Colonialism and Empire Inscribed 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, despite 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.¹ Wilson condemned colonialism and championed self-determination via the League of Nations and the Mandate System.² 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.³ International law was used, in short, to facilitate colonialism even as colonial powers projected an attitude of embracing the right to self-determination of peoples.

The Mandate System

Colonial territories have always represented significant economic importance for colonial powers.⁴ 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 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 the Pacific, was used to send the empire's reach further west into Asia. The westward expansion of the US is part of its colonial history in America. Its treatment of Native American tribes reveals its view of indigenous peoples and the extent of their "rights" in the face of empire. The US was founded essentially as a commercial enterprise 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.⁵ The idealistic words of Wilson, with his Fourteen Points centered around a single idea — "adjust colonial claims" — gave context to everything else.⁶ 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 were of vital importance for any state seeking to be a global power. The First and Second World Wars brought this importance into sharp focus, and it remained so throughout the Cold War — as it does today, even in the Russia–West conflict in Ukraine.

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."⁷ 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."⁸ Wilson's Fourteen 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 — what can best be described as 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?"⁹ It certainly did nothing to negate colonialism. In fact, the only thing that ever negated colonialism was when the colonized fought back with violence. The Filipinos did this in the face of American occupation after the Spanish-American War. The Israelis did it against the British to finally end the British Mandate. The Native Americans attempted to resist in the 19th century, but they stood no chance against the superior numbers and force of the American military; 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.

Conclusion

Colonialism has been inscribed into international law; international law in the 20th century was an attempt to hide colonialism beneath a veneer of liberal progressivism. The Mandate System was implemented to replace classical positivist international law, justifying colonial powers in maintaining their hold over smaller states and the resources therein. The only reason the Mandate System was abandoned was that indigenous peoples pushed back and caused more trouble for the colonizing state than the cost was worth. This did not stop colonial powers from continuing to push for empire expansion, however. When the law fails to provide the powers with a path toward what they want, they resort to war. Two world wars were fought in the 20th century because international law failed to win the colonial powers the control they sought to maintain. International law and war are extensions of politics. If international forums like the UN today have given smaller, less powerful states a stage upon which they can be heard, it is simply a convenient way for rival powers to block the geopolitical ambitions of one another. When these forums get in the way of said ambitions, war breaks out — for international forums, like international law itself, are merely tools of empire: they are not constraints.

Anand R., 'Attitude of the Afro-Asian States Towards Certain Problems of International Law', 15 ICLQ (1966) 35.

Anaya J., Indigenous Peoples in International Law (1996).

Anghie A., Imperialism, Sovereignty and the Making of International Law (CUP, 2004).

Bowden B., The Empire of Civilisation: The Evolution of an Imperial Idea (2009).

Carty A., The Decay of International Law (1986).

Colby E., 'How to Fight Savage Tribes', 21 AJIL (1927) 279.

Crawford J., The Creation of States in International Law (2nd edition, 2006).

Getachew A., Worldmaking after Empire: the Rise and Fall of Self-Determination (2019).

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.

President Woodrow Wilson's Fourteen Points, 8 January 1918.

Wright Q., 'The Bombing of Damascus', 20 AJIL (1926) 263–280.