The Utility of International Law for Empires

Colonialism and Empire in International Law

Introduction

Colonialism has been inscribed in international law in spite of attempts by the League of Nations and the United Nations to limit the right of states to exert force on other sovereign states. As Bowden notes, in spite of many Western colonial possessions “seeking the newly recognized right to national self-determination, unexempted state sovereignty, unqualified inclusion in international society, and full recognition under international law” there has been little movement away from colonialism in the 20th and 21st centuries.[footnoteRef:2] Wilson condemned colonialism and championed self-determination via the League of Nations and the Mandate System.[footnoteRef:3] Wilson went so far as to declare the US a “trustee of the Filipino people”—however, this idea of trusteeship flies in the face of self-determination; it allowed powerful states like the US to maintain colonies while paying lip service to anti-colonial ideals.[footnoteRef:4] International law was used, in short, to facilitate colonialism even at the same time colonial powers projected an attitude of embracing the right to self-determination of the people. [2: Bowden B., The Empire of Civilisation: The Evolution of an Imperial Idea (2009) 126.] [3: A. Anghie, Imperialism, Sovereignty and the Making of International Law (CUP, 2004) 140.] [4: Anghie [n2] 140.]

The Mandate System

Colonial territories have always represented significant economic importance for colonial powers.[footnoteRef:5] At the end of the 19th century, for instance, the US battled Spain for control of the Philippines—not out of any altruistic desire to liberate the Filipino people but rather out of a desire to expand the American Empire. The US had always been motivated by a spirit of “Manifest Destiny,” which was used to justify its westward push across the American continent and then, having reached to the Pacific, was used to send the Empire’s rein further west into Asia. The westward expansion of the US is part of its colonial history in America. Its treatment of the Native American tribes shows its view of indigenous peoples and the extent of their “rights” in the face of empire. The US was begun essentially as a business by the English and profits were always the main motive of expansion. As Anghie notes, “This preoccupation with profit contrasted somewhat with the noble visions of Empire” that others put forward to justify empire building later in the 20th century.[footnoteRef:6] The idealistic words of Wilson with his 14 points centered around this single idea: “adjust colonial claims”—a point that brought context to everything else.[footnoteRef:7] Even from the perspective of the time it was clear that the colonial nations were operating more out of commercial self-interest than out of any altruistic belief. Colonies provided raw materials for empires and they were of vital importance for any state seeking to be a global power. WW1 and WW2 brought this importance into sharp focus, and it remained in sharp focus throughout the Cold War—and so it remains today even with the Russia-West conflict in Ukraine. [5: Anghie [n2] 141.] [6: Anghie [n2] 141.] [7: President Woodrow Wilson's Fourteen Points 8 January 1918.]

The Mandate System that developed in the 20th century was meant to turn states into wards of colonial powers. Indeed, international law has been little more than a set of rules written, implemented, and interpreted by colonial powers. Thus, Anghie writes that “the positivist international law of conquest, which the League jurists sought to displace, had been directed toward extinguishing and invalidating the legal systems of non-European peoples and endorsing their replacement with the systems of law established by the colonizers.”[footnoteRef:8] Through the establishment of international tribunals, Western states masked their true colonial intentions behind a well-meaning front: “in this way, the universalizing mission of international law, by embracing the idea of trusteeship, could now be adapted to changed circumstances and anticolonial political sentiments, and still continue its task of ensuring that the Western model of law and behavior would be seen as natural, inevitable and inescapable.”[footnoteRef:9] Wilson’s 14 Points and the League of Nations were just the political gloss on an otherwise age-old pursuit of colonization. In other words, the colonial powers couched their colonial ambitions in a visage of self-determination and liberation in what can best be described as nothing more than systematized virtue signaling. Anyone paying attention was obliged to ask of the Mandate System: “Was it designed to negate colonialism or recreate it in a different form?”[footnoteRef:10] It certainly did nothing to negate colonialism. In fact, the only thing that ever negated colonialism was when the colonized fought back with violence to oppose their colonizers. The Filipinos did this in the face of American occupation of the Philippines after the Spanish-American War. The Israelis did it against the British to finally end the British Mandate. The Native Americans in the US attempted to resist in the 19th century, but they stood no chance against the superior numbers and force of the American military and their legacy was to walk the Trail of Tears. Today, they have their “territories” which are little more than breeding grounds for poverty, depression, gambling, and mental disease. [8: Anghie [n2] 146.] [9: Anghie [n2] 146.] [10: Anghie [n2] 146.]

What Makes a State?

In classical positivist international law, a state is a state when it has territory, government, people, independence, and is recognized as independent by other states.[footnoteRef:11] The Mandate System applied a new framework: the colonial powers were essentially to act on behalf of the colonized people to establish “the social foundation, the underlying sociological structure and the political, social and economic substance of the juridical state.”[footnoteRef:12] The idea of the Mandate System was that the colonial powers would act as big brothers to the smaller “becoming” states and guide them on the progressive path to statehood. The smaller “becoming” states would be led to adopt the social, political, and economic structures of the colonial state—and thus would essentially be like colonies of the colonial power. It was not a system in which the smaller state could be the kind of state it chose to be. It was a system in which the more powerful state set in place the principles to which the smaller state should strive to adhere. It was not so much a process of self-determination as it was the powerful state giving the smaller state a “helping hand” to a kind of statehood that mirrored the ideals or goals of the powerful state. The colonial powers thus put forward the rule by which any other state seeking to establish its statehood should be measured. The culture or self-determination of the mandate territory did not factor into the question. It might have pleased progressive liberals at home in the West. But one example of how problematic this situation could become can be seen in the British Mandate of Palestine after WW1, when the Jewish population that had settled in Palestine sought to establish its own statehood outside of British control. This would not be achieved until after WWII and a great deal of violence in the region. [11: Anghie [n2] 147.] [12: Anghie [n2] 147.]

The Middle East in the 20th century is a period of state-building and state-destroying. Libya went from being one of the most stable states to being a failed state following NATO’s overthrow of Gaddafi. If one goes back to the problems of Palestine, one finds that early on the UN had attempted to satisfy both Arabs and Israelis with UN Resolution 181, which partitioned Palestine into two states. Arab states refused to recognize Israel as an independent state. But other states, such as the US, went ahead and recognized the independence of Israel. It was akin to the arbitrary carving up of Europe after WW1 and WW2: here was a region that had been self-governing prior to Western intrusion, and now the West was creating new states where none existed before—much to the chagrin of the existing peoples there. Conflict continued in the region for decades.

The situation was not unlike the one seen today in Ukraine, with Russia recognizing the independence of East Ukraine, while the West excoriates, sanctions, and supports a war effort against Russia for daring to do so. International law today is unable to answer the question of what makes a state because the classical positivist international law model is not applied in a universalist manner, and the Mandate System essentially wore out its welcome. Violence and conflict continue as a result. As Bowden puts it, “the dominant architects of international society continue to be informed and influenced by a faith in the Enlightenment ideal of progress and humankind’s universal linear march toward modernity, a modernity that is universally liberal democratic, market capitalist, and cosmopolitan in appearance.”[footnoteRef:13] But what does this really mean other than that the colonial powers of the past that still remain continue to seek to remake territories in their own image—which is to say turn them into trusteeships or wards or colonies? What purpose does the IMF serve other than to turn impoverished states into debt colonies under the guise of admitting them into the globalized world order? One can see, for example, the role that the IMF played in Jamaica with its “performance tests”—a pre-requisite for financial “assistance”—and the negative effects it had Manley’s democratic socialism.[footnoteRef:14] Anticolonial leaders idealistically believed they could achieve independence in a globalized world order, as Getachew notes: “through the right to self-determination, anticolonial nationalists strengthened the legal barriers against foreign intervention and encroachment.”[footnoteRef:15] Yet, in the end, states that seek independence and inclusion into the globalized order have to accept burdens—like those provided them by the IMF—“as a condition and consequence of inclusion within the bounds of international society.”[footnoteRef:16] To be a state today does not mean much if one is cut off from the international, globalized order. Unless a state is entirely self-sufficient or has trade partners that can circumvent Western sanctions, no state will be very strong or stable outside the international order. Thus, they accept the “burdens” placed upon them by organizations like the IMF. States that resist such burdens are unequally integrated into international society or are excluded completely—or suffer regime change—and examples include Gaddafi in Libya, Iran after the fall of the Western-backed Shah, or the Taliban in Afghanistan. [13: Bowden [n1] 3.] [14: Getachew A., Worldmaking after Empire: the Rise and Fall of Self-Determination (2019) 172.] [15: Getachew [n12] 23.] [16: Getachew [n12] 55.]

Moreover, even among Western states there was no real equality in terms of which states could establish themselves over others. This was a consequence of rivalry, not of equal application of the law. Britain established itself over Palestine after WWI, but when Italy sought to establish itself in Africa under Mussolini, France, England, and others balked and their collective disapproval contributed to the climate of war that exploded a few short years later. The Allied Powers had their territories, but when Germany sought to rescue ethnic Germans in Poland (placed there by the arbitrary annexation that was part of the Versailles Treaty) the Allies went to war with Germany as though this were a flagrant violation of the most sacred international law. From this perspective one might say that international law in the 20th century was nothing other than an extension of geopolitics and colonial ambitions that never died among the most powerful countries.. Going back to Italy’s invasion of Africa, sanctions against Mussolini were called for just as sanctions against Putin and his government have been called for today.[footnoteRef:17] Haile Selassie was hailed as a victim hero just as Zelensky in Ukraine is hailed by the West as one today. But when the US attempts to overthrow Maduro in Venezuela with a puppet president that no other state recognizes, there is no recourse to international law for Maduro. [17: Getachew [n12] 69.]

Anaya argues that international law, somewhat “grudgingly” today, supports the right of indigenous peoples to self-determination[footnoteRef:18]—but even this is perhaps a bit of an exaggeration as well as an example of the anthropomorphism: international law is a tool of human beings leading states; it does not have human characteristics itself or “grudgingly” do anything of its own accord. For that reason, international law is only as effective as it is enforceable—and when differences of opinion manifest among powers of substantial military weight, enforcement essentially depends upon the outcome of war. The rights of indigenous peoples are permitted by certain powers only insofar as those peoples or their leaders support the intentions of those powers, and it has always been this way since colonialism has always been inscribed in international law. When indigenous peoples push back against colonial powers, violence ensues. This has been the case in the Middle East, with the Israelis against the British and with the Syrians against the French. Wright provides the example of the Syrian insurrection of 1925 as a case in point: “The Syrian insurrection culminating in the bombardment of Damascus in October, 1925, is an incident of a kind which has frequently marred the relations of western Powers with less advanced peoples.”[footnoteRef:19] But something about that statement should be noted as it underscores the mentality of the West—both then and now. The fact that Syrians were described by Wright a century ago as “less advanced” is indicative of the liberal progressive worldview that both established the field and that has persisted in the field: what makes indigenous peoples more or less advanced unless one is only evaluating them from the standpoint of Western liberal ideals? Why cannot the Syrians—or the Filipinos—or the Jamaicans—or any other peoples—be as “advanced” as they like and still have independence and statehood? Why cannot the Taliban serve as a legitimate government in Afghanistan without having their foreign assets seized? Why does the West get to establish the benchmark of validity if it is really concerned about self-determination? Why has Iran been vilified ever since its own people took hold of the government and removed the Shah? It should be clear that the West cares only about self-determination of indigenous peoples when the peoples accept their role in the self-determination of colonizing states. [18: Anaya J., Indigenous Peoples in International Law (1996) 4.] [19: Wright, Q., ' The Bombing of Damascus' 20 AJIL (1926) 263.]

On such matters, international law is silent when the colonial powers want it to be. This is true today in the matter of the arms trade, which should be seen as a violation of the UN Charter Article 2(4), just as it was true then. Again, Wright asked in 1926: “What, if anything, does international law have to say with regard to the bombardment of Damascus under these circumstances? The Arabs look upon the situation as one of warfare. They are astonished that the League of Nations, which was organized to prevent war, which successfully mobilized all its machinery to stop an incipient war between Greece and Bulgaria in October, should have done nothing while this more serious war was going on in territory under its special supervision.”[footnoteRef:20] What difference is there between the situation of the Arabs and the French in Syria in the 1920s and the situation of the Ukranians and the Russian-West conflict today? The Arabs in the 1920s viewed the situation as a war in which “the laws of war should be applicable”—laws which “forbid the bombardment of undefended towns.”[footnoteRef:21] France, however, viewed the situation as an insurrection that required “police measures outside of international law.”[footnoteRef:22] East Ukrainians view their situation as an ethnic war being waged against them (they identify as ethnic Russians) by the Ukrainian government (supported by the West). UN Article 2(4) should prohibit Western involvement in the conflict—but Western states view the situation as one caused by Russia, who is accused of invading peaceful Ukraine and causing unrest. Russian assets have been seized by Western states. What good is a tribunal in such a case? International law is impotent in the face of such actions; Russia has, in turn, turned to the Global South and has as much as suggested that the West cannot be trusted to act in good faith in accordance with the very rules it helped to establish in international law. [20: Wright [n17] 265.] [21: Wright [n17] 265.] [22: Wright [n17] 265.]

Are the two independent states recognized by Russia in East Ukraine truly to be considered states if Russia alone recognizes their independence? Should Israel have been considered a state after WWII if its neighboring Arab states refused to recognize its statehood? The law and its interpretation is dependent upon the politics of the day. Megret asks: “If the goal of the laws of war is to protect all individuals in armed conflict, can one ever be the on the ‘wrong’ side of the laws of war?”[footnoteRef:23] She answers the question decidedly: “The laws of war protect all,” and to exclude any side from their protection is to violate the laws themselves.[footnoteRef:24] Yet, these same laws have been inscribed with colonialism from the beginning, as Megret notes, building on the argument of Anghie: for the laws of war do not protect the “colonial ‘other’.”[footnoteRef:25] [23: Megret, F., 'From Savage to Unlawful Combatants: A Post-colonial Look at International Humanitarian Law's Other' in Orford, A,International Law and Its Others (Cambridge University Press: 2006) 298] [24: Megret [n21] 298.] [25: Megret [n21] 298.]

The Colonial Other in International Law

The colonial other is a notion that really gets to the heart of how colonialism was inscribed in international law from the beginning. Megret is worth quoting in full to demonstrate this point:

“The question of the position of non-European peoples in relation to the laws of war is, in truth, one that arose historically over only a small period of time during the second half of the nineteenth century (and only episodically after that), in situations in which savage peoples could still be considered to be relatively autonomous. By the time the land-grabbing process was completed, colonizing powers would often successfully claim that they were merely maintaining order in territory effectively under their control (whether they exercised formal sovereignty or not). Thus the issue of the treatment of non-European peoples became confined to international law’s darker recesses. Colonialism effectively defined the ‘geography’ of international law.”[footnoteRef:26] [26: Megret [n21] 299.]

Has the land-grabbing process ever halted? Did not President Trump state plainly that the US would remain in Syria to take the oil? Has anything changed under the Biden Administration? What was behind the attempted regime change in Venezuela? Or the regime change in Ukraine? The idea that international law should have a geography, as though it were applicable only in certain settings or situations, depending upon the circumstances of the colonial power, is one that reveals the true nature of international law as a Western paradigm validating Western colonialism. This true nature of international law was hidden behind the confusion of the Mandate System from the beginning, as Crawford points out.[footnoteRef:27] Colby points out as much, too, when he reveals the attitude of the Court of Claims of the United States with respect to a Native American tribe that the US viewed as having no rights in Western eyes: “A savage tribe like the Bannocks are incapable of waging war in the sense of international law. Such barbarous and loosely organized bands are incapable of attaining a status of belligerency. The least discriminating sense apprehends a difference between war against nations and military operations against gangs of pirates, bandits, and marauders.”[footnoteRef:28] Surely the Native American tribes should have had some right to self-determination—but none was acknowledged by the US government. It was merely to quiet the voices of dissent that the colonial powers adopted a false front of advocacy for indigenous peoples and inscribed it into international law. [27: Crawford, J., The Creation of States in International law (2nd edition, 2006) 568.] [28: Colby E, 'How to Fight Savage Tribes', 21 AJIL (1927) 280.]