led unapologetic racists to argue that equal statehood is theoretically possible based on the possibility (however remote) of civilisational transformation, and committed anti-racists to rely on the most paternalistic, hierarchical aspects of ‘civilisation’ in order to argue against apartheid and imperial aggression. If this instability has been fatal for revolutionary projects, it has also provided valuable tools for reformist ones, especially those advanced by local legal elites and ruling classes. As I argued in Chapter 2, semiperipheral states, such as China, the Ottoman Empire or Japan, utilised the ambiguities of ‘civilisation’ both externally – in order to better their position in the imperialist chain – and internally – in order to promote the transition to capitalism as the necessary precondition of national independence and to discursively and materially marginalise those who resisted these processes. ‘Civilisation’ turned out to be a surprisingly adaptive discursive tool. Frequently impressed by their own sense of superiority, Western international lawyers underestimated the growing competence of their non-Western colleagues, who were pushed by national necessity and class ambition into becoming competent users of the language of international law. Importantly, in doing so, peripheral and semi-peripheral international lawyers also brought about the transformation of the ‘standard of civilisation’. They did so by stressing in the international realm the ‘logic of improvement’ and, therefore, opening a space for the admission of their political communities into the ‘family of civilised nations’. Relatedly, as I argued in Chapter 3, the revolutionary activities of colonised peoples and the rise of nationalist elites outside the West paved the way for the institutionalisation of the ‘civilising mission’ through the establishment of Mandates System of the League of Nations. It was thanks to this historical twist that ‘civilisation’ became bureaucratised and linked to new techniques of government, population management, and welfare. Therefore, if this pattern of oscillation between ‘improvement’ and ‘biology’ appears to be somewhat rigid, one need always remember that the model of the capitalist state put forward by the ‘logic of improvement’ has never been a static one. Rather, evolutions such as the rise and the fall of the welfare state, as well as the emergence of militarised neoliberalism, as exemplified by the war on terror, constantly reshape the ‘ideal’ non-Western political communities are meant

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  

to strive towards. As the capitalist state evolves, so do the requirements of the ‘logic of improvement’. Overall, the indeterminacies of ‘civilisation’ have not been the outcome of substandard lawyering, or cynicism, but rather a feature of its operation within the broader structures of international law. At the same time, it is precisely this indeterminacy that has enabled the mobilisation of the standard by a wide (yet not unlimited) range of political actors who have been articulating their domestic and international agendas in its terms. My analysis, however, does not conclude with showing the duality and indeterminacy of ‘civilisation’ in international law, but rather attempts to comprehend it from a Marxian perspective and thereby, contribute to both critical and mainstream accounts of international law and history. In regards to the former intellectual tradition, my principal aim was to show that the turn to nuance, contingency and multiplicity in international legal theory and history has produced valuable insights and challenged long-held orthodoxies, but has generally been limited by its suspicion, if not outright hostility, of the pursuit of explanation, considering it to be both impossible and, often, politically suspect. Describing contemporary legal historicism, Christopher Tomlins has noted that: ‘It is a style whose fetishization of contextual contingency and complexity substitutes Geertzian thick description for both structural and causal explanation, or as Clifford Geertz himself argued in his 1981 Storrs Lectures at Yale Law School, “meaning [for] machinery”.’2 The origins of this intellectual, political and aesthetic preference are manifold, but in my mind, some form of meta-theory about the origins and function of law is simply inevitable.3 Furthermore, the pursuit of a coherent explanatory theory does not automatically require or result in an unrealistically unitary image either of international law or of the social reality within which it operates. If anything, both Marx himself and those Marxists interested in questions of imperialism have been sensitive to questions of contradiction as constitutive of the capitalist mode of

2

3

Christopher Tomlins, ‘Historicism and Materiality in Legal Theory’ in Maksymilian Del Mar and Michael Lobban (eds.), Law in Theory and History: New Essays on a Neglected Dialogue (Oxford/Portland, OR: Hart Publishing 2016) 57–83, p. 64. ‘The point is, however, to recognise that our own now-dominant affection for complexity and contingency is simply the latest in a series of styles of doing history, a style that has been given extra staying power by academic professionalisation and self-reproduction, with all its attendant scleroses, but a style nevertheless.’ Ibid. A history of critical international law to date that also accounts for the impact of the historic defeats of the Left as well as for the rise of Hayekian distrust towards the idea that the ‘social’ is knowable remains to be written.

  



production and its global spread. In our case, this emphasis on the structured indeterminacy of ‘civilisation’ does not simply imply argumentative freedom and openness, but also a particular form of argumentative constraint and even entrapment within the contradictions of ‘civilisation’. More importantly, the constant oscillation between ‘improvement’ and ‘biology’ is the particular way in which the discipline of international law registers, reshapes and reproduces the contradictions of global capitalism as a system of production and circulation that produces both homogenisation and unevenness at once. In other words, the indeterminacy of the ‘standard of civilisation’ does not mean that ‘anything goes’. To the contrary, it constitutes one of the most powerful, seductive forms that international law’s pro-capitalist bias assumes. If this is true, then we ought to rethink Koskenniemi’s distinction between international law’s indeterminacy, which inhabits the discipline’s deep structure, and the field’s structural biases, which are seen as the product of the operation of concrete institutions: [E]ven if it is possible to justify many kinds of practices through the use of impeccable professional argument, there is a structural bias in the relevant legal institutions that makes them serve typical, deeply embedded preferences, and that something we feel that is potentially wrong in the world is produced or supported by that bias . . . The fluidity of international law does not deny the fact that there exists at any one time a professional consensus or a mainstream answer to any particular problem.4

Rather, in my account it is in the particular form indeterminacy assumes, namely the oscillation between ‘improvement’ and ‘biology’, that we can trace its bias. This is not a case of the indeterminate legal argument coming first only for concrete legal institutions to impose a certain bias on it after. Bias and indeterminacy in regard to the ‘standard of civilisation’ are joined at the hip as ‘civilisation’ constantly oscillates between ‘improvement’ and ‘biology’. Within this spectrum, a number of possible answers to concrete legal questions are discursively and politically possible. In fact, some of these outcomes might be more beneficial (or rather, less detrimental) than others when it comes to exploited and marginalised peoples. However, by making arguments in the register of ‘civilisation’ one accepts the pro-capitalist and also biology-orientated biases of this particular argumentative structure.

4

Martti Koskenniemi, From Apology to Utopia: The Structure of International Legal Argument (Cambridge: Cambridge University Press 2005) p. 607.

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  

Notably, this is not a bias predictive of the particular outcome of concrete legal struggles. Analysis of historical contingencies, institutional histories, or even of personal idiosyncrasies is better suited for this task. The argument I put forward in this monograph is explanatory of the framework of possibilities – the broader argumentative structure within which the historical contingencies, personal preferences and even historical accidents become possible, acquire meaning and influence. This awareness of structure pushes against certain voluntaristic aspects of critical legal scholarship, including that of Third World Approaches to International Law (TWAIL).5 No matter how self-reflexive, responsible, and historically aware the international lawyer might be, upon entering the realm of ‘civilisation’ in its own terms, they are subject to its contradictions as well as to its ties to racial capitalism. Given the prevalence of ‘civilisation’ even when the concept is not explicitly invoked, this militates against the current trend of positioning the figure of the lawyer as an antidote to the failures of the law.6 This is not to say that the interest in international law as a profession should be rejected altogether. It could well be re-oriented into a study of international lawyers as intellectuals of global capitalism, especially at a time of profound crisis and re-ordering of the international order. Such an account should take seriously the class position and ideological function of international lawyers as intellectuals at the intersection between domestic and transnational class configurations.7 Furthermore, given the impact of the neoliberalisation of higher education, which produces important class stratifications within the profession, a discussion of international law as a profession cannot exclusively focus on the world of diplomats and Ivy League universities, but also needs to take into account the deteriorating material conditions that large sections of 5

6

7

For a persuasive critique of these tendencies from the perspective of Marxist legal theory, see: Ali Hammoudi, ‘The Conjunctural in International Law: The Revolutionary Struggle against Semi-Peripheral Sovereignty in Iraq’ (2016) 37 Third World Quarterly 2028–46. The relevant literature has proliferated during the last decade, especially after Koskenniemi’s embrace of a ‘culture of formalism’ as a response to international law’s complicity with injustice: Justin Desautels-Stein, ‘Chiastic Law in the Crystal Ball: Exploring Legal Formalism and Its Alternative Futures’ (2014) 2 London Review of International Law 263–96; Sahib Singh, ‘Koskenniemi’s Images of the International Lawyer’ (2016) 29 Leiden Journal of International Law 699–726; Jean d’Aspremont, ‘Three International Lawyers in the Hall of Mirrors’ (2019) 32 Leiden Journal of International Law 367–81. On the necessity of class analysis for international law, see: Akbar Rasulov, ‘“The Nameless Rapture of the Struggle”: Towards a Marxist Class-Theoretic Approach to International Law’ (2008) 19 Finnish Yearbook of International Law 243–94.

  



the profession face today.8 Until then, the disciplinary turn to the figure of the lawyer can never be entirely separated from a sense of noble heroism in the face of adversity, or from an effort to position the reified self as an antidote to inescapable textual contradictions. If we allow this to happen then ‘[t]he self becomes in effect one of the rhetorical spaces where ideology does its work – unquestioned. And one of the ways in which ideology does its work is precisely by reproducing this autonomous, originary, integrated self.’9 If the lawyerly self is not an autonomous or self-evident concept, neither is imperialism. In this respect, my book was situated within the comradely efforts of Marxist international legal scholarship to push TWAIL towards a clarification of its central terms, and notably towards the articulation of a clearer understanding of imperialism that centres the question of economic exploitation.10 The turn to history in international law as well as the anxieties produced by the Iraq War made the language of imperialism relevant for contemporary international lawyers. However, despite the apparent consensus that the past of international law can only be understood in relation to imperialism, lawyers do not seem to agree on much else. As I have argued elsewhere, this apparently widespread agreement is also accompanied by an intense, yet unacknowledged, struggle over the meaning, implications and contemporary 8

9

10

On the importance of (academic) institutional struggles for understanding the project of critical international law, see: Akbar Rasulov, ‘What Is Critique? Towards a Sociology of Disciplinary Heterodoxy in Contemporary International Law’ in Jean d’Aspremont, Tarcisio Gazzini, André Nollkaemper and Wouter Werner (eds.), International Law as a Profession (Cambridge: Cambridge University Press 2017) 189–221. On the neoliberalisation of the university and its contradictory impact on certain critical international legal projects, see: Ntina Tzouvala, ‘The Future of Feminist International Legal Scholarship in a Neoliberal University: Doing Law Differently?’ in Susan Harris Rimmer and Kate Ogg (eds.), Research Handbook on Feminist Engagement with International Law (Cheltenham: Edward Elgar 2019) 269–85. Pierre Schlag, ‘“Le Hors de Texte, C’est Moi”: The Politics of Form and the Domestication of Deconstruction’ (1990) 11 Cardozo Law Review 1631–74, 1670. Robert Knox has shown that conservative and radical understandings of imperialism have co-existed in international legal scholarship and practice since decolonisation: Robert Knox, ‘A Critical Examination of the Concept of Imperialism in Marxist and Third World Approaches to International Law’ (PhD thesis, London School of Economics and Political Science 2014). On the usages of radical, Marxist understandings of imperialism in order to pursue racial justice for African-Americans at the United Nations, see: Robert Knox and Ntina Tzouvala, ‘Looking Eastwards: The Bolshevik Theory of Imperialism and International Law’ in Anne Orford, Kathryn Greenman, Anna Saunders and Ntina Tzouvala (eds.), Revolutions in International Law: The Legacies of 1917 (forthcoming, Cambridge University Press).



  

relevance of imperialism for the discipline.11 It is in the context of these muddled disciplinary waters that liberal and conservative international lawyers are able to propose extremely narrow understandings of the concept that negate the radical potential of the turn to history and the re-discovery of imperialism in international relations. Take, for example, Anne Peters’ influential defence of ‘sovereignty as responsibility’ and of the ‘responsibility to protect’ doctrine. Writing against critics who emphasised the dangers of imperialism in humanitarian clothes, Peters retorted that: [M]ost importantly, the existing web of global linkages precludes interventionism and empire. Issues such as terrorism and drugs, climate change, migration, financial stability, or infectious diseases can be reasonably dealt with only through institutionalized global cooperation.12

This is a remarkable statement. What is notable here is not simply the implicit equation of imperialism with (US) unilateralism, which remains typical of liberal defences of international law.13 Rather, the singling out of the war on terror or the ‘war on drugs’ as areas that negate the possibility of imperialism, instead of some of the main areas where juridified imperialism and legally sanctioned racial capitalism have been rampant during the last decades,14 indicates an understanding of imperialism that excludes unequal economic relations, the devaluing of nonwhite lives, and the creation of zones where individuals can be captured and/or killed almost freely. Furthermore, this emphasis on unilateralism 11

12

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14

I have made this argument in the slightly different context of the critique of ‘eurocentrism’ in international law: Ntina Tzouvala, ‘The Specter of Eurocentrism in International Legal History’ Yale Journal of Law and the Humanities (forthcoming). Anne Peters, ‘Humanity as the A and Ω of Sovereignty’ (2009) 20 European Journal of International Law 513–44, 532. For some persuasive critiques of this equation, see: Susan Marks, ‘Three Concepts of Empire’ (2003) 16 Leiden Journal of International Law 897–913, 901; China Miéville, ‘Multilateralism as Terror: International Law, Haiti and Imperialism’ (2008) 19 Finnish Yearbook of International Law 63–92; Akbar Rasulov, ‘Writing about Empire: Remarks on the Logic of a Discourse’ (2010) 23 Leiden Journal of International Law 449–71. Amongst many on imperialism, international law, and the war on terror, see: Antony Anghie, ‘The War on Terror and Iraq in Historical Perspective’ (2005) 43 Osgoode Hall Law Journal 45–66; Vasuki Nesiah, ‘From Berlin to Bonn to Baghdad: A Space for Infinite Justice’ in Hilary Charlesworth and Jean-Marc Coicaud (eds.), Fault Lines of International Legitimacy (Cambridge: Cambridge University Press 2010) 146–72; Samuel Moyn, ‘Drones and Imagination: A Response to Paul Kahn’ (2013) 24 European Journal of International Law 227–33. Kojo Koram’s work has been ground-breaking in establishing the inherent racism of the ‘war on drugs’ and the role of law in the construction of the global colour line: Kojo Koram (ed.), The War on Drugs and the Global Colour Line (London: Pluto Press 2019).

  



is oblivious to the myriad ways, including networks of extraordinary rendition and detention, in which the United States has ‘enlisted’ the sovereignty of post-colonial or other ‘satellite’ states for the global war on terror.15 Similarly, this narrow understanding of imperialism enabled Harold Koh to draw a sharp distinction between the counter-terrorism policies of the Bush and Obama administrations, and to present the latter as a successful counter-example to the current engagement of the United States with international law.16 Pushing back against these efforts to domesticate critique, I put forward an understanding of imperialism that centres the tendency of capitalism for unlimited expansion combined with its tendency constantly to create and re-create unequal development. This approach also enables a critical understanding of international law that is not the static reflection of the commodity form, as Pashukanian theories of law suggest, nor is it ‘a law devoid of interpretative possibilities’.17 Instead, by centring the contradictions at the heart of global capitalism, I was able to put forward a theory of the ‘standard of civilisation’ that acknowledged its indeterminacy both as a source of openness and as a source of constraint. It seems to me that critiquing law while avoiding its reification is one of the biggest challenges for materialist legal theory. Taking seriously the Marxist critique of capitalism as a system that produces patterns and regularities, while also being riddled with impossible contradictions, can offer a pathway to critiquing law’s complicity with capitalist exploitation, environmental destruction and the devaluing of human life while also emphasising that law does so not by being

15

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17

This problem has also been present in critical literature that relies on Agamben’s conceptualisation of the sovereign, who is understood to be singular almost by definition. For a persuasive critique, see: Darryl Li, ‘From Exception to Empire: Sovereignty, Carceral Circulation, and the “Global War on Terror”’ in Carole McGranahan and John F. Collins (eds.), Ethnographies of US Empire (Durham, NC/London: Duke University Press 2018) 456–75. ‘Although some critics claim that the Obama administration’s approach to counterterrorism mirrored George W. Bush’s, in fact Obama visibly shifted to a more nuanced “smart-power” strategy toward counterterrorism. Obama pledged that the United States would fight terrorism by engaging with its allies, translating from the existing laws of war in an effort to integrate lawful targeting and detention into an overarching strategy of smart power, and leveraging limited uses of force with strong legal tools, such as diplomacy, development, and cooperative law enforcement in search of broader diplomatic solutions.’ Harold Hongju Koh, The Trump Administration and International Law (New York/Oxford: Oxford University Press 2018). Schlag, ‘“Le Hors de Texte, C’est Moi”’, 1651.

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  

monolithic, but through the precise form assumed by its indeterminacy and instability. In so doing, I did not produce a theory of international law as a whole. Mine is a finite theory about one pattern of argumentation amongst many, albeit admittedly a significant one. I suspect that in order to explain other argumentative patterns we will need different analytical tools and emphasis on a diverse range of patterns and contradictions (or rather, contradictory patterns). This is not to say that a totalising theory of international law is impossible or even undesirable. Rather, my intuition is that it will have to be painfully constructed through bringing together numerous sets of arguments, institutions and patterns with all their ambiguities, contradictions and even aporias. In my mind, this attempt to understand the whole while doing justice to the parts remains a worthwhile pursuit in this current conjuncture, where our collective inability to imagine the end of capitalism has brought the end of the world closer than ever. As climate change is accelerating and as an increasing number of voices demand that we either ignore it or deal with it through the unleashing of genocidal violence, I cannot help but wonder what are the intellectual projects worth undertaking as we are running out of time. If this book enables us to draw broader conclusions about the arguments, strategies and tactics available to us in this context of unprecedented urgency, these would involve resisting the sirens of conditional inclusion at all costs. The promise of international law that capitalism, or nowadays aggressive neoliberalism, will pave the way for legal status and equality is one that always hangs on a thread. Playing this game involves trying to adapt to a model of producing and consuming that is fundamentally unsustainable. However, the inclusion brought about through conformity to the imperatives of ‘civilisation’ will always be fragile and prone to collapse into the logic of biology. As the ugliest forms of this logic appear to re-emerge in global and domestic politics, I am convinced that we ought to think, argue and act by ourselves and along with others as if everything were at stake, because it is.

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Fiore P., International Law Codified and Its Legal Sanction (translated from the 5th Italian edn by Edwin M. Borchard, New York: Baker 1918). Floyd K., The Reification of Desire: Toward a Queer Marxism (Minneapolis, MN/ London: University of Minnesota Press 2009). Fox G.H., Humanitarian Occupation (Cambridge: Cambridge University Press 2008). Getachew A., Worldmaking after Empire: The Rise and Fall of Self-Determination (Princeton, NJ: Princeton University Press 2019). Gong G.W., The Standard of ‘Civilization’ in International Society (Oxford: Clarendon Press 1984). Grewe W.G., The Epochs of International Law (Berlin: De Gruyter 2001). Grovogui S.N.Z., Sovereigns, Quasi Sovereigns, and Africans: Race and SelfDetermination in International Law (Minneapolis, MN: The University of Minnesota Press, 1996). Gunneflo M., Targeted Killing: A Legal and Political History (Cambridge: Cambridge University Press 2016). Hall D., Mandates, Dependencies and Trusteeship (Washington: Stevens and Sons 1948). Hammoudi A., ‘The Pomegranate Tree Has Smothered Me’: International Law, Imperialism and Labour Struggle in Iraq, 1917–1960 (PhD Thesis, York University 2018). Harvey D., A Brief History of Neoliberalism (Oxford: Oxford University Press 2005). Heathcote G., The Law on the Use of Force: A Feminist Analysis (London/New York: Routledge 2012). Heinrich M., An Introduction to the Three Volumes of Karl Marx’s Capital (New York: Monthly Review Press 2012). Henderson A.E., The Coalition Provisional Authority’s Experience with Economic Reconstruction in Iraq Lessons Identified (Special Report 138, Washington: United States Institute of Peace 2005). Higgins R., Themes and Theories: Selected Essays, Speeches and Writings in International Law (Oxford: Oxford University Press 2009). Holland T.E., Lectures on International Law (London: Sweet & Maxwell 1933). Immerwahr D., How to Hide an Empire: A History of the Greater United States (New York: Farrar, Straus and Giroux 2019). James C.L.R., The Black Jacobins: Toussaint L’Ouverture and the San Domingo Revolution (2nd revised edn, New York: Vintage Books 1989). Johns F., Non-Legality in International Law: Unruly Law (Cambridge: Cambridge University Press 2013). Jouannet E., The Liberal-Welfarist Law of Nations: A History of International Law (translated by Christopher Sutcliffe, Cambridge: Cambridge University Press 2012).

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Kayaoğlu T., Legal Imperialism: Sovereignty and Extraterritoriality in Japan, the Ottoman Empire, and China (Cambridge: Cambridge University Press 2010). Kennedy D., International Legal Structures (Baden-Baden: Nomos Verlagsgesellschaft 1987). Knox R., A Critical Examination of the Concept of Imperialism in Marxist and Third World Approaches to International Law (PhD Thesis, London School of Economics and Political Science 2014). Koh H.H., The Trump Administration and International Law (New York: Oxford University Press 2018). Koram K., The War on Drugs and the Global Colour Line (London: Pluto Press 2019). Koskenniemi M., From Apology to Utopia: The Structure of International Legal Argument (2nd edn, Cambridge: Cambridge University Press 2006). The Gentle Civilizer of Nations: The Rise and Fall of International Law 1870–1960 (Cambridge: Cambridge University Press 2004). Kuklick H., The Savage Within: The Social History of British Anthropology, 1885–1945 (Cambridge: Cambridge University Press 1991). Lawrence T.J., The Principles of International Law (London: Macmillan and Co 1895). Lenin V.I., The Right of Nations to Self-Determination (first published 1914, Forest Grove, OR: University Press of the Pacific 2004). Lewis H., The Politics of Everybody: Feminism, Queer Theory, and Marxism at the Intersection (London: Zed Books 2016). Lorimer J., The Institutes of the Law of Nations: A Treatise of the Jural Relations of Separate Political Communities (Edinburgh: William Blackwood and Sons 1883). Lugard J., The Dual Mandate in British Tropical Africa (5th edn, London: Frank Cass 1965). Maier C.S., Leviathan 2.0: Inventing Modern Statehood (Cambridge, MA: Belknap Press 2014). Mamdani M., Citizen and Subject: Contemporary Africa and the Legacy of Late Colonialism (Princeton, NJ: Princeton University Press 1996). Maine H.S., International Law: The Whewell Lectures (London: John Murray 1888). Manela E., The Wilsonian Moment: Self-Determination and the International Origins of Anticolonial Nationalism (New York: Oxford University Press 2007). Mantena K., Alibis of Empire: Henry Maine and the Ends of Liberal Imperialism (Princeton, NJ: Princeton University Press 2010). Margolies D.S., Özsu U., Pal M., Tzouvala N. (eds.), The Extraterritoriality of Law: History, Theory, Politics (Abingdon: Routledge 2019).

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Martinez J.S., The Slave Trade and the Origins of International Human Rights Law (New York: Oxford University Press 2011). Marks S. (ed.), International Law on the Left: Re-Examining Marxist Legacies (Cambridge: Cambridge University Press 2008). Marx K., Grundrisse: Foundations of the Critique of Political Economy (first published 1857–1961, New York: Penguin Books in association with the New Left Review 1973). Capital: A Critique of Political Economy (first published 1867, translated by Ben Fowkes, London: Penguin Books 1992) 3 vols. The Eighteenth Brumaire of Louis Bonaparte (first published 1852, Moscow: Progress Publishers 1972). Mazower M., No Enchanted Palace: The End of Empire and the Ideological Origins of the United Nations (Princeton, NJ/Oxford: Princeton University Press 2009). Governing the World: The History of an Idea (New York: Penguin Books 2012). McClintock A., Imperial Leather: Race, Gender and Sexuality in the Colonial Contest (New York/London: Routledge 1995). Mieli M., Towards a Gay Communism: Elements of a Homosexual Critique (translated by David French and Evan Calder Williams, London: Pluto Press 2018). Miéville C., Between Equal Rights: A Marxist Theory of International Law (London: Pluto Press 2006). Moyn S., The Last Utopia: Human Rights in History (Cambridge, MA: Harvard University Press 2012). Natarajan U., The 2003 Iraq Invasion and the Nature of International Law: Third World Approaches to the Legal Debate (PhD Thesis, Australian National University 2008). Nys E., The Independent State of the Congo and International Law (Brussels: J. Lebègue and c 1903). Orford A., Reading Humanitarian Intervention: Human Rights and the Use of Force in International Law (Cambridge: Cambridge University Press 2003). International Authority and the Responsibility to Protect (Cambridge: Cambridge University Press 2011). Pahuja S., Decolonising International Law: Development, Economic Growth and the Politics of Universality (Cambridge: Cambridge University Press 2011). Parfitt R., The Process of International Legal Reproduction: Inequality, Historiography, Resistance (Cambridge: Cambridge University Press 2019). Peevers C., The Politics of Justifying Force: The Suez Crisis, the Iraq War, and International Law (Oxford: Oxford University Press 2013). Pedersen S., The Guardians: The League of Nations and the Crisis of Empire (Oxford: Oxford University Press 2015).

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Pitkin W.H., Siam’s Case for Revision of Obsolete Treaty Obligations, Admittedly Inapplicable to Present Conditions (New York: Despatch Printery and Bindery 1919). Pitts J., Boundaries of the International: Law and Empire (Cambridge, MA: Harvard University Press 2018). Plummer B.G., Rising Wind: Black Americans and US Foreign Affairs, 1935–1960 (Chapter Hill: The University of North Carolina Press 2007). Polanyi K., The Great Transformation: The Political and Economic Origins of Our Time (first published 1944, Boston: Beacon Press 2001). Poulantzas N., State, Power, Socialism (New York: Verso 2001). Rajagopal B., International Law from Below: Development, Social Movements and Third World Resistance (Cambridge: Cambridge University Press 2003). Resch R.P., Althusser and the Renewal of Marxist Social Theory (Berkeley/Los Angeles/Oxford: University of California Press 1992). Reynolds J., Empire, Emergency and International Law (Cambridge: Cambridge University Press 2017). Rivier A., Lehrbuch des Völkerrechts (Stuttgart: Elke 1889). Rodiles A., Coalitions of the Willing and International Law: The Interplay between Formality and Informality (Cambridge: Cambridge University Press 2018). Rojas C.M., Civilization and Violence: Regimes of Representation in NineteenthCentury Colombia (Minneapolis, MN: University of Minnesota Press 2001). Rosenthal C., Accounting for Slavery: Masters and Management (Cambridge, MA: Harvard University Press 2018). Ruskola T., Legal Orientalism: China, the United States, and Modern Law (Cambridge, MA/London: Harvard University Press 2013). Said E., Orientalism (New York: Vintage Books 1979). Salomon C., L’Occupation des Territoires sans Maître. Etude de Droit International (Paris: A. Giard 1889). Scully E.P., Bargaining with the State from Afar: American Citizenship in Treaty Port China, 1844-1942 (New York: Columbia University Press 2001). Shahabuddin M., Ethnicity and International Law: Histories, Politics and Practices (Cambridge: Cambridge University Press 2016). Simpson G., Great Powers and Outlaw States: Unequal Sovereigns in the International Legal Order (Cambridge: Cambridge University Press 2004). Slomin S., South West Africa and the United Nations: An International Mandate in Dispute (Baltimore, MD/London: John Hopkins University Press 1973). Spiermann O., International Legal Argument in the Permanent Court of International Justice: The Rise of the International Judiciary (Cambridge: Cambridge University Press 2005). Stanley H. (ed.), The East and the West: Our Dealings with Our Neighbours: Essays by Different Hands (London: Hatchard and Co 1865).

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Steward A., The Sacred Trust: South West Africa (Johannesburg: Da Gama Publications 1963). Storr C., Nauru: International Status, Imperial Form, and the Histories of International Law (PhD Thesis, The University of Melbourne 2017). SWAPO of Namibia Department of Information and Publicity, To Be Born a Nations: The Liberation Struggle for Namibia (London: Zed Press 1981). Talmon S., The Occupation of Iraq: The Official Documents of the Coalition Provisional Authority and the Iraqi Governing Council (Oxford/Portland, OR: Hart Publishing 2013). Tilly C., Coercion, Capital, and European States, AD 990–1992 (Cambridge, MA/ Oxford: Blackwell 1992). Trask H.-K., From a Native Daughter: Colonialism and Sovereignty in Hawai’i (Honolulu: University of Hawai’i Press 1999). Tseng Y.-H., The Termination of Unequal Treaties in International Law: Studies in Comparative Jurisprudence and Conventional Law of Nations (Shanghai: The Commercial Press 1931). Tuori T., ‘The Emergence of Rights Language and the South West Africa Cases of the International Court of Justice’ in From League of Nations Mandates to Decolonization: A History of the Language of Rights in International Law (PhD Thesis, University of Helsinki 2016). Twiss T., The Law of Nations Considered as Independent Political Communities (London: Oxford University Press 1861). Wheaton H., Elements of International Law (A.C. Boyd ed., 3rd edn, London: Stevens and Sons 1889). Wilde R., International Territorial Administration: How Trusteeship and the Civilizing Mission Never Went Away (Oxford: Oxford University Press 2008). Williams E., Capitalism and Slavery (first published 1944, Chapel Hill, NC/ London: University of North Carolina Press 1994). Williams P.J., The Alchemy of Race and Rights: The Diary of a Law Professor (Cambridge, MA: Harvard University Press 1991). Xuma A.B., South West Africa: Annexation or United Nations Trusteeship? (New York: South African Passive Resistance Council 1946).

Book Chapters Bhuta N., ‘Governmentalizing Sovereignty: Indexes of State Fragility and the Calculability of Political Order’ in Davis K.E. et al. (eds.), Governance by Indicators: Global Power through Classification and Rankings (Oxford: Oxford University Press 2012) 132–62. Bourmaud P., ‘Evolutionism, Normalization, and the Mandatory Anti-Alcoholism from Africa to the Middle East (1918–1939)’ in Schayegh C., Arsan A. (eds.),

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The Routledge Handbook of the History of the Middle East Mandates (London: Routledge 2015) 76–87. Bowring B., ‘Positivism versus Self-Determination: The Contradictions of Soviet International Law’ in Marks S. (ed.) International Law on the Left: Re-examining Marxist Legacies (Cambridge: Cambridge University Press 2008) 133–68. Buchanan R., Hewitt J., ‘Treaty Canoe’ in Hohmann J., Joyce D. (eds.), International Law’s Objects (Oxford: Oxford University Press 2018) 491–503. Chomsky N., ‘The Struggle for Democracy in the New World Order’ in Gills B., Rocamora J., Wilson R., (eds.), Low Intensity Democracy: Political Power in the New World Order (London/Boulder, CO: Pluto Press 1993) 80–99. Craven M., ‘Colonialism and Domination’ in Fassbender B., Peters A. (eds.), The Oxford Handbook of the History of International Law (Oxford: Oxford University Press 2012) 863–90. Efrati N., ‘Colonial Gender Discourse in Iraq: Constructing Noncitizens’ in Schayegh C., Arsan A. (eds.), The Routledge Handbook of the History of the Middle East Mandates (London: Routledge 2015) 157–69. Eslava L., Fakhri M., Nesiah V., ‘The Spirit of Bandung’ in Eslava L., Fakhri M, Nesiah V. (eds.), Bandung, Global History and International Law: Critical Pasts and Pending Futures (Cambridge: Cambridge University Press 2017) 3–32. Fitzmaurice A., ‘Scepticism of the Civilizing Mission in International Law’ in Koskenniemi M., Rech W., Jiménez Fonseca M. (eds.), International Law and Empire: Historical Explorations (Oxford: Oxford University Press, 2017) 358–84. Gruffydd Jones B., ‘“Good Governance” and “State Failure”’ in Anievas A. et al. (eds.), Race and Racism in International Relations: Confronting the Global Colour Line (Abingdon/New York: Routledge 2014) 62–80. Guilfoyle D., ‘SS Lotus (France v Turkey) (1927)’ in Bjorge E., Miles C. (eds.), Landmark Cases in Public International Law (Portland, OR: Hart Publishing 2017) 89–109. Hernández G.I., ‘Article 23’ in Kolb R. (ed.), Commentaire Sur le Pacte de la Société des Nations: Article par Article (Brussels: Bruylant 2014) 1033–1049. Knox R., ‘Race, Racialisation and Rivalry in the International Legal Order’ in Anievas A. et al. (eds.), Race and Racism in International Relations: Confronting the Global Colour Line (Abingdon/New York: Routledge 2014) 175–92. Knox R., Tzouvala N., ‘Looking Eastwards: The Bolshevik Theory of Imperialism and International Law’ in Orford A. et al. (eds.), Revolutions in International Law: The Legacies of 1917 (forthcoming, Cambridge University Press). Kollontai A., ‘The Social Basis of the Woman Question’ in Holt A. (ed.), Selected Writings of Alexandra Kollontai (first published 1909, London: Allison and Busby 1977) 58–74.

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Li D., ‘From Exception to Empire: Sovereignty, Carceral Circulation, and the “Global War on Terror”’ in McGranahan C., Collins J.F. (eds.), Ethnographies of US Empire (Durham, NC/London: Duke University Press 2018) 456–75. Marks S., ‘Exploitation as an International Legal Concept’ in Marks S. (ed.), International Law on the Left: Re-Examining Marxist Legacies (Cambridge: Cambridge University Press 2008), 281–307. Matsuda M., ‘Beyond and Not Beyond, Black and White: Deconstruction Has a Politics’ in Valdes F., McCristal Culp J., Harris A.P. (eds.), Crossroads, Directions and a New Critical Race Theory (Philadelphia, PA: Temple University Press 2002) 393–8. Mégret F., ‘From “Savages” to “Unlawful Combatants”: A Postcolonial Look at International Humanitarian Law’s “Other”’ in Orford A. (ed.) International Law and Its Others (Cambridge: Cambridge University Press 2006) 265–317. Nesiah V., ‘From Berlin to Bonn to Baghdad: A Space for Infinite Justice’ in Charlesworth H., Coicaud J.-M. (eds.), Fault Lines of International Legitimacy (Cambridge: Cambridge University Press, 2010) 147–72. Nimtz H., ‘The Eurocentric Marx and Engels and Other Related Myths’ in Bartolovich C., Lazarus N., (eds.), Marxism, Modernity, and Postcolonial Studies (Cambridge: Cambridge University Press 2004) 65–80. Obregón L., ‘Completing Civilization: Creole Consciousness and International Law in Nineteenth-Century Latin America’ in Orford A. (ed.), International Law and Its Others (Cambridge: Cambridge University Press 2006) 247–64. Orford A., ‘A Jurisprudence of the Limit’ in Orford A. (ed.), International Law and Its Others (Cambridge: Cambridge University Press 2006) 1–32. Özsu U., ‘The Ottoman Empire, the Origins of Extraterritoriality, and International Legal Theory’ in Orford A., Hoffman F. (eds.) k Oxford Handbook of the Theory of International Law (Oxford: Oxford University Press 2016) 123–37. Power N., ‘Reading Social Reproduction into Reading Capital’ in Nesbitt N. (ed.), The Concept in Crisis: Reading Capital Today (Durham, NC/London: Duke University Press 2017) 219–28. Rasulov A., ‘What Is Critique? Towards a Sociology of Disciplinary Heterodoxy in Contemporary International Law’ in d’Aspremont J., Gazzini T., Nollkamper A., Werner W. (eds.), International Law as a Profession (Cambridge: Cambridge University Press 2017) 189–221. Schmitt M., ‘Responding to Transnational Terrorism under the Jus Ad Bellum: A Normative Framework’ in Schmitt M., Pejic J. (eds.), International Law and Armed Conflict: Exploring the Faultlines (Leiden/Boston: Brill 2007) 157–95. Smuts J.C., ‘The League of Nations: A Practical Suggestion’, reprinted in Miller D.H. (ed.), The Drafting of the Covenant (first published 1928, New York: G.P. Putnam’s Sons 1971).

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Taha M., ‘Self-Determination, Oil and Islam in the Face of the League of Nations: The Mosul Dispute and the “Non-European” Legal Terrain’ in French D. (ed.), Statehood and Self-Determination: Reconciling Tradition and Modernity in International Law (Cambridge: Cambridge University Press 2013) 325–48. ‘Law, Labour, Class Struggle and Nervous Breakdowns’ in Orford A. et al. (eds.), Revolutions in International Law: The Legacies of 1917 (forthcoming, Cambridge University Press). Tomlins C., ‘Historicism and Materiality in Legal Theory’ in Del Mar M., Lobban M. (eds.), Law in Theory and History: New Essays on a Neglected Dialogue (Oxford/Portland, OR: Hart Publishing 2016) 57–83. Tzouvala N., ‘Civilisation’ in Singh S., d’Aspremont J. (eds.), Concepts for International Law: Contributions to Disciplinary Thought (Cheltenham: Edward Elgar 2018) 83–104. ‘The Future of Feminist International Legal Scholarship in a Neoliberal University: Doing Law Differently?’ in Harris Rimmer S., Ogg K. (eds.), Research Handbook on Feminist Engagement with International Law (Cheltenham: Edward Elgar 2019) 269–85. Tzouvala N., ‘“And the Laws Are Rude, Crude and Uncertain”: Extraterritoriality and the Emergence of Territorialised Statehood in Siam’ in Margolies D., Özsu U., Pal M., Tzouvala N., (eds.), The Extraterritoriality of Law: History, Theory, Politics (Abingdon: Routledge 2019) 134–50. Westlake J., ‘The Equality and Independence of States’ in Oppenheim L. (ed.), The Collected Papers of John Westlake on Public International Law (Cambridge: Cambridge University Press 1914) 86–110. Winichakul T., ‘The Others Within: Travel and Ethno-Spatial Differentiation of Siamese Subjects 1885-1910’ in Turton A., (ed.), Civility and Savagery: Social Identity in Thai States (London: Curzon Press 2000) 38–62.

Journal Articles Aalberts T.A., Werner W.G., ‘Mobilising Uncertainty and the Making of Responsible Sovereigns’ (2011) 37 Review of International Studies 2183–200. Ahmed D.I., ‘Defending Weak States against the “Unwilling or Unable” Doctrine of Self-Defense’ (2013) 9 Journal of International Law and International Relations 1–37. Allen J., ‘A Theory of Adjudication: Law as Magic’ (2008) 41 Suffolk University Law Review 773–831. Allott P., ‘The Concept of International Law’ (1999) 10 European Journal of International Law 31–50. Anand P.R., ‘Family of “Civilized” States and Japan: A Story of Humiliation, Assimilation, Defiance and Confrontation’ (2003) 5 Journal of the History of International Law 1–76.

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Anghie A., ‘“The Heart of My Home”: Colonialism, Environmental Damage, and the Nauru Case (1993) 34 Harvard International Law Journal 445–506. ‘Francisco de Vitoria and the Colonial Origins of International Law’ (1996) 5 Social and Legal Studies 321–36. ‘Colonialism and the Birth of International Institutions: Sovereignty, Economy and the Mandate System of the League of Nations’ (2001–2002) 34 New York University Journal of International Law and Politics 513–633. ‘The War on Terror and Iraq in Historical Perspective’ (2005) 43 Osgoode Hall Law Journal 45–66. Aristodemou M., ‘A Constant Craving for Fresh Brains and a Taste for Decaffeinated Neighbours’ (2014) 25 European Journal of International Law 35–58. Augusti E., ‘From Capitulations to Unequal Treaties: The Matter of an Extraterritorial Jurisdiction in the Ottoman Empire’ (2011) 4 Journal of Civil Law Studies 285–307. Bethlehem D., ‘Principles Relevant to the Scope of a State’s Right of Self-Defense against an Imminent or Actual Armed Attack by Nonstate Actors’ (2012) 106 American Journal of International Law 770–7. Bentwich N., ‘Mandated Territories: Palestine and Mesopotamia’ (1921–1922) 2 British Yearbook of International Law 48–56. Berman N., ‘In the Wake of Empire’ (1999) 14 American University International Law Review 1521–69. ‘Legitimacy through Defiance: From Goa to Iraq’ (2005) 23 Wisconsin International Law Journal 93–125. Bhandar B., ‘Title by Registration: Instituting Modern Property Law and Creating Racial Value in the Settler Colony’ (2015) 42 Journal of Law and Society 253–82. Boukalas C., ‘Class War-on-Terror: Counterterrorism, Accumulation, Crisis’ (2015) 8 Critical Studies on Terrorism 55–71. Bowring B., ‘What Is Radical in “Radical International Law”?’ (2011) 22 Finnish Yearbook of International Law 1–29. Brown W., ‘Finding the Man in the State’ (1992) 18 Feminist Studies 7–34. Brunnée J., Toope S.J., ‘Self-Defence against Non-State Actors: Are Powerful States Willing but Unable to Change International Law?’ (2018) 67 International and Comparative Law Quarterly 263–86. Capers I.B., ‘Reading Back, Reading Black’ (2006) 35 Hofstra Law Review 9–22. Charlesworth H., ‘Law after War’ (2007) 8 Melbourne Journal of International Law 233–44. Chimni B.S., ‘Customary International Law: A Third World Perspective’ (2018) 112 American Journal of International Law 1–46. Clark M., ‘A Conceptual History of Recognition in British International Legal Thought’ (2017) 87 British Yearbook of International Law 18–97. ‘Ambivalence, Anxieties/Adaptations, Advances: Conceptual History and International Law’ (2018) 31 Leiden Journal of International Law 747–71.

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Clark R.S., ‘The International League for Human Rights and South West Africa 1947–1957: The Human Rights NGO as Catalyst in the International Legal Process’ (1981) 3(4) Human Rights Quarterly 101–36. Craven M., ‘Between Law and History: The Berlin Conference of 1884–1885 and the Logic of Free Trade’ (2015) 3 London Review of International Law 31–59. Cobbing A., ‘A Victorian Embarrassment: Consular Jurisdiction and the Evils of Extraterritoriality’ (2018) 40 The International History Review 273–91. Cooper F., ‘Possibility and Constraint: African Independence in Historical Perspective’ (2008) 49 Journal of African History 167–97. Cover R.M., ‘The Supreme Court, 1982 Term – Foreword: Nomos and Narrative’ (1983) 97(4) Harvard Law Review 4–68. d’Aspremont J., ‘Three International Lawyers in the Hall of Mirrors’ (2019) 32 Leiden Journal of International Law 367–81. Davidson N., ‘The Termination of the Iraq Mandate’ (1933) 12 International Affairs 60–78. Davies M., ‘The Ethos of Legal Pluralism’ (2005) 27 Sydney Law Review 87–112. Deeks A., ‘“Unwilling or Unable”: Toward a Normative Framework for Extraterritorial Self-Defense’ (2012) 52 Virginia Journal of International Law 483–548. Desautels-Stein J., ‘Chiastic Law in the Crystal Ball: Exploring Legal Formalism and Its Alternative Futures’ (2014) 2 London Review of International Law 263–96. ‘Structuralist Legal Histories’ (2015) 78 Law and Contemporary Problems 37–59. Dimier V., ‘On Good Colonial Government: Lessons from the League of Nations’ (2004) 18 Global Society 279–99. Dugard J., ‘The South West Africa Cases, Second Phase, 1966’ (1966) 83 South African Law Journal 429–60. Dziedzic A., McMillan M., ‘Australian Indigenous Constitutions: Recognition and Renewal’ (2016) 44 Federal Law Review 337–61. Eslava Arcila L.F., ‘Occupation Law: (Mis)use and Consequences in Iraq’ (2007) 21 Revista Contexto 79–114. Fakhri M., ‘Introduction – Questioning TWAIL’s Agenda’ (2012) 14 (1) Oregon Review of International Law 1–15. ‘Third World Sovereignty, Indigenous Sovereignty, and Food Sovereignty: Living with Sovereignty despite the Map’ (2018) 9(3–4) Transnational Legal Theory 1–36. Falk R.A., ‘The South West Africa Cases: An Appraisal’ (1967) 21 International Organization 1–23. Federici S., ‘Precarious Labour: A Feminist Perspective’ (2008) 1 Journal of Aesthetics and Protest 21–35.

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Feichtner I., ‘Sharing the Riches of the Sea: The Redistributive and Fiscal Dimension of Deep Seabed Exploitation’ (2019) 30 European Journal of International Law 601–33. Fidler D.P., ‘A Kinder, Gentler System of Capitulations? International Law, Structural Adjustment Policies, and the Standard of Liberal, Globalized Civilization’ (2000) 35 Texas International Law Journal 387–413. ‘The Return of the Standard of Civilization’ (2001) 2 Chicago Journal of International Law 137–57. Field D.D., ‘Amelioration of the Laws of War Required by Modern Civilisation’ (1888) 13 The Law Magazine and Review 109–22. Gordon R.J., ‘Anthropology in the World Court: The 1966 South-West Africa Case’ (2004) 31 History of Anthropology Newsletter 3–11. ‘Apartheid’s Anthropologists: The Genealogy of Afrikaner Anthropology’ (2009) 15 American Ethnologist 535–53. Gordon R.W., ‘Critical Legal Histories’ (1984) 36 Stanford Law Review 57–125. Greenman K., ‘Aliens in Latin America: Intervention, Arbitration and State Responsibility for Rebels’ (2018) 31 Leiden Journal of International Law 617–39. Gutierrez Sanin F., ‘Evaluating State Performance: A Critical View of State Failure and Fragility Indexes’ (2011) 23 European Journal of Development Research 20–42. Hakimi M., ‘Defensive Force against Non-State Actors: The State of Play’ (2015) 91 International Law Studies 1–31. Hales J.C., ‘Some Legal Aspects of the Mandate System: Sovereignty, Nationality, Termination and Transfer’ (1937) 23 Transactions of the Grotius Society 85–126. Hammoudi A., ‘The Conjunctural in International Law: The Revolutionary Struggle against Semi-Peripheral Sovereignty in Iraq’ (2016) 37 Third World Quarterly 2028–46. Harris Evans L., ‘The General Principles Governing the Termination of a Mandate’ (1932) 26 American Journal of International Law 735–58. Hasan Khan A., ‘Inheriting a Tragic Ethos: Learning from Radhabinod Pal’ (2016) 110 AJIL Unbound 25–30. Heathcote G., ‘Feminist Reflections on the “End” of the War on Terror’ (2010) 11 Melbourne Journal of International Law 277–307. Heller K.J., ‘Specially-Affected States and the Formation of Custom’ (2018) 112 American Journal of International Law 119–243. Hohfeld W.N., ‘Some Fundamental Legal Conceptions as Applied in Judicial Reasoning’ (1913–1914) 23 Yale Law Journal 16–59. Horowitz R.S., ‘International Law and State Transformation in China, Siam, and the Ottoman Empire during the Nineteenth Century’ (2004) 15 Journal of World History 445–86.

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Tzouvala N., ‘TWAIL and the “Unwilling or Unable” Doctrine: Continuities and Ruptures’ (2015) 106 AJIL Unbound 266–70. ‘Chronicle of a Death Foretold? Thinking about Sovereignty, Expertise and Neoliberalism in the Light of Brexit’ (2016) 17 [Special Brexit Supplement] German Law Journal 117–24. ‘Food for the Global Market: The Neoliberal Reconstruction of Agriculture in Occupied Iraq (2003–2004) and the Role of International Law’ (2017) 17 Global Jurist 1–27. ‘A False Promise? Regulating Land-Grabbing and the Postcolonial State’ (2018) 32 Leiden Journal of International Law 235–53. ‘“These Ancient Arenas of Racial Struggles”: International Law and the Balkans 1878–1949’ (2018) 29 European Journal of International Law 1149–71. ‘Provincializing Europe – Not Capital – in the History of International Law’ Yale Journal of Law and the Humanities (forthcoming). Tzouvala N., Grasten M., ‘The Political Economy of International Transitional Administration: Regulating Food and Farming in Kosovo and Iraq’ (2018) 24 Contemporary Politics 588–606. Van Steenberghe R., ‘The Law of Self-Defence and the New Argumentative Landscape on the Expansionists’ Side’ (2016) 29 Leiden Journal of International Law 43–65. Watson I., ‘There Is No Possibility of Rights without Law: So Until Then, Don’t Thumb Print or Sign Anything!’ (2000) 5 Indigenous Law Bulletin 4–7. ‘Sovereign Spaces, Caring for Country, and the Homeless Position of Aboriginal Peoples’ (2009) 108 South Atlantic Quarterly 27–50. Westlake J., ‘The Balkan Question and International Law’ (1906) 60 The Nineteenth Century and After: A Monthly Review 889–95. Wheatley N., ‘Mandatory Interpretation: Legal Hermeneutics and the New International Order in Arab and Jewish Petitions to the League of Nations’ (2015) 227 Past &Present 205–48. Wheatley N.G., ‘Spectral Legal Personality in Interwar International Law: On New Ways of Not Being a State’ (2017) 35 Law and History Review 753–87. Wiechers M., ‘South West Africa: The Decision of 16 July 1966 and Its Aftermath’ (1968) 1 Comparative and International Law Journal of South Africa 408–46. ‘Namibia: The 1982 Constitutional Principles and Their Legal Significance’ (1989–1990) 15 South African Yearbook of International Law 1–21. Wolfrum R., ‘Iraq – From Belligerent Occupation to Iraqi Exercise of Sovereignty: Foreign Power versus International Community Interference’ (2005) 9 Max Planck Yearbook of United Nations Law 1–45. Wood M., ‘Self-Defence against Non-State Actors – A Practitioner’s View’ 77 (2017) ZaöRV 75–7. Wright Q., ‘The Mosul Dispute’ (1926) 20 American Journal of International Law 453–64.

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‘The Proposed Termination of the Iraq Mandate’ (1931) 25 American Journal of International Law 436–46. Yamauchi S., ‘Civilisation and International Law in Japan during the Meiji Era (1862–1912)’ (1996) 24 Hitotsubashi Journal of Law and Politics 1–25. Yoo J., ‘Iraqi Reconstruction and the Law of Occupation’ (2004) 11 University of California Davis Journal of International Law and Policy 7–22. ‘Fixing Failed States’ (2011) 99 California Law Review 95–150. Damrosch H.F., Oxman B.H., ‘Agora: Future Implications of the Iraq Conflict’ (2003) 97 American Journal of International Law 552–642.

Online Publications Bogliolo L., ‘Law, Neoliberal Authoritarianism, and the Brazilian Crisis’ (2019) Third World Approaches to International Law Review: Reflections, available at: https://twailr.com/law-neoliberal-authoritarianism-and-the-brazilian-crisis/. Bush G.W., ‘Speech to the American Enterprise Institute’ (The Guardian, 27 February 2003) available at: www.theguardian.com/world/2003/feb/27/usa.iraq2. Gurmendi A., ‘Leticia & Pancho: The Alleged Historic Precedents for Unwilling or Unable in Latin America, Explored (Part I, Leticia)’ (Opinio Juris, 7 November 2019) available at: http://opiniojuris.org/2018/11/07/leticia-pancho-thealleged-historic-precedents-for-unwilling-or-unable-in-latin-americaexplored-part-i-leticia/. Parfitt R., ‘The Far-Right, the Third World and the Wrong Question’ (2019) Third World Approaches to International Law Review: Reflections, available at: https://twailr.com/the-far-right-the-third-world-and-the-wrong-question/. Tzouvala N., ‘Macron & Africa’s “Civilisational” Problem’ (Critical Legal Thinking, 14 July 2017) available at: http://criticallegalthinking.com/2017/07/14/ macron-africas-civilisational-problem/.

International and Domestic Cases International Court of Justice Decisions and Advisory Opinions Reparation for Injuries Suffered in the Service of the United Nations (Advisory Opinion) [1949] ICJ Rep 174. International Status of South West Africa (Advisory Opinion) [1950] ICJ Rep 128. Voting Procedure on Questions Relating to Reports and Petitions Concerning the Territory of South West Africa (Advisory Opinion) [1955] ICJ Rep 67. Admissibility of Hearings of Petitioners by the Committee on South West Africa (Advisory Opinion) [1956] ICJ Rep 23. South West Africa (Ethiopia v South Africa, Liberia v South Africa) (Preliminary Objections) [1962] ICJ Rep 319.

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South West Africa (Ethiopia v South Africa, Liberia v South Africa) (Second Phase) [1966] ICJ Rep 6. North Sea Continental Shelf (Germany v Denmark) (Merits) [1969] ICJ Rep 3. Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (Advisory Opinion) [1971] ICJ Rep 16. Maritime Delimitation in the Area between Greenland and Jan Mayen (Denmark v Norway) (Merits) [1993] ICJ Rep 38.

Other International Court of Justice Documents ‘Exposé du Gouvernement Égyptien’, International Status of South West Africa [1950] ICJ Pleadings 67. ‘Statement Union of South Africa’, International Status of South West Africa [1950] ICJ Pleadings 72. ‘Written Statement of the USA’, International Status of South West Africa [1950] ICJ Pleadings 85. ‘Written Statement of the Government of India’, International Status of South West Africa [1950] ICJ Pleadings 140. ‘Statement by Dr Steyn (South Africa)’, International Status of South West Africa [1950] ICJ Pleadings 273. ‘Memorial Submitted by the Government of Ethiopia’, South West Africa (Ethiopia v South Africa, Liberia v South Africa) [1966] 1 ICJ Pleadings 32. ‘Counter-Memorial Filed by the Government of the Republic of South Africa’, South West Africa (Ethiopia v South Africa, Liberia v South Africa) [1966] 2 ICJ Pleadings 1. ‘Reply of Mr Gross’, South West Africa (Ethiopia v South Africa, Liberia v South Africa) [1966] 9 ICJ Pleadings 124. ‘Evidence of Mr Eiselen’, South West Africa (Ethiopia v South Africa, Liberia v South Africa) [1966] 10 ICJ Pleadings 88. ‘Reply by Mr de Villiers’, South West Africa (Ethiopia v South Africa, Liberia v South Africa) [1966] 10 ICJ Pleadings 188. ‘Evidence of Mr Bruwer’, South West Africa (Ethiopia v South Africa, Liberia v South Africa) [1966] 10 ICJ Pleadings 238.

Decisions of Other Courts and Tribunals In Re Ross, 140 U.S. 453 (1891). Denunciation of the Treaty of November 2nd, 1865, between China and Belgium (China v Belgium) (1927) PCIJ Series C no 16/1, p. 52. Island of Palmas Case (Netherlands v US) (1928) 2 RIAA 839.

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Treaties and Other International Instruments Statutes of the Institute of International Law (Ghent, 1873). Convention (IV) Respecting the Laws and Customs of War on Land and Its Annex: Regulations Concerning the Laws and Customs of War on Land (adopted 18 October 1907, entered into force 26 January 1910). Covenant of the League of Nations (adopted 29 April 1919, entered into force 10 January 1920) [1919] UKTS 4. Convention Fixing the Minimum Age for Admission of Children to Industrial Employment (adopted 28 November 1919, entered into force 13 June 1921) 38 UNTS 81. Convention Concerning Employment of Women during the Night (adopted 28 November 1919, entered into force 13 June 1921) 38 UNTS 67. Convention Concerning the Application of the Weekly Rest in Industrial Undertakings (adopted 17 November 1921, entered into force 19 June 1923) 38 UNTS 187. Treaty of Alliance between Britain and Iraq (signed 10 October 1922, ratified 19 December 1924). Treaty of Alliance between United Kingdom and Iraq (signed 30 June 1930). Charter of the United Nations (adopted 26 June 1945, entered into force 24 October 1945) 1 UNTS XVI. Statute of the International Court of Justice (annexed to the UN Charter) 33 USTS 993. Geneva Convention Relative to the Protection of Civilian Persons in Time of War (adopted 12 August 1949, entered into force 21 October 1950) 75 UNTS 287.

League of Nations Documents Constitution of the Permanent Mandates Commission (approved by the League Council 1 December 1920). ‘Eighteenth Session of the League of Nations Council’ (1922) 3 League of Nations Official Journal 513. ‘Note by Lord Lugard’ (1931) 20 Permanent Mandates Commission Minutes. ‘Report by Count de Penha Garcia’ (1931) 20 Permanent Mandates Commission Minutes. ‘Communist Activity in Palestine’ (1931) 20 Permanent Mandates Commission Minutes. ‘Note by M. van Rees: General Conditions that must be fulfilled before the mandate regime can be brought to an end in respect of a country placed under that regime’ (1931) 20 Permanent Mandates Commission Minutes, annex 3.

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UN Documents UN Security Council The Situation in Namibia, UNSC Res 264 (20 March 1969). UNSC Res 1327 (13 November 2000) S/RES/1327. UN Security Council, ‘Letter dated 30 November 2000 from the President of the Security Council to the Secretary-General’ (30 November 2000) S/2000/ 1141. UN Security Council, ‘Letter dated 8 May 2003 from the Permanent Representatives of the United Kingdom of Great Britain and Northern Ireland and the United States of America to the United Nations addressed to the President of the Security Council’ (8 May 2003) S/2003/538. UNSC Res 1483 (22 May 2003) UN Doc S/RES/1483. UN Security Council, ‘Report of the Secretary-General Pursuant to Paragraph 24 of Security Council Resolution 1483’ (17 July 2003) S/2003/715. UN Security Council, ‘Letter dated 23 February 2004 from the Secretary-General to the President of the Security Council’ (23 February 2004) S/2004/140. UNSC Res 1546 (8 June 2004) S/RES/1546.

UN General Assembly Future Status of South West Africa, UNGA Res 65(I) (14 December 1946). Universal Declaration of Human Rights (adopted 10 December 1948) UNGA Res 217 A(III). UN GAOR, 4th Comm, 5th sess, 191st mtg (30 November 1950). Question of South West Africa, UNGA Res 2145(XXI) (27 October 1966). Question of South West Africa, UNGA Res 2372 (XXII) (13 June 1968). UN General Assembly, ‘Report of the Panel on United Nations Peace Operations’ (21 August 2000) A/55/305-S/2000/809.

Other United Nations, Documents of the United Nations Conference on International Organization, San Francisco, 1945 (New York/London: United Nations Information Organizations 1945).

Iraq Legislation Coalition Provisional Authority, ‘The Coalition Provisional Authority’ (Regulation 1, 16 May 2003) CPA/REG/16 May 2003/01.

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Coalition Provisional Authority, ‘De-Ba’athification of Iraqi Society’ (Order 1, 16 May 2003) CPA/ORD/16 May 2003/01. Coalition Provisional Authority, ‘Establishment of the Iraqi de-Ba’athification Council’ (Order 5, 25 May 2003) CPA/ORD/25 May 2003/05. Coalition Provisional Authority, ‘Prohibited Media Activity’ (Order 14, 10 June 2003) CPA/ORD/10 June 2003/14. Coalition Provisional Authority, ‘Measures to Ensure the Independence of the Central Bank of Iraq’ (Order 18, 7 July 2003) CPA/ORD/07 July 2003/18. Coalition Provisional Authority, ‘Freedom of Assembly’ (Order 19, 9 July 2003) CPA/ORD/09 July 2003/19. Coalition Provisional Authority, ‘Trade Bank of Iraq’ (Order 20, 17 July 2003) CPA/ORD/17 July 2003/20. Coalition Provisional Authority, ‘Tax Strategy for 2003’ (Order 37, 19 September 2003) CPA/ORD/19 September 2003/37. Coalition Provisional Authority, ‘Foreign Investment’ (Order 39, 19 September 2003) CPA/ORD/19 September 2003/39. Coalition Provisional Authority, ‘Tax Strategy of 2004’ (Order 49, 19 February 2004) CPA/ORD/19 February 2004/49. Law of Administration for the State of Iraq for the Transitional Period (Iraq) 8 March 2004. Coalition Provisional Authority, ‘Patent, Industrial Design, Undisclosed Information, Integrated Circuits and Plant Variety Law’ (Order 81, 26 April 2004) CPA/ORD/26 April 2004/81.

Reports Chilcot (Sir) J. et al., Report of the Iraq Inquiry (London: Cabinet Office 2016). Crawford N.C., ‘United States Budgetary Costs of the Post-9/11 Wars through FY2019: $5.9 Trillion Spent or Obligated’ (Watson Institute for International and Public Affairs, 14 November 2018). Great Britain Colonial Office, Special Report by His Majesty’s Government in the United Kingdom of Great Britain and Northern Ireland to the Council of the League of Nations on the Progress of Iraq during the Period 1920–1931 (London: His Majesty’s Stationery Office 1931). Guarasci B., ‘Environmental Rehabilitation and Global Profiteering in Wartime Iraq’ (Watson Institute for International and Public Affairs, 23 April 2017). Special Inspector General for Iraq Reconstruction, ‘Hard Lessons: The Iraq Reconstruction Experience’ (Washington: Government Printing Office 2009). United States Department of State, ‘Report of the Commission on Extraterritoriality in China, Peking, September 16, 1926’ (Washington: Government Printing Press 1926).



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Diplomatic Correspondence ‘Japanese Treaty Revision: Provisions for Abolition of Consular Jurisdiction’, 19 June 1889, FO 410/27. ‘Lettre du Ministre de Chine a Bruxelles au Ministre Des Affaires Étrangères de Belgique’, 16 April 1926. United States Department of State, Papers Relating to the Foreign Relations of the United States (FRUS), 1919: The Paris Peace Conference (Washington: Government Printing Office 1943).

INDEX

Introductory Note References such as ‘178–79’ indicate (not necessarily continuous) discussion of a topic across a range of pages. References to footnotes are in italics. Wherever possible in the case of topics with many references, these have either been divided into sub-topics or only the most significant discussions of the topic are listed. Because the entire work is about ‘capitalism’ and ‘civilisation’, the use of these terms (and certain others which occur constantly throughout the book) as an entry point has been minimised. Information will be found under the corresponding detailed topics. A Mandates, 88, 97–101, 144 abolition of extraterritoriality, 78, 80–1, 83, 85, 89, 147 abolition of slavery, 63–6, 64, 66, 119, 126 accumulation, 23, 27, 176 capitalist, 20, 26, 32, 54, 58, 86, 98, 103, 175 global, 32, 213 primitive, 23–30, 26, 63 administrative structures, 90, 95, 160, 180 administrators, 108, 155, 183 colonial, 58, 126 aesthetics, 32, 198, 204, 207, 209 agreements mandate, 99, 105, 119, 150, 158 trusteeship, 131, 145 Althusser, Louis, 3, 11–13, 11–13, 12–13, 61 Amin, Samir, 3, 29–30, 29–30, 30 Ammoun, Judge, 8, 8 Amupanda, Job Shipululo, 163 Anghie, Antony, 46, 51, 85, 88, 95, 100–1, 105, 107, 113, 218 Anglo-Iraqi Treaty, 100, 124

Angola, 136, 162, 206 annexation, 91–2, 101, 102, 136–7, 137, 138, 141, 173 annexationism, 91, 105, 136, 160 anthropology, 49, 108, 152 anti-capitalist struggles, 28, 109 anti-imperialism, 77, 84, 92, 95, 100, 109, 133 apartheid, 136–9, 142, 148, 150–3, 156–7, 160–1, 164–5 arbitration, 58–9, 193–4, 194, 196, 197 argumentative patterns, 14–15, 41–2, 84–5, 89, 127–8, 130–1, 167–8, 171–2, 209–11 argumentative structures, 41–2, 140, 145, 153, 155, 206, 210, 215–16 armed attacks, 188, 190, 190, 198–200, 200, 203, 209 arms traffic, 101, 106 Article 22, 96–106, 104, 106, 109, 119–24, 126, 142, 144 asymmetrical development, 45 attacks, armed, 188, 190, 190, 198–200, 200, 203, 209 Australia, 17, 68, 96, 101, 132, 136







Austria, 117 authoritarian states, 121, 125 authoritarianism, 126, 211 authority, 182, 187, 193, 197, 199 of international laws, 53, 205 sites of, 81–2 autonomy, 12, 93, 142, 208 B Mandates, 97, 101, 118, 144 Ba’ath Party, 179, 186 Bachelard, Gaston, 10–11, 11 backwardness, 68, 83, 104, 113, 122–3, 141, 144 Balkans, 49, 73–5, 125 barbarian sphere, 51, 73 barbarity, 58 relative, 125–6 Becker Lorca, Arnulf, 47, 84 Belgium, 80–1, 81, 102 belligerent occupation, 168–9, 174 Bentwich, Norman, 92, 93 Berlin Conference, 60, 196 Congress and Treaty, 74 Berman, Nathaniel, 33, 99, 189 best practices, 4, 107 Bethlehem, Daniel, 190, 198 bias, 18, 38, 79, 215–16 biological continuity, 73 biological racism, 165, 199 biology, 41, 69, 73, 109, 126, 128, 131, 209, 213–15 logic of, 2 see logic, of biology. black labour, 150, 153 black Namibians, 142, 151, 154, 157, 161 Blumenbach, Johann, 49 Bluntschli, J.K., 44, 49, 53, 65–7, 67, 69, 70–1, 72, 74, 85 Bolsheviks, 92–3 Boukalas, Christos, 176, 176 Brazil, 19, 145 Bremer, Paul, 180, 180, 183, 185 British officials, 90, 122–4, 123 Brown, Wendy, 200 Bruwer, Johannes Petrus van Schalkwyk, 152–3, 153 Bugge-Wicksell, Anna, 104

bureaucratisation, 45, 62 Bush, George W., 167, 186 C Mandates, 97, 101, 110, 136, 144 Calvo, Carlos, 52, 58, 69, 192 Cambodia, 190 Cameroons, 115, 134 Canada, 27, 157, 162, 197 cannibalism, 64, 68 capacity building, 207 Capers, I. Bennett, 9–10 capital, 3, 12, 21, 24–5, 25, 26–8, 29, 62–3, 115–16, 154, 176, 180–1 foreign, 138, 163 internal logic of, 25, 28 capitalism, 4, 6, 19–20, 24–5, 27–30, 29, 31, 32–5, 40–2, 62–3, 115–19, 195–6, 212–13, 219–20 emergence, 31, 64 historicity, 23–4 racial, 66, 130, 140, 149–58, 162–5, 216, 218 settler, 27–8 capitalist accumulation, 20, 26, 32, 54, 58, 86, 98, 103, 175 capitalist development, 3–4, 16, 116, 118–20, 212 capitalist expansion, 18, 27–9, 84 capitalist exploitation, 25, 117, 152, 219 capitalist mode of production, 3, 19–24, 26–7, 58–60, 63, 86, 91, 196–7 reproduction, 3, 54, 58–60, 63, 197 capitalist modernity, 2, 19, 55–6, 68, 78–81, 83, 87 and logic of improvement, 55–67 capitalist production, 24, 26, 31–2, 82 capitalist relations of production, 6, 12, 16, 25, 28, 44, 60, 63, 196, 197–8 capitalist state, 11, 17, 43, 63, 90, 96, 127, 172, 213–14 modern, 57, 111, 212 capitalist transformation, 2, 28, 41, 45, 84, 110, 142, 180 centralised state, 29, 62–3, 79 Chen, Li, 47 children, 72, 108, 116, 117, 201 Chimni, B.S., 7, 26, 34, 36, 38

 China, 46–7, 50–1, 75, 75, 77, 77–8, 80–2, 81–2, 94, 94 Christianity, 29, 56, 113 Christians, 30, 57 civil liberties, 60, 186 civil servants, 42, 133 civilisation, 4–5, 14–16, 39–43, 51–60, 52, 54, 56–7, 59, 66–7, 73–8, 81–7, 127–8, 148–50, 167–9, 209–11 to emancipation, 109–20 institutionalisation in Interwar Period, 88–128 as international legal institution, 140–5 language of, 82–3, 148 sacred trust of, 99 see sacred trust of civilisation stakes, 73–87 standard of, 2, 4–6, 14–15, 39–40, 43, 102–3, 108–9, 124–5, 127–8, 153–4, 166, 171, 210–11 civilisational oscillations, 54–73 civilised nations, 8, 53, 69, 82, 167 family of, 50, 56, 70, 213 civilised sphere, 51 civilised state, 45, 52, 57, 62, 64–5, 67–8, 71 civilised status, 53, 56, 58–65, 68–9, 102, 108 civilising mission, 64, 68, 76, 145, 147, 150, 157 arguments for twenty-first century missions, 167–211 continuation by other means, 96–103 classification, 48–50, 52, 98, 99, 144 CLS 35 see critical legal studies. Coalition Provisional Authority (CPA), 107, 173, 177–84, 179–82, 185–7, 185–7, 186 codification, 77–80, 107, 111, 111 coercion, 62, 98, 208 Cold War, 130, 137, 175, 177, 184, 188 colonial administration, 104–7, 117, 156, 184 colonial administrators, 58, 126 colonial expansion, 52, 82, 116 colonial powers, 94, 99, 132–3, 138



colonialism, 9, 17, 26, 26, 49, 88, 100–1 modern, 26 settler, 17, 27–8, 70 colonies, 26, 31, 92, 96, 107, 119, 132 settler, 28, 28, 197 colonisation, 18, 52, 99, 194 direct, 72 colonised peoples, 94, 129, 133, 137, 154, 189, 213 commerce, 25, 60, 70, 80, 111 private, 54 commercial activities, 3, 60, 86, 112, 119 Committee on South West Africa, 146, 148 commodities, 21–3, 32, 115–16 special, 22, 25 commodity form, 25, 41, 62, 219 commodity owners, 25 communism, 36, 92, 95, 133, 138, 155 comparison, 46, 50, 50, 132–3, 155 compulsory labour, 66, 118–20, 119, 154 conditional inclusion, 2, 16, 178, 220 Congo, 53, 62, 155 Congo Free State, 53, 64 Congress and Treaty of Berlin, 74 Congress of Vienna, 63 conquest, 26, 30, 46, 95 constant oscillation, 35, 130, 178, 215 consular tribunals, 76, 78 contingent sovereignty, 207 continuity, 91, 164, 172, 187 biological, 73 contracts, 58, 60, 103, 181–2 employment, 22, 151 contradictions, 3, 35, 37, 40–1, 43, 118, 154, 214–16, 219–20 on a warming planet, 212–20 and Iraq question, 120–7 structured, 89 control, 42, 119, 121–2, 125–7, 191, 193–4, 199–200, 208 indirect, 100 international, 126, 126 territorial, 103, 205 co-operation, 81, 108, 148, 187, 206, 218





Coulthard, Glen S., 27–8, 27–8 counterterrorism, 176, 190, 208–9, 219 Counter-Terrorism Committee (CTC), 208 courts 81 see individual court names. CPA 173 see Coalition Provisional Authority. Craven, Matthew, 60, 64, 65, 196 critical engagements, 19, 29, 34, 38, 98 critical international law, 37–8, 212, 214, 217 critical legal histories, 5, 6 critical legal studies (CLS), 35, 39 critical race theory, 35 Crusades, 30 CTC (Counter-Terrorism Committee), 208 cultural difference, 4, 29, 45, 85, 113 culturalist exclusion, 16 culturalist logic, 29, 55

discrimination, 135, 156 see also non-discrimination. racial, 135–7, 139, 155–6, 158 dispossession, 20–1, 24, 27–8, 87, 130, 139, 150 distribution of rights and duties, 15, 33, 44, 67, 98, 168, 178, 192, 197, 212 divergence, 35, 83, 159, 181 divine authority, 47 Dobbs, Sir Henry, 100 domestic working classes, 21, 50, 73 domination, 6, 20, 26, 29, 33, 68, 120, 126, 131, 196 economic, 63, 67 political, 2, 64, 90 drones, 169, 218 drugs, war on, 218, 218 duties, 33–4, 42, 44–5, 48, 54–6, 74, 86–7, 158–9, 192–3, 212

Dannevig, Valentine, 104 de-Ba’athification, 179–80 decolonisation, 129–31, 133–4, 134, 138, 155, 161, 165, 204–6 deconstruction, 35, 37, 129, 205, 217 and Marxism, 35–42 Deeks, Ashley, 189–90, 189–90, 190, 199–200, 199, 201, 201, 203–7, 203–7, 206–7 defensive force, 168, 190, 205, 208, 210 degradation, environmental, 18, 101 democracy, 114, 177, 183–7, 186 low intensity, 177, 186 democratisation, 177, 183 of the sacred trust, 145–9 Derrida, Jacques, 39–40 Desautels-Stein, Justin, 5–6, 44, 216 Descamps, Edouard, 53, 64 development, 47, 49, 51–2, 99, 109, 112, 119–20, 135, 143, 145, 151–3 capitalist, 3–4, 16, 116, 212 combined, 5, 45 separate, 151–3 unequal, 41, 219 Development Fund for Iraq (DFI), 107 differentiation, 84, 98, 156–7, 168 racial, 31

Eagleton, Terry, 39 Eastern Europe, 3, 92, 180 economic domination, 63, 67 economic exploitation, 2, 161, 217 economic interests, 98, 154 economic management, 107, 121, 184 economic reforms, 42, 120, 165, 169, 183 economies, mixed, 140, 163 economy, 31, 59, 61, 121, 139, 151, 155 free-market, 179, 181 global, 110, 170 market, 65, 112, 179 white, 153, 153 education, 55, 85, 106, 108, 112, 112, 114–15, 121, 182, 216 effective control, 113, 194–7 Egypt, 34, 75, 94, 142 elections, 135, 185 free, 162 elites, 60, 93, 100, 213 legal, 79, 81–6, 213 emancipation, 66, 72, 90, 103, 119, 124, 127 civilisation to, 109–20 Iraq, 109–10, 114, 122–4 employment, 117, 151

 agricultural, 117 contracts, 22, 151 environmental degradation, 18, 101 epistemological relativism, 13 equal inclusion, 2, 54, 85, 176–7 equal rights, 14–15, 34, 36, 39, 72, 76, 86, 90, 113, 115, 131 equal sovereignty, 171, 175, 177 equality, 74–5, 94, 220 formal, 208 gender, 86 juridical, 55, 74–5, 87, 192 legal, 67–8, 75 sovereign, 74, 81 Estes, Nick, 27 Ethiopia, 65, 126, 130, 148–9, 150–4, 155, 157–8, 157, 157–8, 161, 164 ethnology, 46, 48–9, 49 Eurocentrism, 26, 29–30, 29–30, 30, 86, 98, 218 Europe, 45–8, 53, 57–8, 62–3, 68, 69, 75, 76, 126 Eastern, 3, 92, 180 exclusion, 2, 6, 68, 74, 86, 139 culturalist, 16 expansion, 3–4, 26, 28, 30, 57, 121, 125, 133, 175 capitalist, 18, 27–9, 84 colonial/imperial, 52, 82, 116 limitless, 3, 20 expansionism, 26, 188–9 exploitation, 21, 23, 31, 33, 67, 126, 128, 150, 154 capitalist, 25, 117, 152, 219 class, 33, 161 economic, 2, 161, 217 labour, 12, 137, 139, 148 expropriation, 27, 140 extraterritoriality, 43, 46, 54, 56, 58–9, 73, 111–12, 191, 209 abolition, 78, 80–1, 83, 85, 89, 147 between improvement and biology, 73–87 as temporary arrangement, 78 factual assessments, 48, 81, 192–3 failed states, 1, 199, 204 Faisal, King, 100



femininity, 5, 201 feminism, 5, 9–10, 32, 32, 35, 71 Field, David Dudley, 64, 64 Fiore, Pasquale, 52–3, 52–3, 67 First Pan-African Congress, 95 First World War, 65, 91, 116 force defensive, 168, 190, 205, 208, 210 use of, 27, 169, 184, 188–90, 189, 209 forced labour, 119 foreign investment, 135, 181 foreign investors, 140, 181 formal empires, 160 beginning of the end, 91–6 end and international law, 131–8 formalisation, 60, 136 Forster, Judge, 158 France, 1, 66, 91, 99, 132, 146 free labour, 65, 91, 119–20 free labourers, 20 free trade, 34, 60, 91, 127, 170, 196 freedom, 30, 40, 60, 111, 133, 161, 171 argumentative, 40, 215 free-market economy, 179, 181 gender, 20, 30, 32, 32–3, 36, 39, 43, 55, 197, 202 equality, 86 gendered personifications, 71, 201 General Assembly, 134, 135, 141–8, 156, 160–2, 184 Germany, 8, 24, 91, 162 global accumulation, 32, 213 Global South, 3, 70, 131, 171, 176, 189, 204 global value chains, 2, 176 good faith, 126, 199 goods, public, 205 governance imperial, 50 international, 106, 128 practices, 89 Greece, 73–4, 90 Gross, Ernst, 152–3, 155 Grovogui, Siba N’Zatioula, 93, 160 guarantors, 57, 69, 82, 171, 195–8 guardianship, 55, 72





Haiti, 31–2, 66, 218 Hales, James C., 126 Hammoudi, Ali, 34, 37, 37, 89, 92, 95, 98, 98, 100, 216 health, 114–15, 121, 182 expenditures, 115 public, 106 Heathcote, Gina, 169, 200 hegemony, 18–19, 131, 148, 204 Heinrich, Michael, 63 hierarchical logic, 97, 199 hierarchy, 4, 45, 51, 65, 86, 98–9, 102, 202, 206 racial, 10, 141, 202 historical jurisprudence, 48 historical materialism, 13, 29 homogenisation, 4, 30, 35, 41, 45, 84, 168, 215 Hornung, Joseph M., 52, 68 Huber, Max, 193–7, 194–5 human rights, 60, 131, 134, 135, 137, 138–40, 157, 161, 162, 163–5, 170 hybridity, 51, 88, 100 hygiene, 112, 115, 118 hyper-masculinity, 71–2, 201 ICJ 8 see International Court of Justice. ideologies, 5, 11–12, 22–3, 30, 34, 61, 217 illegality, 33, 162, 174 ILO (International Labour Organization), 108, 109, 114, 117–18 imaginaries, 4, 10, 68, 70, 75, 170, 197, 202 immunities, 14, 74 immutable differences, 2, 4, 20, 29, 43, 97, 101, 192, 206, 210 imperial powers, 89, 94, 96, 98, 125, 132, 197, 206 imperialism, 2–3, 16, 19–20, 45–6, 49, 84–7, 93, 95, 105, 107, 138–9, 217–19, 217–19, 218 overt, 91, 133 Western, 29, 45, 69, 120 improvement, 41, 78–80, 96–7, 109, 124, 126, 144, 209, 213, 215

logic of, 43, 54–6, 58–60, 72–3, 77–81, 83–5, 96–7, 107–9, 113–14, 124–8, 178–9, 208–10, 212–14 inclusion conditional, 2, 16, 178, 220 equal, 2, 54, 85, 176–7 incompetence, 12–13, 123, 126, 197, 204 independence, 56–7, 62, 75–6, 99–101, 124–5, 132–3, 143–4, 163, 165 complete, 95, 145 Iraq, 97, 102, 126 Namibia, 140, 160, 161–2, 162 independent statehood, 110, 164 indeterminacy, 16, 35–42, 83, 214–15, 219–20 structured, 215 textual, 37–8 unstructured, 6 indexes, 4–5, 107, 109 failed states, 205 state fragility, 203–4, 204 India, 4, 55, 70, 94, 134–5, 142, 145 Indians in South Africa, 134, 137 indigenous lands, 27, 161 indigenous legal systems, 17 indigenous peoples, 27–8, 28, 53, 73, 87, 198 individual rights, 61, 112, 157, 195 individualisation, 25, 60, 112, 155 individualism, 45, 60, 86, 195–6 inequality, 4, 6, 45, 61, 88, 116, 195 legal, 148 permanent, 90 inferiority, 4–5, 43, 71–2, 157, 167 infrastructure, 1, 4, 78, 108, 112, 119–22, 181–2 Institut de droit international, 44, 53 institutional life, 43, 127 institutionalisation of civilisation, 88–128 institutions, 58–60, 78–9, 81–7, 97, 174, 178 international, 88, 106–7 financial, 175, 178, 178 political, 34, 86 integrity, territorial, 111, 191, 207

 intellectuals, 41, 49, 216 interests, 113, 116, 149, 151–2, 188, 191–3, 196, 198 economic, 98, 154 legal, 149, 159, 164 international community, 40, 71, 143, 156, 185, 191, 209 international control, 126, 126 International Court of Justice (ICJ), 8, 14, 18, 43, 130, 138–44, 146–50, 156–61, 164–5 international financial institutions, 175, 178, 178 international governance, 106, 128 international humanitarian law, 169, 187 international institutions, 88, 106–7 International Labour Organization 108 see ILO. international law see also Introductory Note. contemporary, 131, 172, 204 critical, 37–8, 212, 214 and end of formal empires, 131–8 nineteenth-century, 1, 46–54 texts, 8, 11, 19 international lawyers, 15–16, 36, 38, 40–1, 48–53, 71–4, 109, 167–8, 216 conservative, 69, 218 contemporary, 168, 189, 196, 198–9, 217 Japanese, 50, 81 non-Western, 43, 73, 84, 87 professional, 53–4, 62 semi-peripheral, 83, 213 Western, 68, 72, 86, 148, 213 international legal argument/ argumentation, 15–16, 19, 33–4, 38, 40, 45–6, 54, 67, 89–118, 127–8 international legal discourse, 29, 192, 203 and Iraq question, 120–7 international legal order, 43, 45, 74, 81, 127, 133, 202, 204–5 hierarchical, 72



international legal personality, 2, 51, 65, 144 international legal theory, 44, 75, 114, 214 international order, 19, 128, 207, 216 international peace, 138, 171 international supervision, 89–90, 105, 110 international territorial administration, 98, 165 international trusteeship, 136, 141 international tutelage, 92, 134 internationalism, 91 interpellation, 11, 61, 170 intervention, 47, 59, 59, 75, 79, 193, 199 interventionism, 91, 218 interwar period, 84, 88–128, 153, 159, 210 investment foreign, 135, 181 law, 180–1, 183 investors, foreign, 140, 181 Iraq, 90, 95, 99–101, 107–8, 110, 120–7, 167–8, 171–4, 176–87, 205 emancipation, 109–10, 114, 122–4 independence, 97, 102, 126 Mandate, 89, 109–20 occupation, 107, 172, 176, 210 question and international legal discourse, 120–7 reconstruction, 173, 178, 180–2, 182 society, 171, 179, 181, 183 Iraqi Governing Council, 107, 181, 184, 186 Iraqis, 95, 100, 122–3, 171, 173, 177, 181, 183–4, 186–7 Islam, 30, 56, 99 Island of Palmas case, 193–7, 193–5 James, C.I.R., 66 Japan, 50–1, 56, 57, 58, 59, 75, 78–9, 81–2, 82 South Pacific Mandate, 101 Jessup, Philip C., 197, 197 Jouannet, Emmanuelle, 89, 114, 116, 117 judicialisation, 59, 111, 138 juridical equality, 55, 74–5, 87, 192





juridical practices, 59, 68, 83 juridical relations, 47, 66, 72, 74–5 juridical techniques, 58–9, 83 jurisdiction, 52, 64, 73, 77, 79, 83–4, 200 extraterritorial, 46, 76, 80, 82, 191 see also extraterritoriality. Kayaoğlu, Turan, 59, 75, 78 Keinan, Guy, 191, 198 Kendall, Sara, 207 Kennedy, David, 38, 88 Kentarō, Kaneko, 58 Khan, President Zafrulla, 138 Knox, Robert, 31, 34, 36, 66–7, 70, 93, 150, 201, 217 Koskenniemi, Μartti, 7, 34–5, 35, 38, 54, 83, 140, 170, 171, 178, 210, 215, 216 Krylov, Judge, 8, 145 Kurds, 125, 202 labour, 21–2, 26–7, 31, 66, 106, 114–15, 118, 153, 161 black, 150, 153 compulsory, 66, 118–20, 119, 154 exploitation, 12, 137, 139, 148 forced, 119 free, 65, 91, 119–20 militancy, 90, 118 necessary, 21 process, 22, 115–16 unfree, 65, 120 unpaid, 21–2 wage, 24, 28, 62, 130, 154 labourers, 21, 23, 26–8, 32, 115 agricultural, 24 free, 24 labour-power, 21–3, 25, 116 lands, 3, 24–5, 27, 27, 58–9, 69, 153, 173, 196–8 indigenous, 27, 161 language, 40–1, 47, 74–5, 82–3, 85, 125–6, 129–31, 161, 164–5 of civilisation, 82–3, 148 Lansing, Robert, 71, 71 law of nations, 46, 193 lawfulness, 52, 173, 189, 208 lawlessness, 53, 198, 207

Lawrence, Thomas J., 51, 56 laws of occupation, 172–4, 177, 182, 204–5, 210 lawyers, 14–15, 18, 40–1, 67, 69, 73, 75, 84–5, 216–17 non-Western, 80, 148 semi-peripheral, 47, 58, 77–80, 209 Western, 55, 83, 209 League of Nations, 43, 66, 103, 121, 127, 135, 142, 146, 150, 213 Assembly, 104, 107 Council, 103, 120, 159 Covenant, 92, 96, 97, 99, 101, 106–7, 118–19, 142, 156 Article 22, 96–106, 104, 106, 109, 119–24, 126, 142, 144 PMC (Permanent Mandates Commission), 14, 89–91, 97, 102–15, 117–22, 125–7, 136, 141, 146–7, 153, 156 legal arguments/argumentation, 15–16, 136, 140, 145, 148, 165–6, 169–70, 210 legal elites, 79, 81–6, 213 legal equality, 67–8, 75 legal framework, 23, 79, 162, 188 legal history, 6, 74, 194 legal interests, 149, 159, 164 legal obligations, 48, 109, 141, 144, 200 legal order, 5, 16, 19, 188 international 43 see international legal order. legal personality, 74, 134, 144 international, 2, 51, 65, 144 legal reforms, 54, 79–80, 85, 111–12, 135, 188 legal rights, 36, 48, 136, 152, 158, 195 legal status, 142, 155, 167, 220 legal struggles, 35, 42, 72–3, 84–5, 102, 134, 147, 167, 209, 216 legal subjectivity, 110, 154 legal systems, 16–17, 25, 70, 74–8, 85, 112–13 indigenous, 17 legal theory, 9, 12, 16, 62, 214, 219 critical, 10 international, 44, 75, 114, 214 legalisation, 45, 61, 86, 111, 173

 legalism, 89, 105, 150 legality, 3, 16–17, 19, 79, 112, 172, 173–4, 179 legitimate violence, 62, 111 Lenin, 3, 93 Leopold, King, 53 liberalism, 34–5, 55 Liberia, 130, 148–50, 150–4, 155, 157–8, 157–8, 157–8, 161, 164–5 liberties, 60, 132, 186 civil, 60, 186 liquor traffic, 101 literary theory, 9, 11 local populations, 109, 114, 118, 145, 184 logic of biology, 44–5, 67–73, 81–2, 85–6, 102–3, 122–6, 144–5, 154–5, 198, 202–3, 205–6 and occupation of Iraq, 172–87 hierarchical, 97, 199 of improvement, 43, 54–5, 58–60, 72–3, 77–81, 83–5, 96–7, 107–9, 113–14, 124–8, 178–9, 208–10, 212–14 and capitalist modernity, 55–67 and occupation of Iraq, 172–87 Lorimer, James, 48, 51, 51, 53, 56, 65, 67, 69, 72, 74, 192 Lugard, Lord, 97, 111, 122, 122, 191, 191 Luxemburg, Rosa, 3 McClintock, Anne, 32 Macron, President Emmanuel, 1, 167 Maine, Henry, 53, 55, 70 mandated territories, 98–9, 102–3, 106–8, 111, 123, 125–6, 126, 156–7, 160 mandates, 91–2, 95, 95–107, 97–8, 100, 102, 104, 106–7, 110–14, 110–14, 110, 112, 114, 118–20, 124–6, 125, 130, 132, 136, 139–51, 150, 152, 155–61, 155, 159, 164 agreements, 99, 105, 118, 150, 158 categories, 99, 103 Middle East, 88, 99–100



Nauru, 104, 119 Palestine, 96, 104 Rwanda-Urundi, 119 Samoa, 108 South Pacific, 101 system, 88, 89–93, 95–100, 102–7, 109, 113–15, 117–18, 123–4, 127–8, 158–9 Tanganyika, 104, 119 treaties, 96, 103, 105 Mandates Commission, 109 see PMC mandatories, 105, 106, 136, 141, 153 mandatory powers, 96–8, 101–2, 102, 103–4, 106, 108–9, 126–7, 145, 147 maps, 18, 73–5, 166, 168, 194–6 market economy, 65, 112, 179 markets, 22–5, 63, 118, 175, 200 Marks, Susan, 20, 21, 93, 140, 177, 218 Martens, Friedrich F., 76 Marx, Karl, 1, 3, 12, 12, 21, 21–6, 25–6, 58, 115, 212, 214 Marxism, 11, 20, 27, 29, 34, 39 and deconstruction, 35–42 Marxists, 12, 24, 28–32, 36–7, 214, 217 masculinity, 5, 67, 201 mass movements, 28, 46 mass politics, 37, 94 material conditions, 28, 155, 161, 168, 203, 216 material relations, 20, 33, 175, 203 material relationships, 30 material structures, 35–42 materialism, historical, 13, 29 materialist method, 7–19 Matsuda, Mari, 35–6, 35 Mégret, Frédéric, 61, 168, 201, 201 metaphors, 10, 20, 30, 33, 64, 70–2, 104 methodology, 7, 9, 49, 204 metrics, 4, 205 Miéville, China, 14–15, 14, 34, 37, 39, 62, 85, 85, 97, 97, 218 militarisation, 176, 206 minorities, 125–6, 130, 133, 152–3, 158, 161 religious, 112, 126 misogyny, 5, 46





mission, civilising 52 see civilising mission. missionaries, 158–9 modern state, 48, 62, 94, 112, 121, 196 modernity, 18, 26, 29–30, 98, 99, 123, 212 capitalist 2 see capitalist modernity. modes of production, 3, 17, 20, 24–6 capitalist, 3, 19–24, 26–7, 58–60, 63, 86, 91, 196–7 contradictory, 40, 42 monetary policy, 180, 182 money, 22–4, 26, 63, 108, 121, 183, 194, 196 monopolies, 63, 79, 83, 110 state, 111–12 Montevideo Convention, 71 moral truths, 48, 86 Muslims, 30, 97 mystification, 15, 29 Namibia, 129, 138–40, 144, 160–5see also South West Africa. constitution, 140, 163 independence, 140, 160, 162 legal path to, 158–64 people of 129 see Namibians. Namibians, 129, 137, 144–5, 148–9, 153–4, 161–2 black, 142, 151, 154, 157, 161 Natarajan, Usha, 90, 100, 127, 127, 168, 174 national security, 169, 189, 198 nationalism, 91–2, 95, 100, 198 nationality, 79, 126 nation-building, 127, 175 nation-states, 46, 119, 129 native populations, 65, 136, 151, 154, 194 natives, 97, 101, 151, 151, 153–4, 159, 194, 197 natural resources, 26, 58, 155, 181 Nauru, 38, 101, 104, 119 necessary labour, 21 Neocleous, Mark, 26 neoliberal reconstruction, 175, 178 neoliberal state, 164, 171, 179

neoliberalisation, 216 neoliberalism, 20, 43, 163, 164, 172, 175–6, 175–6, 176, 198, 200, 220 New Guinea, 101 New International Economic Order 135 see NIEO. New Zealand, 96, 108, 157, 197 NIEO (New International Economic Order), 135 nineteenth-century, 30, 42, 66, 71, 73, 83–4, 113, 128, 199 international law, 46–54 nobility, 184, 197 Nolte, Georg, 193 non-Christian states, 57 non-discrimination 148, 156–7, 165 see also discrimination non-interference, 132, 135 non-state actors, 168, 171, 188, 190, 192–3, 200, 202, 207 non-Western international lawyers, 43, 73, 84, 87 non-Western lawyers, 80, 148 non-Western political communities, 45–7, 68, 71, 85, 89, 213 non-Western polities, 45, 69–70 non-Western societies, 53–4, 102, 104 non-Western states, 57, 72, 113, 127 Nys, Ernest, 53, 57, 62, 64, 74 Obama administration, 169, 219 obligations, 141, 143–4, 160, 164, 172–3, 179, 196 legal, 48, 109, 141, 144, 200 Obregón, Liliana, 52, 66, 73 occupation, 162, 168, 171, 204–5 belligerent, 168–9, 174 formal, 180, 187 of Iraq, 107, 172–87, 210 laws of, 172–4, 177, 182, 204–5, 210 O’Donoghue, Aoife, 71 oil, 98, 99, 173, 177, 182 omissions, 9, 13 ontological realism, 13 open door policy, 101, 110 openness, 38, 203, 215, 219 textual, 5 oppression, 69, 72, 86, 134–6, 153, 203

 gendered, 20 racial, 128, 130 oral proceedings, 147, 150, 155, 157 Orford, Anne, 7–11, 15, 59, 184, 194 oscillations, 40, 42, 45, 48, 85–6, 140, 213, 215 civilisational, 54–72 constant, 35, 130, 178, 215 Ottoman Empire, 56, 59, 73, 75, 75, 79, 91–2 Pacific, 92, 93, 101 Pahuja, Sundhya, 129, 133, 133, 168 Palestine, 93, 99, 117, 205 Mandate, 96, 104 Palmas 193 see Island of Palmas case. Parfitt, Rose, 6, 11, 19, 38, 38, 51, 61, 66, 71, 88, 100, 126, 195, 196 Pashukanian approaches, 25, 41, 219 patriarchy, 32, 43, 86 peace, 65, 138, 155, 164, 180, 184 international, 138, 171 maintenance of, 112, 153 public, 92 peacekeepers, 184–5 Pedersen, Susan, 88, 92, 102, 105, 109, 124, 136 Penha García, Count de, 112, 113 Permanent Court of Arbitration, 58 Permanent Court of International Justice, 77, 81, 104, 150, 159, 193 Permanent Mandates Commission 14 see PMC. Peters, Anne, 34, 65, 169, 218 Pitkin, W.H., 79 Pitts, Jennifer, 46, 46 PMC (Permanent Mandates Commission), 89–91, 97, 102–15, 102–15, 104–6, 113, 117–22, 117–22, 118, 125–7, 136, 146–7 Polanyi, Karl, 88, 116, 117 police, 61, 78, 112, 121, 207 Police Zone, 151, 154 political communities, 2, 14–16, 34–5, 48, 50, 54–5, 61–2, 71–2, 89–90 non-Western, 45, 68, 71, 85, 89, 213



non-white, 2 political domination, 2, 64, 90 political reforms, 148, 186 politics, 32, 33–5, 34–6, 49, 49, 51, 82, 88, 163, 172, 205–6 international, 135, 137 mass, 37, 94 of procedure, 145–9 revolutionary, 26, 155 Portugal, 90, 206 positivism, 18, 46, 93, 158–9, 204 post-colonial states, 4, 134, 141, 149, 156, 160, 162–4 post-colonialism, 36 post-structuralism, 33, 36, 39 poverty, 20, 116 powers colonial, 94, 99, 132–3, 138 imperial, 89, 94, 96, 98, 125, 132, 197, 206 precedents, 42, 107, 132, 147, 180, 190, 196 Prichard, James, 49 primitive accumulation, 23–30, 26, 63 private property, 27, 45, 54, 86, 140 privatisations, 181–2 privileges, 14, 15, 74, 79, 90, 123, 161, 165, 200, 212 procedure, politics of, 145–9 production, 3, 12–13, 19–21, 23–8, 31, 44, 58–60, 63–6, 120, 194–8, 215 capitalist, 24, 26, 31–2, 82 modes of 3 see modes of production. profitability, 31, 162, 176 profits, 22, 27, 31, 66, 180–1 Program Management Office (PMO), 182 progressivist outlook, 4, 99, 102 proletarianisation, 28 property, 22, 31, 56, 59–60, 66, 70 private, 27, 45, 54, 86, 140 rights, 59–60, 112, 140, 163, 165 proportionality test, 190 prosperity, 28–30, 57, 138, 181 protectorates, 72, 92, 110 public order, maintenance of, 101, 114, 118





public peace, 92 public works, 119, 119, 182 race, 10, 20, 30–3, 31–2, 36, 67–84, 139, 150, 153–4, 201 superior, 67, 114 white, 29, 69, 164 racial capitalism, 66, 130, 140, 149–58, 162–5, 216, 218 racial destiny, 69 racial difference, 31, 67 racial discrimination, 135–7, 139, 155–6, 158 racial hierarchies, 10, 141, 202 racial oppression, 128, 130 racial segregation, 130, 150, 152, 154 racialisation, 5, 31, 70, 83, 148, 201, 202–3 racialised peoples, 36, 69, 134–5, 167, 196 racialized thinking, 10 racism, 10, 30–1, 33–4, 43, 46, 201, 218 biological, 165, 199 genocidal, 126 overt, 135 scientific, 49 railways, 119, 121, 124 Rajagopal, Balakrishnan, 88, 106 Rasulov, Akbar, 40, 216, 218 rationalisation, 5, 15, 58, 95, 201 rationality, 18, 58, 61, 71 reasonable states, 200 reasonableness, 201 rebus sic standibus, 80 reconstruction, 182–3, 210 of Iraq, 173, 178, 180–2, 182 neoliberal, 175, 178 reforms, 89, 130, 135, 154, 171, 174, 177, 179–80, 182–4 economic, 42, 120, 165, 169, 183 legal, 54, 79–80, 85, 111–12, 135, 188 political, 148, 186 reification, 18, 32, 39, 217, 219 Reinold, Theresa, 205, 205, 208 relations of production, capitalist, 6, 12, 16, 25, 28, 44, 60, 63, 196, 197–8 relativism, 14

religion 30, 48, 68, 98, 101 see also Christianity; Islam religious minorities, 112, 126 representative government, 173, 178 reproduction of the capitalist mode of production, 3, 54, 58–60, 63, 197 resistance, 6, 26–7, 46, 61, 89, 195 resources, 38, 123, 154, 180 extraction, 27 financial, 111 natural, 26, 58, 155, 181 responsibilities, 33, 151, 173, 178, 182, 191, 194, 200, 207 to protect, 59, 191, 218 revolutions, 37, 37, 66, 92, 94, 117, 217 rhetoric, 90–2, 100, 137, 144, 169, 171, 176–7 rights, 14, 17, 33–4, 60–1, 74, 131, 157–8, 159, 161, 165–6, 191, 191–2, 195–6, 195–7, 198, 212 distribution of, 15, 33, 44, 67, 98, 168, 178, 192, 197, 212 equal, 14–15, 34, 36, 39, 72, 76, 86, 90, 113, 115, 131 human, 60, 131, 134, 135, 137, 138–40, 157, 161, 162, 163–5, 170 individual, 61, 112, 157, 195 legal, 36, 48, 136, 152, 158, 195 property, 59–60, 112, 140, 163, 165 unequal, 70 and violence, 187–209 Rivier, Alphonse, 56 Rolin-Jaequemyns, Gustave, 50, 68, 68 ruling classes, 21, 213 Ruskola, Teemu, 76 Russia, 92–3, 201 sacred trust of civilisation, 99, 107, 109, 127, 130, 139–40, 142–3, 158–61, 164 democratisation, 145–9 and workings of racial capitalism, 149–58 Saddam Hussein, 172, 186 Said, Edward, 30 Saint-Domingue 62–6 see also Haiti

 savage sphere, 51 savagery, 64, 73, 83, 197 savages, 50, 52, 70, 164, 168, 201 Schlag, Pierre, 37, 74, 217, 219 Schmitt, Michael, 200 schools 76, 108, 115, 118, 121 see also education Second World War, 84, 88, 132, 133, 188 secularism, 47, 56 securitisation, 172 security, 79, 119, 138, 160, 171, 174, 176, 182, 186 security, national, 169, 189, 198 Security Council, 135, 138, 160–3, 172–3, 185, 188, 205, 209 Resolutions, 139, 160, 172–3, 179, 186, 207–8 segregation, racial, 130, 150, 152, 154 self-control, 71–2 self-defence, 188, 190–2, 198–200, 205, 210 armed, 111, 191 self-determination, 93–4, 99–100, 129, 131, 133, 161, 163, 165, 205 self-government, 61, 94, 113, 122–4, 132, 145, 154, 208 semi-civilised states/polities, 46, 51–2, 55, 59, 73–7, 191 semi-peripheral international lawyers, 83, 213 semi-peripheral lawyers, 47, 58, 77–80, 209 semi-peripheral states, 77, 213 semi-periphery, 79, 91 semi-sovereignty, 74 settler capitalism, 27–8 settler colonialism, 17, 27–8, 70 settler colonies, 28, 28, 197 settlers, 17, 27–8, 58 white, 153, 155, 161, 163 sexism, 5, 33–4, 171, 202, 211 sexuality, 30, 32–3, 36, 43, 50 Shahabuddin, Mohammad, 49, 82 Sharia law, 100 Siam, 34, 46, 59, 75, 75, 79, 83, 83 slave trade, 63, 66, 101, 118, 119 slavery, 31, 31, 64–6, 106, 111, 119



abolition, 63–6, 64, 66, 119, 126 persistence, 65, 66 racialised, 120 slaves, 44, 63, 65, 119 Smuts, Jan, 92, 136, 138 soap, 32 social forces, 111, 116 social relations, 20, 26, 59, 63, 111 social transformation, 67, 103, 108 socialism, 3, 17, 36, 63, 82, 91, 95 solidarity, 69, 134, 149 South Africa, 92, 96, 102, 128, 130, 135–52, 154–7, 160–5 Indians in, 134, 137 South Pacific Mandate, 101 South West Africa, 101–2, 128, 129–66, 136–9, 141–3, 146, 148, 150–4, 157–60 see also Namibia. 1950s advisory opinion, 140–5 international law and end of formal empires, 131–8 mandate, 102, 136, 141, 150 politics of procedure and democratisation of the sacred trust, 145–9 racial capitalism and sacred trust, 40, 149–58, 218 shifting grounds of international legal argumentation, 138–58 South West Africa Peoples’ Organisation 129 see SWAPO. sovereign equality, 74, 81 sovereign statehood, 124, 204, 205 sovereignty, 15, 17, 74, 85, 88, 92–3, 105, 107, 136, 174–5, 191–9, 207, 218–19 contingent, 207 equal, 171, 175, 177 as responsibility, 192–3, 218 Soviet Union 94–5, 133, 180, 204 see also Russia stability, 121, 131, 184 financial, 112, 218 standard of civilisation, 1–2, 4–6, 14–15, 39–40, 43, 102–3, 108–9, 124–5, 127–8, 153–4, 166, 171, 210–11 state fragility indexes, 203–4, 204





state monopoly, 111–12 state power, 45, 90, 125, 196 state responsibility, 59, 191, 207 statehood, 47, 54, 99, 103, 110, 114, 163, 165 independent, 110, 164 sovereign, 124, 204, 205 states authoritarian, 121, 125 capitalist 43 see capitalist state. centralised, 29, 62–3, 79 civilised, 45, 52, 57, 62, 64–5, 67–8, 71 failed, 1, 199, 204 independent, 53, 62, 90, 127, 134, 142, 144 modern, 48, 62, 94, 112, 121, 196 neoliberal, 164, 171, 179 post-colonial, 4, 134, 141, 149, 156, 160, 162–4 reasonable, 200 semi-civilised, 46, 51–2, 55, 59, 73–7, 191 semi-peripheral, 77, 213 territorial, 190–1, 199, 208 statistics, 43, 106–9, 114, 127 status, 52, 65, 66, 98, 116, 122, 125, 148, 153 civilised, 53, 56, 58–65, 68–9, 102, 108 legal, 142, 155, 167, 220 Steward, Alexander, 146, 146 Storr, Cait, 96, 101, 136 stratifications, 23, 30, 33, 35, 216 structural bias, 38, 215 structuralism, 5–6, 39 structures, administrative, 90, 95, 160, 180 subjectivity, 71 legal, 110, 154 psychological, 60 subjugation, 15, 19, 25, 41, 98, 125, 161, 178, 202 subordination, 100, 113, 150 superiority, 29–30, 32, 57, 213 supervision, 98, 103–4, 108, 124, 141, 143–7, 162, 164 international, 89–90, 105, 110 supervisory functions, 142–3, 147

supervisory organs, 125, 143–4, 146–7 surplus-labour, 21 surplus-value, 21–3, 28 SWAPO (South West Africa Peoples’ Organisation), 129, 161–4 symptomatic reading, 7–19 Syria, 99, 167 Tancredi, Antonello, 193 Tanganyika Mandate, 104, 119 Taylor, Owen, 37, 37 territorial control, 103, 205 territorial integrity, 111, 191, 207 territorial state, 190–1, 199, 208 territorialisation, 45, 111 territories, mandated, 98–9, 102–3, 106–8, 111, 123, 125–6, 126, 156–7, 160 terror, 53, 166, 169, 171, 176, 209, 218–19 war on, 42–3, 168–9, 172, 187, 198, 200, 203, 206–8, 210, 218–19 terrorism, 5, 167, 172, 176, 192, 205, 218 textual discipline, 9, 17, 20 textual indeterminacies, 35–42 textuality, 17–19, 33, 36–7 Third World Approaches to International Law (TWAIL), 19, 37, 134, 169, 216, 217 Third Worldism, 134, 135, 188 Togoland, 115 Tomlins, Christopher, 16, 214 transformation capitalist, 2, 28, 41, 45, 84, 110, 142, 180 social, 67, 103, 108 transition, 29, 46, 56, 64, 98, 123, 128 Transjordan, 99 Trapp, Kimberley, 190–1, 193, 198–200, 199–200, 207, 207 treaties, 7, 39, 52, 74, 80–1, 93, 100, 124 mandate, 96, 103, 105 unequal, 15, 42, 46, 72, 76, 80–1 tribunals, consular, 76, 78 Trump, Donald J., 167 trusteeship, 72, 92, 98, 101, 106, 141 agreements, 131, 145 international, 136, 141 system, 131–2, 132, 137, 141, 144 Trusteeship Council, 133, 141

 Turkey, 51, 56, 57, 77, 99, 192, 202 tutelage, international, 92, 134 TWAIL 37 see Third World Approaches to International Law. Twiss, Travers, 76 UDHR (Universal Declaration of Human Rights), 131 uncivilised peoples, 52, 191 uncivilised societies, 56, 108 unequal treaties, 15, 42, 46, 72, 76, 80–1 unfree labour, 65, 120 unilateralism, 218 United Kingdom, 99, 132–3, 138, 146, 149, 157, 172–3, 174 United Nations, 132, 134, 134–7, 137, 139–42, 146, 148–9, 162, 171, 173, 184–5 Charter, 8, 108, 129–31, 131–2, 133, 142, 144, 149, 172, 187, 189, 191, 200 General Assembly, 134, 135, 141–8, 156, 160–2, 184 Security Council 135 see Security Council. United States, 65, 91–3, 137–8, 145–6, 165–6, 169, 171–6, 189–90, 201–3, 219 Universal Declaration of Human Rights 131 see UDHR. universalisation, 28, 40, 47, 58–60, 62, 81, 129 universality, 18, 47, 56, 69, 129, 134, 168 unpaid labour, 21–2 unwilling or unable doctrine, 42–3, 165, 169, 171–2, 187–94, 189–90, 196, 198–203, 205–10 value, 2, 21–2, 25, 32, 116, 132 value chains global, 2, 176 Versailles Treaty, 94 victim states, 189, 190–1, 199–203, 205, 208–9 violence, 23–4, 27, 50, 53, 79, 83, 190, 198–201 legitimate, 62, 111 and rights, 187–209



wage labour, 24, 28, 62, 130, 154 wages, 21, 116, 151, 154 war on drugs, 218, 218 war on terror, 42–3, 168–9, 172, 187, 198, 200, 203, 206–8, 210, 218–19 WCG (Western Contact Group), 162–3, 165 wealth, 4, 6, 20, 26, 163 Weeramantry, Judge, 8, 8 welfare, 112, 115, 154, 213 welfare state, 90, 172, 213 welfarism, 89–91, 96, 113–18, 127 Werner, Wouter, 207–8, 208, 217 Western Contact Group (WCG), 162–3, 165 Western imperialism, 29, 45, 69, 120 Western international lawyers, 68, 72, 86, 148, 213 Western lawyers, 55, 83, 209 Westlake, John, 14, 49, 56–7, 56–7, 62, 62, 69, 75–6, 76, 82, 85 Wheaton, Henry, 46–7, 47, 57, 65 white settlers, 153, 155, 161, 163 whiteness, 55, 67, 69–70, 197 Williams, Eric, 31 Wilson, President Woodrow, 92–4, 92, 94–5, 136 women, 32, 36, 50, 70–2, 104, 117, 167, 201 see also feminism Wood, Sir Michael, 192 workers, 22, 27, 44, 85, 116 working class, 21, 53, 116, 176 domestic, 21, 50, 73 emerging, 64 World Bank, 178, 184 Wright, Quincy, 89, 99–100, 104, 106, 106–8, 108, 114, 119, 124–5, 126, 150, 159 Xuma, Alfred Bitini, 137 Yoo, John, 174, 204, 204 Yukichi, Fukuzawa, 82

CAMBRIDGE STUDIES IN INTERNATIONAL AND COMPARATIVE LAW

Books in the Series 151 Marketing Global Justice: The Political Economy of International Criminal Law Christine Schwöbel-Patel 150 International Status in the Shadow of Empire Cait Storr 149 Treaties in Motion: The Evolution of Treaties from Formation to Termination Edited by Malgosia Fitzmaurice and Panos Merkouris 148 Humanitarian Disarmament: An Historical Enquiry Treasa Dunworth 147 Complementarity, Catalysts, Compliance: The International Criminal Court in Uganda, Kenya, and the Democratic Republic of Congo Christian M. De Vos 146 Cyber Operations and International Law François Delerue 145 Comparative Reasoning in International Courts and Tribunals Daniel Peat 144 Maritime Delimitation as a Judicial Process Massimo Lando 143 Prosecuting Sexual and Gender-Based Crimes at the International Criminal Court: Practice, Progress and Potential Rosemary Grey 142 Capitalism as Civilisation: A History of International Law Ntina Tzouvala 141 Sovereignty in China: A Genealogy of a Concept Since 1840 Adele Carrai 140 Narratives of Hunger in International Law: Feeding the World in Times of Climate Change Anne Saab 139 Victim Reparation under the Ius Post Bellum: An Historical and Normative Perspective Shavana Musa 138 The Analogy between States and International Organizations Fernando Lusa Bordin 137 The Process of International Legal Reproduction: Inequality, Historiography, Resistance Rose Parfitt 136 State Responsibility for Breaches of Investment Contracts Jean Ho 135 Coalitions of the Willing and International Law: The Interplay between Formality and Informality Alejandro Rodiles 134 Self-Determination in Disputed Colonial Territories Jamie Trinidad 133 International Law as a Belief System Jean d’Aspremont 132 Legal Consequences of Peremptory Norms in International Law Daniel Costelloe 131 Third-Party Countermeasures in International Law Martin Dawidowicz 130 Justification and Excuse in International Law: Concept and Theory of General Defences Federica Paddeu

129 Exclusion from Public Space: A Comparative Constitutional Analysis Daniel Moeckli 128 Provisional Measures before International Courts and Tribunals Cameron A. Miles 127 Humanity at Sea: Maritime Migration and the Foundations of International Law Itamar Mann 126 Beyond Human Rights: The Legal Status of the Individual in International Law Anne Peters 125 The Doctrine of Odious Debt in International Law: A Restatement Jeff King 124 Static and Evolutive Treaty Interpretation: A Functional Reconstruction Christian Djeffal 123 Civil Liability in Europe for Terrorism-Related Risk Lucas Bergkamp, Michael Faure, Monika Hinteregger and Niels Philipsen 122 Proportionality and Deference in Investor-State Arbitration: Balancing Investment Protection and Regulatory Autonomy Caroline Henckels 121 International Law and Governance of Natural Resources in Conflict and Post-Conflict Situations Daniëlla Dam-de Jong 120 Proof of Causation in Tort Law Sandy Steel 119 The Formation and Identification of Rules of Customary International Law in International Investment Law Patrick Dumberry 118 Religious Hatred and International Law: The Prohibition of Incitement to Violence or Discrimination Jeroen Temperman 117 Taking Economic, Social and Cultural Rights Seriously in International Criminal Law Evelyne Schmid 116 Climate Change Litigation: Regulatory Pathways to Cleaner Energy Jacqueline Peel and Hari M. Osofsky 115 Mestizo International Law: A Global Intellectual History 1842–1933 Arnulf Becker Lorca 114 Sugar and the Making of International Trade Law Michael Fakhri 113 Strategically Created Treaty Conflicts and the Politics of International Law Surabhi Ranganathan 112 Investment Treaty Arbitration As Public International Law: Procedural Aspects and Implications Eric De Brabandere 111 The New Entrants Problem in International Fisheries Law Andrew Serdy 110 Substantive Protection under Investment Treaties: A Legal and Economic Analysis Jonathan Bonnitcha 109 Popular Governance of Post-Conflict Reconstruction: The Role of International Law Matthew Saul

108 Evolution of International Environmental Regimes: The Case of Climate Change Simone Schiele 107 Judges, Law and War: The Judicial Development of International Humanitarian Law Shane Darcy 106 Religious Offence and Human Rights: The Implications of Defamation of Religions Lorenz Langer 105 Forum Shopping in International Adjudication: The Role of Preliminary Objections Luiz Eduardo Salles 104 Domestic Politics and International Human Rights Tribunals: The Problem of Compliance Courtney Hillebrecht 103 International Law and the Arctic Michael Byers 102 Cooperation in the Law of Transboundary Water Resources Christina Leb 101 Underwater Cultural Heritage and International Law Sarah Dromgoole 100 State Responsibility: The General Part James Crawford 99 The Origins of International Investment Law: Empire, Environment and the Safeguarding of Capital Kate Miles 98 The Crime of Aggression under the Rome Statute of the International Criminal Court Carrie McDougall 97 ‘Crimes against Peace’ and International Law Kirsten Sellars 96 Non-Legality in International Law: Unruly Law Fleur Johns 95 Armed Conflict and Displacement: The Protection of Refugees and Displaced Persons under International Humanitarian Law Mélanie Jacques 94 Foreign Investment and the Environment in International Law Jorge E. Viñuales 93 The Human Rights Treaty Obligations of Peacekeepers Kjetil Mujezinović Larsen 92 Cyber Warfare and the Laws of War Heather Harrison Dinniss 91 The Right to Reparation in International Law for Victims of Armed Conflict Christine Evans 90 Global Public Interest in International Investment Law Andreas Kulick 89 State Immunity in International Law Xiaodong Yang 88 Reparations and Victim Support in the International Criminal Court Conor McCarthy 87 Reducing Genocide to Law: Definition, Meaning, and the Ultimate Crime Payam Akhavan 86 Decolonising International Law: Development, Economic Growth and the Politics of Universality Sundhya Pahuja 85 Complicity and the Law of State Responsibility Helmut Philipp Aust

84 State Control over Private Military and Security Companies in Armed Conflict Hannah Tonkin 83 ‘Fair and Equitable Treatment’ in International Investment Law Roland Kläger 82 The UN and Human Rights: Who Guards the Guardians? Guglielmo Verdirame 81 Sovereign Defaults before International Courts and Tribunals Michael Waibel 80 Making the Law of the Sea: A Study in the Development of International Law James Harrison 79 Science and the Precautionary Principle in International Courts and Tribunals: Expert Evidence, Burden of Proof and Finality Caroline E. Foster 78 Transition from Illegal Regimes under International Law Yaël Ronen 77 Access to Asylum: International Refugee Law and the Globalisation of Migration Control Thomas Gammeltoft-Hansen 76 Trading Fish, Saving Fish: The Interaction between Regimes in International Law Margaret A. Young 75 The Individual in the International Legal System: Continuity and Change in International Law Kate Parlett 74 ‘Armed Attack’ and Article 51 of the UN Charter: Evolutions in Customary Law and Practice Tom Ruys 73 Theatre of the Rule of Law: Transnational Legal Intervention in Theory and Practice Stephen Humphreys 72 Science and Risk Regulation in International Law Jacqueline Peel 71 The Participation of States in International Organisations: The Role of Human Rights and Democracy Alison Duxbury 70 Legal Personality in International Law Roland Portmann 69 Vicarious Liability in Tort: A Comparative Perspective Paula Giliker 68 The Public International Law Theory of Hans Kelsen: Believing in Universal Law Jochen von Bernstorff 67 Legitimacy and Legality in International Law: An Interactional Account Jutta Brunnée and Stephen J. Toope 66 The Concept of Non-International Armed Conflict in International Humanitarian Law Anthony Cullen 65 The Principle of Legality in International and Comparative Criminal Law Kenneth S. Gallant 64 The Challenge of Child Labour in International Law Franziska Humbert 63 Shipping Interdiction and the Law of the Sea Douglas Guilfoyle 62 International Courts and Environmental Protection Tim Stephens 61 Legal Principles in WTO Disputes Andrew D. Mitchell

60 War Crimes in Internal Armed Conflicts Eve La Haye 59 Humanitarian Occupation Gregory H. Fox 58 The International Law of Environmental Impact Assessment: Process, Substance and Integration Neil Craik 57 The Law and Practice of International Territorial Administration: Versailles to Iraq and Beyond Carsten Stahn 56 United Nations Sanctions and the Rule of Law Jeremy Matam Farrall 55 National Law in WTO Law: Effectiveness and Good Governance in the World Trading System Sharif Bhuiyan 54 Cultural Products and the World Trade Organization Tania Voon 53 The Threat of Force in International Law Nikolas Stürchler 52 Indigenous Rights and United Nations Standards: Self-Determination, Culture and Land Alexandra Xanthaki 51 International Refugee Law and Socio-Economic Rights: Refuge from Deprivation Michelle Foster 50 The Protection of Cultural Property in Armed Conflict Roger O’Keefe 49 Interpretation and Revision of International Boundary Decisions Kaiyan Homi Kaikobad 48 Multinationals and Corporate Social Responsibility: Limitations and Opportunities in International Law Jennifer A. Zerk 47 Judiciaries within Europe: A Comparative Review John Bell 46 Law in Times of Crisis: Emergency Powers in Theory and Practice Oren Gross and Fionnuala Ní Aoláin 45 Vessel-Source Marine Pollution: The Law and Politics of International Regulation Alan Khee-Jin Tan 44 Enforcing Obligations Erga Omnes in International Law Christian J. Tams 43 Non-Governmental Organisations in International Law Anna-Karin Lindblom 42 Democracy, Minorities and International Law Steven Wheatley 41 Prosecuting International Crimes: Selectivity and the International Criminal Law Regime Robert Cryer 40 Compensation for Personal Injury in English, German and Italian Law: A Comparative Outline Basil Markesinis, Michael Coester, Guido Alpa and Augustus Ullstein 39 Dispute Settlement in the UN Convention on the Law of the Sea Natalie Klein 38 The International Protection of Internally Displaced Persons Catherine Phuong 37 Imperialism, Sovereignty and the Making of International Law Antony Anghie

35 Necessity, Proportionality and the Use of Force by States Judith Gardam 34 International Legal Argument in the Permanent Court of International Justice: The Rise of the International Judiciary Ole Spiermann 32 Great Powers and Outlaw States: Unequal Sovereigns in the International Legal Order Gerry Simpson 31 Local Remedies in International Law (second edition) Chittharanjan Felix Amerasinghe 30 Reading Humanitarian Intervention: Human Rights and the Use of Force in International Law Anne Orford 29 Conflict of Norms in Public International Law: How WTO Law Relates to Other Rules of International Law Joost Pauwelyn 27 Transboundary Damage in International Law Hanqin Xue 25 European Criminal Procedures Edited by Mireille Delmas-Marty and J. R. Spencer 24 Accountability of Armed Opposition Groups in International Law Liesbeth Zegveld 23 Sharing Transboundary Resources: International Law and Optimal Resource Use Eyal Benvenisti 22 International Human Rights and Humanitarian Law René Provost 21 Remedies against International Organisations Karel Wellens 20 Diversity and Self-Determination in International Law Karen Knop 19 The Law of Internal Armed Conflict Lindsay Moir 18 International Commercial Arbitration and African States: Practice, Participation and Institutional Development Amazu A. Asouzu 17 The Enforceability of Promises in European Contract Law James Gordley 16 International Law in Antiquity David J. Bederman 15 Money Laundering: A New International Law Enforcement Model Guy Stessens 14 Good Faith in European Contract Law Reinhard Zimmermann and Simon Whittaker 13 On Civil Procedure J. A. Jolowicz 12 Trusts: A Comparative Study Maurizio Lupoi and Simon Dix 11 The Right to Property in Commonwealth Constitutions Tom Allen 10 International Organizations before National Courts August Reinisch 9 The Changing International Law of High Seas Fisheries Francisco Orrego Vicuña 8 Trade and the Environment: A Comparative Study of EC and US Law Damien Geradin

7 Unjust Enrichment: A Study of Private Law and Public Values Hanoch Dagan 6 Religious Liberty and International Law in Europe Malcolm D. Evans 5 Ethics and Authority in International Law Alfred P. Rubin 4 Sovereignty over Natural Resources: Balancing Rights and Duties Nico Schrijver 3 The Polar Regions and the Development of International Law Donald R. Rothwell 2 Fragmentation and the International Relations of Micro-States: SelfDetermination and Statehood Jorri C. Duursma 1 Principles of the Institutional Law of International Organizations C. F. Amerasinghe