The Battle for International Law: South-North Perspectives on the Decolonization Era 2019941484, 9780198849636

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T H E H I S T O RY A N D T H E O RY O F I N T E R NAT IO NA L   L AW

The Battle for International Law

T H E H I S T O RY A N D T H E O RY O F I N T E R NAT IO NA L   L AW General Editors NE HAL  BHUTA Chair in International Law, University of Edinburgh

ANTHONY  PAGDEN Distinguished Professor, University of California Los Angeles

BE NJAMI N ST R AUMAN N Alberico Gentili Senior Fellow, New York University School of Law

In the past few decades the understanding of the relationship between nations has undergone a radical transformation. The role of the traditional nation-​ state is diminishing, along with many of the traditional vocabularies which were once used to describe what has been called, ever since Jeremy Bentham coined the phrase in 1780, ‘international law’. The older boundaries between states are growing ever more fluid, new conceptions and new languages have emerged which are slowly coming to replace the image of a world of sovereign independent nation states which has dominated the study of international relations since the early nineteenth century. This redefinition of the international arena demands a new understanding of classical and contemporary questions in international and legal theory. It is the editors’ conviction that the best way to achieve this is by bridging the traditional divide between international legal theory, intellectual history, and legal and political history. The aim of the series, therefore, is to provide a forum for historical studies, from classical antiquity to the twenty-​first century, that are theoretically-​informed and for philosophical work that is historically conscious, in the hope that a new vision of the rapidly evolving international world, its past and its possible future, may emerge. PREVIOUSLY PUBLISHED I N THI S  SERI ES The New Histories of International Criminal Law Retrials Edited by Immi Tallgren and Thomas Skouteris Sovereignty A Contribution to the Theory of Public and International Law Hermann Heller, edited and introduced by David Dyzenhaus

The Battle for International Law South-​North Perspectives on the Decolonization Era Edited by

J O C H E N VO N B E R N ST O R F F P H I L I P P   DA N N Assistant Editor

M A X H .   MAYE R

1

3 Great Clarendon Street, Oxford, OX2 6DP, United Kingdom Oxford University Press is a department of the University of Oxford. It furthers the University’s objective of excellence in research, scholarship, and education by publishing worldwide. Oxford is a registered trade mark of Oxford University Press in the UK and in certain other countries © The Several Contributors 2019 The moral rights of the authors have been asserted First Edition published in 2019 Impression: 1 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, without the prior permission in writing of Oxford University Press, or as expressly permitted by law, by licence or under terms agreed with the appropriate reprographics rights organization. Enquiries concerning reproduction outside the scope of the above should be sent to the Rights Department, Oxford University Press, at the address above You must not circulate this work in any other form and you must impose this same condition on any acquirer Crown copyright material is reproduced under Class Licence Number C01P0000148 with the permission of OPSI and the Queen’s Printer for Scotland Published in the United States of America by Oxford University Press 198 Madison Avenue, New York, NY 10016, United States of America British Library Cataloguing in Publication Data Data available Library of Congress Control Number: 2019941484 ISBN 978–​0–​19–​884963–​6 Printed and bound by CPI Group (UK) Ltd, Croydon, CR0 4YY Links to third party websites are provided by Oxford in good faith and for information only. Oxford disclaims any responsibility for the materials contained in any third party website referenced in this work.

Series Editor’s Preface In a recent essay, noted intellectual historian Samuel Moyn observes that in the explosion of recent work in the history of international law, the ‘historiographical interest in the continuity of [international law’s] imperial entanglements’ has dwarfed the examination of the period of the ‘decolonization of international law’ that took place between 1950 and 1970.1 The eighteenth and nineteenth century transformations of a European public law in to a universal legal order had, as Hegel well-​understood, entailed the subordination and incorporation of vast numbers of peoples not-​yet-​able to conform to the political and social mores of European public law, into empires.2 But between 1950 and 1970, an epoch-​making transformation of international society took place: several intercontinental empires dissolved into dozens of new nation-​states, at the outset through violent and often brutal conflicts between colonizer and colonized,3 and then by a rapid ‘delegitimization of any kind of political rule that is experienced as a subjugation’ of a population by alien occupants.4 The result, as Jörg Fisch observes, was that while hitherto trusteeship and colonial domination in international law had been seen as serving the advancement of progress, ‘Colonial domination was [made] illegitimate per se and therefore had to be eliminated as quickly as possible . . . now colonialism prevented the development of colonial peoples’.5 Between 1945 and 1965, sixty-​seven new states were admitted as members of the United Nations (UN), transforming its membership from overwhelmingly western and European to Asian, African, and Latin American by a substantial majority. In 1960 alone, seventeen new states joined the UN, sixteen from Africa. The result of this revolution in the membership of the society of states had immense consequences for the content of international law. Jansen and Osterhammel note that decolonization challenged the ‘conceptual underpinnings of the 1 Samuel Moyn, ‘The High Tide of Anti-​colonial Legalism,’ Journal of the History of International Law, forthcoming, at note 14. 2 Hegel, Elements of the Philosophy of Right (Allen W.  Wood, ed) (Cambridge University Press, 1991), 367–​371. 3 Famously accounted for in Hegelian and psychoanalytic terms as a negation of a negation, by Frantz Fanon. Fanon, The Wretched of the Earth: ‘Decolonization is the meeting of two forces, opposed to each other by their very nature, which in fact owe their originality to that sort of substantification which results from and is nourished by the situation in the colonies. . . . Decolonization is the veritable creation of new men. But this creation owes nothing of its legitimacy to any supernatural power; the ‘thing’ which has been colonized becomes man during the same process by which it frees itself.’ (Farrington, trans. Grove Press, New York, 1963) 36–​37. 4 Jan C Jansen and Jürgen Osterhammel, Decolonization: A Short History (Princeton, 2017), 1–​2. 5 Jörg Fisch, The Right of Self-​Determination of Peoples: The Domestication of an Illusion (Anita Mage, trans. Cambridge, 2015) 205.

vi  Series Editor’s Preface international order’.6 It delegitimized colonialism and racism at the level of international society, and also ‘contributed greatly to the process that gradually made the principle of national state sovereignty absolute and uncontestable’.7 But as Getachew has recently argued, it would be a mistake to understand decolonization as limited to state-​making and thus simply reproducing the logic of international law as jus intergentes. Rather, through international law and international institutions, anti-​colonial nationalists pursued both state-​making and ‘world-​ making’: ‘rather than foreclosing internationalism, the effort to achieve national independence propelled a rethinking of state sovereignty, inspired a far-​reaching reconstitution of the postwar international order, and grounded the twentieth century’s most ambitious vision of global redistribution.’8 It is the history of this period of attempted worldmaking in and through a struggle over international law, that this important collection of essays begins to tell. The editors contend that the period from 1950 to 1970 should be seen as a ‘Sattelzeit,’ invoking Koselleck’s well-​known term. Enigmatic in both English (‘saddle-​time’) and German, the concept connoted Koselleck’s theory that a certain period of European history was formative for the emergence of modernity because it was in this time that ‘a broad series of political concepts acquired their current meanings, and that both defined and reflected the fundamental experiences’9 of the present. In the story that emerges from the chapters of this volume, decolonization and the rise of the Third World, under the structuring conditions of US-​Soviet enmity, resulted in an ambitious attempt to reformulate an international law that had hitherto been a handmaiden of imperial designs, challenging and revising key concepts in international law in ways that registered the imperatives of the postcolonial states. ‘The verbal vendetta against the so-​called European international law makes sense,’ wrote UpendraBaxi in a 1973 essay, ‘only as an articulation of the powerful urge felt by emancipated nations for self-​assertion as a pre-​condition for an international egalitarian order.’10 But, he noted, ‘all emancipated nations are groomed in, and have an interest in the corpus of international law as developed in the preceding three centuries.’11 The belief in the possibility of international law under transformed global political, economic and legal conditions, is one that deeply shaped the imaginary of international law even in the west after 1960. The volume proceeds with chapters on key sites, concepts, and individual protagonists, delineating the contours of the battlelines in respect of terms such as the 6 Jansen and Osterhammel, 153. 7 Ibid. 8 AdomGetachew, Worldmaking after Empire—​The Rise and Fall of Self-​Determination (Princeton, 2019) 3. 9 George S Williamson, ‘Retracing the Sattelzeit:  Thoughts on the Historiography of the French Revolutionary and Napoleonic Eras,’ Central European History 51 (2018) 66–​74, 68. 10 UpendraBaxi, ‘Some Remarks on Eurocentrism and the Law of Nations’ in RP Anand, ed, Asian States and the Development of International Law (Vikas, Delhi, 1973) 5. 11 Ibid 7.

Series Editor’s Preface  vii common heritage of human kind, acquired rights, jus ad bellum and permanent sovereignty over natural resources, and institutions such as the ICJ and the World Bank. The picture which emerges is necessarily incomplete, as this impressive volume of collected essays represents an important starting point for a whole new oeuvre of history that begins to pull more determinedly at specific threads of the stories that are gathered together here. One implication is clear, though: the period 1950 to 1970, which was at once the epoch of Cold War and decolonization, was anything but a hiatus of international law making.12 It was,if anything, a period of surprising anticipation of the potential to forge a new global order of economic and political justice, within and through an international legal order of co-​existence and cooperation: sovereign equality and non-​intervention were to be buttressed, and go hand in hand, with state-​led economic development and an internationalized welfarism epitomized in the plan for a New International Economic Order.13 Oddly, this quite-​recent past seems in many ways stranger to us than earlier epochs—​such as the early modern European contexts of the reinvention of the jus gentium and the jus naturale, the historiography of which is more established. As Moyn suggests in his essay mentioned above, less than seventy years after decolonization began to gather force and speed, it now requires some effort to recover the intelligibility of the hopes and illusions that characterized the ‘long transition from imperial to cosmopolitan dreams.’14 This could be because, as Dann and von Bernstorff as well as Moyn point out, the dreams of an egalitarian post-​colonial order in global law and politics steadily retreated, not due to a re-​embrace of direct imperial and colonial rule, but through a radical recasting of both former imperial and postcolonial states’ relationship to economic governance.15 But the legal and political concepts of Dann and von Bernstorff ’s international legal Sattelzeit remain very much part of our experience of the international legal order, even as they appear now the subject of a new and more centripetal battle over their content and order-​giving possibilities. If we are to have a chance of grasping what is at stake in the present contestation, we need to better understand the battles that went before. Nehal Bhuta Edinburgh July 2019

12 On the critique of Cold War as hiatus, see: Matt Craven, Sundhya Pahuja, and Gerry Simpson, ‘Reading and Unreading: Historiographies of Hiatus’, in Craven, Pahuja and Simpson (eds) International Law and the Cold War (Cambridge University Press, 2019). 13 See the special issue of Humanity on ‘The New International Economic Order,’ Volume 6, Issue 1 (2015). 14 Moyn, ‘The High Tide of Anti-​colonial legalism’, p 7. 15 See now the new locus classicus, Quinn Slobodan, The Globalists: The End of Empire and the Birth of Neo-​Liberalism (Harvard, 2018).

List of Contributors Bethania Assy, Professor, Pontifical Catholic University of Rio de Janeiro Olivier Barsalou, Assistant Professor, Université du Québec à Montréal Jochen von Bernstorff, Professor, University of Tübingen Bill Bowring, Professor, Birkbeck College, University of London Anna Brunner, Judge, Regional Court of Ingolstadt Matthew Craven, Professor, SOAS University of London Philipp Dann, Professor, Humboldt-​University Berlin Luis Eslava, Reader, University of Kent Christopher Gevers, Lecturer, University of KwaZulu-​Natal Rotem Giladi, Lecturer, University of Helsinki Florian Hoffmann, Professor, Pontifical Catholic University of Rio de Janeiro Martti Koskenniemi, Professor, University of Helsinki Carl Landauer, Attorney, Axiom Global Inc. Umut Özsu, Associate Professor, Carleton University Sundhya Pahuja, Professor, University of Melbourne Surabhi Ranganathan, University Lecturer, University of Cambridge Anna Saunders, MPhil Candidate, University of Melbourne Guy Fiti Sinclair, Senior Lecturer, Victoria University Wellington Prabhakar Singh, Associate Professor, Jindal Global Law School Muthucumaraswamy Sornarajah, Professor, National University of Singapore Emmanuelle Tourme Jouannet, Professor, Science Po Ingo Venzke, Professor, University of Amsterdam

List of Abbreviations AA AD AFROSEC AIDS AJIL ANC ARAMCO ASSR BIS BIT BSAC CDDH

Afro-​Asian Anno Domini Afro-​Asian Organization for Economic Cooperation Acquired Immune Deficiency Syndrome American Journal of International Law African National Congress Arabian American Oil Company Autonomous Socialist Soviet Republic Bank for International Settlements Bilateral Investment Treaty British South Africa Company Notification system of the Conférence Diplomatique sur la Réaffirmation et le développement du Droit International Humanitaire Applicable dans les Conflits Armés CEPAL Comisión Económica para América Latina y el Caribe CERD United Nations Committee for the Elimination of Racial Discrimination CHM Common Heritage of Mankind CIA Central Intelligence Agency CSCE Conference on Security and Cooperation in Europe CTC Counter-​Terrorism Committee DoS Department of State ECLAC Economic Commission for Latin America and the Caribbean ECOSOC United Nations Economic and Social Council EEC European Economic Community EJIL European Journal of International Law EPTA Expanded Programme for Technical Assistance ESC European Social Charter EU European Union FCN treaty Treaty of Friendship, Commerce and Navigation FFI French Forces of the Interior FLN Front de Libération Nationale G77 Group of 77 GA General Assembly GATT General Agreement on Tariffs and Trade GDP Gross Domestic Product GEP Group of Eminent Persons GNP Gross National Product HIV Human Immunodeficiency Virus IBRD International Bank for Reconstruction and Development

xvi  List of Abbreviations ICAO ICC ICCPR ICERD ICESCR ICJ ICJ Rep

International Civial Aviation Organisation International Criminal Court International Covenant on Civil and Political Rights Convention on the Elimination of All Forms of Racial Discrimination International Covenant on Economic, Social and Cultural Rights International Court of Justice International Court of Justice Reports of Judgements, Advisory Opinions and Orders ICLQ International and Comparative Law Quarterly ICRC International Committee of the Red Cross ICSID International Centre for Settlement of Investment Disputes IDA International Development Association IFAD International Fund for Agricultural Development IFC International Finance Corporation IFI International Financial Institutions IHL International Humanitarian Law ILC International Law Commission ILCA International Law and Colonialism in Africa ILM International Legal Materials ILO International Labour Organization ILR International Law Reports IMF International Monetary Fund IO International Organisation IPJET International Platform of Jurists for East Timor ISA International Seabed Authority ISI Import Substitution Industrialization ISIs Import Substitution Industrialization Strategies ITO International Trade Organization LGDJ Librairie générale de droit et de jurisprudence LSE London School of Economics MNC Multinational Corporation NAM Non-​Aligned Movement NATO North Atlantic Treaty Organization NGO Non-​Governmental Organization NIEO New International Economic Order NLR Nigerian Law Review NY New York OAS Organization of American States OAU Organization of African Unity OECD Organisation for Economic Cooperation and Development ONU Organisation des Nations Unies ONUC Opération des Nations unies au Congo OPEC Organization of the Petroleum Exporting Countries OPIC Overseas Private Investment Corporation PAC Pan African Congress

List of Abbreviations  xvii PCIJ PLO PSNR RIIA RPSNR RSFSR SUNFED SWAPO TAB TRC TW TWAIL UAS UDHR UK UN UNCIO UNCLOS UNCTAD UNCTC UNDP UNEF UNESCO UNGA UNIDO UNITAR UNDP UNSC UNSG UNTAET UNTAG UNTS UNTSO US USAID USSR VCLT VCSSPAD WB WEO WIPO WSOY WTO ZANU

Permanent Court of International Justice Palestine Liberation Organisation Permanent Sovereignty of Natural Resources Royal Institute of International Affairs Resolution on the Permanent Sovereignty over Natural Resources Russian Soviet Federated Socialist Republic Special United Nations Fund for Economic Development South West African Peoples Organisation Technical Assistance Board Truth and Reconciliation Commission Third World Third World Approaches to International Law Union of African States Universal Declaration on Human Rights United Kingdom United Nations United Nations Conference on International Organization United Nations Convention on the Law of the Sea United Nations Conference on Trade and Development United Nations Centre on Transnational Corporations United Nations Development Programme United Nations Emergency Force United Nations Educational, Scientific and Cultural Organization United Nations General Assembly United Nations Industrial Development Organization United Nations Institute for Training and Research United Nations Development Programme United Nations Security Council United Nations Secretary General UN Transitional Administration in East Timor UN Transition Assistance Group United Nations Treaty Series United Nations Truce Supervision Organization United States United States Agency for International Development Union of Soviet Socialist Republics Vienna Convention on the Law of Treaties Vienna Convention on Succession of States in respect of State Property, Archives and Debts World Bank World Economic Outlook World Intellectual Property Organization Werner Söderström Osakeyhtiö World Trade Organization Zimbabwe African National Union

The Battle for International Law An Introduction Jochen von Bernstorff and Philipp Dann

I. Introduction On 14 December 1960, five years after the Bandung Conference, the UN General Assembly (UNGA) with an overwhelming majority of 89 votes did ‘solemnly proclaim(s) the necessity of bringing to a speedy and unconditional end colonialism in all its forms and manifestations’.1 No state voted against the resolution, but all of the still-​existing colonial powers, including the US, abstained. By the mid-​ 1970s more than two-​thirds of the world’s population lived in ‘newly independent states’ having emerged from the former Western and Asian Empires, increasing the absolute number of states dramatically from fifty-​one in 1945 to 144 in 1975.2 This meant not just a numerical change. Instead, the decolonization era came with a fundamental challenge to (legalized) Western hegemony through a new vision of the institutional environment and political economy of the world. It is during this era, which arguably was couched between classic European imperialism and a new form of US-​led Western hegemony, that fundamental legal debates took place over a new international legal order for a decolonized world. In fact, this book argues that this era presents, in essence, a battle that was fought out by diplomats, lawyers, and scholars, particularly over the premises and principles of international law. In a moment of relative weakness of European powers, ‘newly independent states’, and international lawyers from the South fundamentally challenged traditional Western perceptions of international legal structures. In the words of George Abi-​Saab, who himself became a protagonist in this endeavour, the third world rejected the traditional view staunchly held in Western quarters, that a new State is born in a legal universe that binds it, newly independent Third World States started 1 Declaration of the Granting of Independence to Colonial Countries and Peoples, UNGA Res 1514 (XV) (14 December 1960) UN Doc A/​RES/​1514(XV); for the voting record, see UN Doc A/​PV.947, GAOR 15th Session, 1273–​74. 2 See ‘Growth in United Nations Membership, 1945–​ present’ accessed 6 August  2019. Jochen von Bernstorff and Philipp Dann, The Battle for International Law: An Introduction In: The Battle for International Law: South-North Perspectives on the Decolonization Era. Edited by: Jochen von Bernstorff and Philipp Dann, Oxford University Press (2019). © The Several Contributors. DOI: 10.1093/oso/9780198849636.003.0001

2  Jochen von Bernstorff and Philipp Dann by contesting the alleged universality and legitimacy of the international legal system: a system developed without their participation and used to justify their subjugation; an unjust system, for whilst formally based on sovereign equality and hence reciprocity, in actuality it works in one direction and in favour of one side only; and finally an antiquated system that does not correspond to contemporary conditions and their specific needs.3

International law was at the centre of these decolonization struggles, constituting for third-​world international lawyers both an emancipatory promise and manifestation of colonial subjugation, and for Western internationalists a well-​ known but now threatened order. Up until the early 1950s, international law had been a discursive structure clearly dominated by Western speakers and upheld through communications of diplomats, scholars, and other institutional and individual actors. This language of international law was in itself unstable and highly indeterminate. It was structurally shaped by its nineteenth-​century legacy of differentiating between the ‘civilized’ Europeans (the centre) and the others—​the ‘non-​civilized’ at the periphery—​even though the standard of civilization as such had increasingly fallen into disrepute in the first half of the twentieth century.4 That international law was a central battlefield for a new world order was at the same time surprising as well as expected. It was perhaps surprising in that international law in the eyes of many protagonists was somewhat discredited as a mechanism enshrining the old order, to fortify and justify it as a just and necessary structure. Law was hence seen as a powerful tool of subjugation. At the same time, for many of the governments and scholars, international law was also the central medium to achieve a fundamental reform of the old order, to remedy substantive injustices through peaceful cooperation. It nonetheless remained one of the central problems and in a way paradoxical that the third world saw itself compelled to fight the battle within the normative language of the colonizers, that is—​within international law. With greater numbers of new states gaining formal independence during this era international law was fundamentally challenged on various levels: new voices from the third world appeared on the scene and became part of international legal discourse.5 Formal independence from the metropoles as a political event made some of these voices heard in the centre, provoking counter-​reactions and thus opened the ‘battle’ for international law. Others remained marginalized and continued to be silenced and unheard outside of their local and domestic contexts. Some of these new voices asked for a new international law to be a ‘clean slate’ 3 Georges Abi-​Saab, ‘The Third World Intellectual in Praxis:  Confrontation, Participation, or Operation Behind Enemy Lines?’ (2016) 37 Third World Quarterly 1957, 1958–​59. 4 Gerrit W Gong, The Standard of Civilization in International Society (Clarendon Press 1984); Antony Anghie, Imperialism, Sovereignty and the Making of International Law (CUP 2008) ch 2 and 3, especially pp 109–​10 and 182–​94 (hereafter Anghie, Imperialism). 5 On these voices, see the contributions to this volume in Part II. A.

The Battle for International Law  3 and to govern the relationship between peoples and human beings on this globe beyond the existing Western order, which they rejected, claiming that the new participants could not be bound by a system created without them—​or even with the apparent intention of subjugating them. Other protagonists wanted the third world to ‘enter’ the existing discursive structures based on the concept of equal state-​ sovereignty, taking a (sometimes more, sometimes less radical) reformist approach to the concepts, rules, and principles traditionally subsumed under the term international law by the centre. These voices pulled various sites and fields into the discursive battle that was international law—​fields as diverse as were the main protagonists and their strategies:  negotiations on new fundamental multilateral treaties6 were turned into battle-​sites. In addition, central concepts of existing international law such as sovereignty, non-​intervention, and self-​determination, as well as the main tenets of international economic law, were subject to significant controversy within and outside of the United Nations (UN).7 These debates and their third-​world international legal protagonists, as well as the new embattled concepts, have often been portrayed as a short-​lived Southern or socialist (Cold War-​) revolt within UNGA with ultimately minor and negligible implications for international law and legal scholarship. As the contributions to this volume show, nothing could be more mistaken. Not only that the outcome of this battle has fundamentally shaped what we presently conceive of as international legal structures. With hindsight, we hold that international legal structures in many areas of international relations have been transformed during this era, albeit with the effect of enabling a transition from classic European imperialism to new forms of US-​led Western hegemony. The underlying aspirations, strategies, and failures of this battle thus are of vital importance for any future project aiming to address and alter the relationship between international law and fundamental inequalities in this world.8 In that sense, this volume attempts to provide an intellectual history of the transformation of international law in the 1950s to 1970s and to offer a better understanding of the contestations to the then-​dominant perceptions of order. By doing so it aims to give the reader a better grasp of how the world became what it is today by new historical insights into the conditions, contingencies, and necessities of what led to its current depressing and desolate state. The remainder of this introduction proceeds in three steps. Section II provides a broader context of the ‘decolonization era’, the aspirations,

6 For example, the two international human rights covenants, the Vienna Convention on the Law of Treaties, the Vienna Conventions on State Succession, the UN Convention on the Law of the Sea, and the two Additional Protocols to the Geneva Conventions. 7 On different fields of battle, see the contributions to this volume in Part I. 8 See Nils Gilman, ‘The New International Economic Order: A Re-​Introduction’ (2015) Humanity 1 (who wonders how it came that an agenda that was seen in its time as necessary and fundamental is today almost forgotten or rejected as unrealistic).

4  Jochen von Bernstorff and Philipp Dann and challenges shaping the battle for international law during this time. Section III introduces the central battle fields. Finally, Section IV looks at the protagonists of battle, that is, authors and scholarly landscapes in which they were set, as well as institutions (III.).

II.  The battle period: context and characteristics 1.  1950s–​1970s as Sattelzeit The dominant narrative stresses the years of 1945 and 1989 as major turning points in the history of the global order and international law. We want to offer an alternative reading, highlighting the changes that begin to occur in the early 1950s as a transformative phase leading into what is called the ‘decolonization era’—​a period of time situated between the end of post-​1885 European imperialism in the mid-​ 1950s and the beginning of unipolar US hegemony in international relations of the 1980s and 1990s.9 With this periodization, we argue for an alternative and less Eurocentric perspective on the history of international law.10 The third world quest for formal independence first culminated as a conscious and concerted ‘trans-​ civilizational’ movement with the Afro-​ Asian Bandung Conference in 195511 and lasted roughly until the mid-​1970s with the Declaration on the New International Economic Order. It opened a new chapter in world history. It marked the end of classic European-​led imperialism that had crystallized in the Berlin conference of 1885, when only fourteen Western states had carved up Africa without any Asian or African participation, but continued during the negotiations of the UN Charter in 1945, when mere eleven out of fifty-​one negotiating states came from Africa or Asia. The post-​Bandung era marked the moment in which international law, for the first time, could claim to constitute a universal legal order at least in a formal and geographical sense.12 Beginning in 1966, sixty-​one states from Africa or Asia constituted a majority within the UNGA, in which ‘most of the world’ (as Partha Chatterjee aptly put it13) were at least formally represented. 9 On periodizations and their implicit authorization and de-​authorization of different narratives and perspectives. Oliver Diggelman, ‘The Periodization of the History of International Law’ in Bardo Fassbender and Anne Peters (eds) Oxford Handbook on History of International Law (OUP 2012) 997; see also Pahuja and Saunders, Chapter 6, this volume. 10 Pahuja and Saunders (this volume) write: ‘Periodization is always an argument, never a fact’. 11 Luis Eslava, Michael Fakhri and Vasuki Nesiah, ‘Introduction’ in Luis Eslava, Michael Fakhri and Vasuki Nesiah (eds) Bandung, History and International Law: Critical Pasts and Pending Futures (CUP 2018) (hereafter Eslava et  al., ‘Introduction’); Onuma Yasuaki, A Transcivilizational Perspective on International Law: Questioning Prevalent Cognitive Frameworks in the Emerging Multi-​Polar and Multi-​ Civilizational World of the Twenty-​First Century (Hague Academy of International Law 2010). 12 Eslava et al., ‘Introduction’ (n 11). 13 Partha Chatterjee, Politics of the Governed:  Reflections on Popular Politics in most of the World (Columbia University Press 2004).

The Battle for International Law  5 The three decades between the early 1950s and late 1970s connect the end of ‘classic’ European imperialism with the long rise of US dominance in international relations and a specific model of global capitalism, which was often called ‘neo-​ imperialism’ or ‘neo-​colonialism’ by critical contemporary voices.14 One could understand these years according to Koselleck’s Sattelzeit concept15—​the bridging of two different forms of global Western dominance—​a transitional phase in which fundamental concepts of international law were re-​imagined, politicized, and transformed. These debates were also influenced by the ideological and military rivalry between the US, the USSR, and China, often referred to as the Cold War. The threat of a nuclear stand-​off between the US and the Soviet Union especially shaped popular and scholarly perceptions of international politics during this time, masking to an important degree the continuous rise of US economic, political, and cultural dominance in the world. According to Koselleck, such a transitional phase is marked by a change of meaning of ‘constitutive’ political and legal concepts. Through politicizing, contesting, and defending the content of normative structures, the politico-​legal fabric is transformed and then subsists over time in a new historical era.16 As to international law between the 1950s and 1970s these battles over meaning and new content of rules were the result of the collapse of European imperialism; at the surface, they played out in legal debates around doctrinally recognized ‘sources’ of international law—​in new legislative projects through multilateral conventions, in disputes over changing customary law, and in discursive battles over the meaning of general principles of international law. At the same time, these discursive battles represented deeper challenges and politizations of entrenched post-​1885 international legal structures and normative assumptions, such as the pervasive standard of civilization and assumed racial hierarchies. While the third world’s battle for a new international law succeeded in abolishing central discursive structures created by European imperialism, it ultimately could not prevent new forms of Western domination from being established, which, in that sense, are a product of the battle for international law. Western governments and international lawyers managed in a classic hegemonic move to translate the discursive rifts created by the Third-​World attacks into reforms and processes of restructuration, again portraying Western interests in a new world of formally independent states as universal interests.17 International legal discourse and the inherent conservative bias of law as ingrained social practice was used by Western actors to counter requested revolutionary innovations as incompatible with the

14 Kwame Nkrumah, Neo-​Colonialism: The Last Stage of Imperialism (International Publishers 1965). 15 Reinhart Koselleck, ‘Einleitung’, in Otto Brunner, Werner Conze and Reinhart Koselleck (eds), Geschichtliche Grundbegriffe, vol 1 (Klett-​Cotta 1994) XV. 16 ibid. 17 Ernesto Laclau, ‘Identity and Hegemony: The Role of Universality in the Constitution of Political Logics’ in Judith Butler, Ernesto Laclau and Slavoj Zizek, Contingency, Hegemony and Universality: Contemporary Dialogues on the Left (Verso 2000) 44.

6  Jochen von Bernstorff and Philipp Dann ‘system’ or internal ‘coherence’ of a specific notion of ‘international law’.18 As this volume shows, this Western process of thwarting the attacks launched by the third world saw the use of further hegemonic discursive moves, including ‘boundary drawing’19 between the political and the legal,20 international and national,21 private and public,22 and legal and economic aspects23 in order to exclude revolutionary arguments from the legal battle sites. Another frequent tactic was to integrate substantive claims made by the third world in legal and policy projects under Western institutional control in order to eat up their revolutionary potential.24 And while the standard of civilization became abolished, separate or antagonistic treatment of the new governments in the peripheries of Western powers could be argued because of them being different as ‘newly independent’, ‘non-​industrialized’, ‘developing’, ‘dysfunctional’, or ‘debtor’ or ‘socialist’ states. Another hegemonic use of international law was to replace multilateralism by bilateral treaty relations in which the power asymmetry between the superpower or former metropole on the one side, and the newly independent government on the other, could be brought to bear in an unmediated fashion. All these discursive Western countermoves were supported frequently via economic and military coercion emanating from Washington and the old metropoles, rivalled only by Moscow.

2.  Precursors, aspirations, and momentum The contestation of Western colonial domination, the struggle for independent statehood and formal equality of all nations had started long before 1955.25 However, it was only then that it actually triggered a process of liberation of most Asian and African societies from direct colonial rule. From the perspective of the colonized, neither the League of Nations nor the foundation of the UN had been a major breakthrough in their quest for independence. National self-​determination at least as a proto-​legal concept was on the international agenda dating at least from Wilson’s famous 14 points, although it was originally a principle not conceived as

18 Bernstorff this volume; on ‘conservative or status quo-​oriented choices’ in international legal practice (Martii Koskenniemi, From Apology to Utopia (CUP 2006) 610). 19 Term used by Joscha Wullweber, ‘Constructing Hegemony in Global Politics:  A Discourse-​ Theoretical Approach to Policy Analysis’ (2018) 40 Administrative Theory and Praxis, relying on Laclau’s concept of ‘social heterogeneity; Ernesto Laclau, On Populist Reason (Verso 2005) 139–​56. 20 Von Bernstorff Chapter 2, this volume. 21 Pahuja and Saunders Chapter 6, this volume. 22 Craven Chapter 4, this volume, referring to Carl Schmitt’s Nomos of the Earth. 23 Sornarajah Chapter 7, this volume. 24 Dann Chapter 12, this volume. 25 Joge Esquirol, ‘Latin America’, in Bardo Fassbender and Anne Peters (eds), The Oxford Handbook of International Law (OUP 2012); Arnulf Becker Lorca, Mestizo International Law (CUP 2014) (hereafter Becker Lorca, Mestizo International Law).

The Battle for International Law  7 ripe for universal application.26 In contrast to Lenin’s The Right of Nations to Self-​ Determination (1914), during the Peace Conference Wilson explicitly stated that ‘it was not within the privilege of the conference of peace to act upon the right of self-​determination of any peoples except those which had been included in the territories of the defeated empires’.27 As Mitchell and Massad demonstrate, Wilson`s approach to self-​determination before and during the Peace Conference was not only a selective one but also had managed to turn Lenin’s anti-​colonial understanding of self-​determination into an ambivalent concept that could be used for stabilizing and normalizing colonial relationships.28 Of his famous fourteen points, the fifth promised ‘a free, open minded, and absolutely impartial adjustment of all colonial claims, based upon a strict observance of the principle that in determining all such questions of sovereignty the interests of the populations concerned must have equal weight with the equitable government whose tile is to be determined’. The idea to introduce a balancing test between native ‘interests’ or consent and the interests of the colonizer acting as a trustee of ‘civilization’ had its roots in the 1885 Berlin Conference, where the US pushed for legitimation of territorial control through formalized agreements with native ‘chiefs’. During the Peace Conference it was the highly influential Jan Smuts, a South African politician and adviser to both the United Kingdom (UK) and the United States (US) government, who managed to convince Wilson to create a mandate system along these lines. Independence was an issue only for fully ‘civilized’ peoples—​for all other populations consent and paternalistic consideration of local interests sufficed. Smuts helped to amalgamate the concept of self-​determination with the older quest of white settler colonies for ‘self-​rule’ and independence vis-​ a-​vis the metropole within larger imperial structures.29 Both for settler colonies and for direct forms of colonialism, the formal consent of local rulers, representing ‘communities’ usually set up by the colonizers for this very purpose, was supposed to strengthen the legitimacy of the colonial project.30 When local consent was clearly absent, balancing between the interests of ‘civilization’ represented by the colonizer (or white settlers) and local resistance would, in the eyes of most Western international lawyers, inevitably tilt towards the colonizer. Additionally, both world organizations institutionalized supervisory structures for mandates 26 Erez Manela, The Wilsonian Moment:  Self-​ Determination and the International Origins of Anticolonial Nationalism (OUP 2009); see also Barsalou and Bowring this volume. 27 On the reception of Lenin’s and Wilson’s diverging concepts:  Joseph Massad, ‘Against-​Self-​ Determination’ (2018) 9 Humanity (hereafter Massad, ‘Against Self-​Determination’). 28 ibid; see also Timothy Mitchell, Carbon Democracy: Political Power in the Age of Oil (Verso 2013) (hereafter Mitchell, Carbon Democracy). 29 Mitchell, Carbon Democracy (n 28) 72; Massad, ‘Against Self-​Determination’ (n 27). 30 Mitchell, Carbon Democracy (n 28) 80; see also on the British use of self-​determination language in order to legitimize empire, Susan Pedersen, The Guardians: The Legend of Nations and the Crisis of Empire (OUP 2017) 109.

8  Jochen von Bernstorff and Philipp Dann (League of Nations) and trust territories (UN) in their founding documents, based on that same balancing logic shying away from a radical break with the colonial era.31 It found its expression in the mandate or trusteeship concept as such, which presupposes that the colonized still need the colonizer to gradually lead them to a higher Western state of ‘civilization’, which will then allow for self-​rule and independence. In that sense, self-​determination as used by European jurists had a different and much more flexible meaning in the colonial context than it had in an intra-​European one, where, over the course of the nineteenth century, it had become an ‘all or nothing’ discursive vehicle of nation building and the quest for immediate and fully independent statehood. As applied in the peripheries of the great powers, the concept thus came with a normalizing internal structure inscribed by the standard of civilization. One of the legacies of the Bandung Conference and GA-​Resolution 1514 is bringing into disrepute the normalizing dimension of the concept of self-​determination in the colonial context, and in doing so, substantively transforming twentieth-​century international legal structures. Couched between phases of Western dominance, the battle for international law was shaped by a growing momentum and optimism by Third-​World protagonists and contemporaries about ‘decolonization’ and its potential. At the beginning, under the leadership of politicians like Jawaharlal Nehru (India), Gamal Abdel Nasser (Egypt), Kwame Nkrumah (Ghana), Josip Broz Tito (Yugoslavia), and Sukarno (Indonesia), the third world seemed relatively united in its attempt to occupy a space of neutrality in the Cold War’s ideological confrontation.32 The non-​aligned movement as it emerged right after the Bandung conference was a self-​ confident counterproposal to the existing structure of international relations and their legal underpinnings. The widely shared experience of colonial subjugation and liberation was turned into a new ideal of international relations that rejected interventionism, exploitation, and racism—​and demanded the respect for equality, non-​interference, non-​violent solution of conflicts, and material solidarity. The foundation of the UN Conference for Trade and Development (UNCTAD) was meant to further institutionalize this cooperative quest for a joint international agenda beyond the bloc confrontation. With the 1960 UNGA Resolution 1514 on ‘the granting of Independence to Colonial Countries and Peoples’, the group of newly independent countries had already shown its growing assertiveness in using the UN as platform. There was also an increased willingness to create institutional structures for their demands. Against this background, the soon widely popular notion of third world, as coined by Alfred Sauvy, the French journalist and anthropologist, captured much of this idea. In reference to Abbe Sieyes’s notion of 31 Mark Mazower, No Enchanted Palace: The End of Empire and the Ideological Origins of the United Nations (Princeton University Press 2013). 32 Robert J McMahon, ‘Introduction’ in Robert J McMahon (ed), The Cold War in the Third World (OUP 2013) 1; Khan, Group of 77, MPEPIL (2011) para 5; Vijay Prashad, The Darker Nations: A People’s History of Third World (The New Press 2008).

The Battle for International Law  9 the third estate in the context of the French revolution, the notion expressed the self-​understanding of the newly independent governments to represent the majority of states and people in the world and the demand that this world’s democratic majority should not just be recognized in its position, but also granted its effective rights as democratic majority. It was not a hierarchical notion in the sense of the ‘also-​ran’ third (behind the first and the second) world, but the proud emancipative voice of the democratic majority. At the same time, the (post-​Bandung) decolonization movement in many ways continued earlier struggles of the Latin American states, the Ottoman Empire, China, and other non-​Western states for full recognition of the principles of formal equality and non-​intervention. Their early twentieth-​century struggles for independent statehood and against unequal treaties, gunboat diplomacy, extraterritorial jurisdiction, corporate exploitation, and institutional under-​representation in many ways served as blueprints for the third world before and after decolonization.33 These early twentieth-​century struggles for full inclusion into—​and modification of—​nineteenth century European international law also had made it virtually impossible for the Europeans to infinitely defer formal decolonization in Africa and Asia. Already within the League of Nations, references to civilizational superiority as a justification for colonial rule had increasingly become discredited as an official argument.34 The gradual demise of the standard of civilization as a widely shared official European doctrine in the 1930s prepared the ground for the non-​discrimination clause in the UN Charter and the fight against ‘racialism’ proclaimed in Bandung in 1955. According to scholars of the third world, racism was not only tolerated by international legal structures, but also by a constitutive element of nineteenth-​century international law: International law was imbedded with white racism and thus promoted the interests of the whites while rigorously subordinating those of others. White racial discrimination was thus a fundamental element of international law during the period in question.35

In general, the third world followed the Latin-​American emancipatory project in particular in its attempt to adapt international legal structures to its needs from within the system.36 As many of the resistance movements in the third world began in the 1920s and 1930s, the first generation of third world resistance fighters

33 See Eslava this volume. 34 On this development Becker Lorca, Mestizo International Law (n 25); see also:  Gary Wilder, Freedom Time: Negritude, Decolonization and the Future of the World (Duke University Press Books 2015); Mohamad Shababuddin, Ethnicity and International Law (CUP 2016). 35 Oji Umozurike, International Law and Colonialism in Africa (Nwamife Publishers 1979) 36 (hereafter Umozurike, Colonialism). 36 Eslava this volume; Becker Lorca, Mestizo International Law (n 25).

10  Jochen von Bernstorff and Philipp Dann was shaped by the legal debates of this era; Ho Chi Min was a delegate at the 1919 Versailles conference. Both the interwar struggles as well as the post-​Second World War decolonization movement pressured the governments of the great powers—​ and their lawyers—​to accept that they had a formal right to have the same rights as the great powers granted each other through their diplomatic and legal practice. Statehood, in the European nineteenth-​century sense, was regarded as a precondition to receive that status of a sovereign equal. But the era of the battle for international law was also different than previous moments of decolonization. Regardless of the emancipatory path dependencies, many Third-​World politicians and scholars saw independent statehood and UN membership more as a means to the end of radically transforming the international political and economic order, and its law.37 Within reach was a truly universal law, not only in terms of the subjects of that legal order, but also regarding its substantively reformed content, which for the first time would take into account the interests of all states. In that sense, the Third-​World project was more revolutionary than that of their Latin-​American, Turkish, and East-​Asian predecessors. Projects like the New International Economic Order bear testimony of the substantive transformations of colonial and neo-​colonial structures that were at the heart of the Third-​World battle for a new international law. The battle for international law in the Sattelzeit between the 1950s and the late 1970s thus closely linked two consecutive and interrelated discourses: the initial struggle for formal independence and the one for substantive political and economic independence of the entities now organized in formally recognized states. While international law was eventually being transformed during this era, it was not the change the third world had wanted. In the contemporary view of many Third-​World politicians and scholars, it was precisely in this era that colonialism had been replaced by ‘neo-​colonialism’, and where both had been sustained by international legal structures imposed on the third world. In his 1958 address to the first Conference of Independent African Sates in Accra, Kwame Nkrumah declared: The imperialists of today endeavour to achieve their ends not merely by military means, but by economic penetration, cultural assimilation, ideological domination, psychological infiltration, and subversive activities even to the point of inspiring and promoting assassination and civil strife.38

In the literature on this historical period, the battle for international law is often reduced to the recognition of a formal right to self-​determination of the colonized, while the struggle for a substantive reversal of international legal structures associated with ‘neo-​colonial’ domination goes unmentioned. But

37

On the role of the UN in this process, see Sinclair this volume.

38 Umozurike, Colonialism (n 35) 126.

The Battle for International Law  11 it is this dimension of the struggle which deserves historical reflection as an unattained quest for a more just world order. Our argument is that this Sattelzeit era brought about the international law of today—​not as a simple continuation of colonialism, but as a transformed legal and political order that allows for new forms of hegemonic rule.

3.  The quest for statehood Despite the attempt of a number of Third-​World leaders via the non-​aligned movement to create a space of neutrality in the Cold War, both colonial legacies and new super-​power interventionism into the inevitably weak and contested structures of post-​independence statehood made it increasingly difficult, disadvantageous, or impossible for the new governments of the third world not to join one of the major ideological blocs. At the same time, statehood and the quest for ‘development’ were not only largely unquestioned in both ideological blocks, but also came with heavy burdens for the newly independent countries. The struggle for independence was connected in an ambivalent way to the unquestioned ideal of modern statehood.39 While the independence movements fought for international conditions that made the common goal of independent statehood possible, at home they faced existing colonial proto-​state structures,40 which were usually based on the colonial policies of racial segregation and the ‘divide and rule’ strategies of the colonizer, both of which had created and instrumentalized ethnic divisions. Odd Arne Westad describes the experience of local populations with the colonial state, saying: As such, the state therefore emerged as something extraneous to indigenous populations, even at the elite level. The ‘foreignness’ of the state led to a constant need for policing at all levels, even in the most assimilationist of colonies. And the lack of local knowledge, the availability of labour, and the abundance of resources led to the inauguration of grand projects, intended both to deliver raw materials to the empire and to show the indigenous peoples the efficacy and superiority of the colonial state. It is no wonder that the colonized often described their existence as living within a giant prison.41

39 See Eslava this volume; Bertrand Badie, The Imported State: The Westernization of Political Order (Stanford University Press 2000). 40 Crawford Young, The Colonial State in Comparative Perspective (Yale University Press 1994). For the post-​colonial ramifications of this, see Upendra Baxi, ‘Constitutionalism as a Site for State Formative Practices’ (2000) 21 Cardozo Law Review 1183. 41 Odd A Westad, The Global Cold War: Third World Interventions and the Making of Our Times (CUP 2005) 75 (hereafter Westad, The Global Cold War).

12  Jochen von Bernstorff and Philipp Dann As a consequence, local economies at the moment of decolonization were focused on exporting raw materials and had not been built to generate income, let alone welfare, for an independent society. Worse, these new states, with their old colonial borders and their remaining legal structures, often did not correspond to ethnic and linguistic identities or existing societal and political structures on the ground. And the alleged principle of uti possidetis as advanced by the former colonizers made independence dependent on the recognition of these existing colonial borders. In close connection, the concept of economic growth was equally ambivalent. In many ways the modernization strategy of the new states followed the footpaths of grand scale and often disastrous economic and infrastructural interventions of the late colonial era.42 More subtle, but also more effective, the notion of ‘development’ and the ‘invention of poverty’43 created and dynamized a logic of othering and a ‘rationality of rule’44 that set the ‘underdeveloped’ up for an unwinnable race to catch up with the West, and allowed the North to dictate the standards pursued. Now framed as a universal value and appealing to all, ‘development’ was also considered beyond the realm of political contention, a matter of technocratic reform rather than political struggle. It is one of the tragic ironies of the decolonization era that modern European statehood and economic growth through industrialization remained a quasi-​ unquestioned ideal of the elites ruling the new states.45 Cooption through education of central parts of the local elites, a key element of colonial control, had prepared the ground for the local appropriation of these concepts. Only very few scholars or elite politicians doubted the necessity to think in these ideals.46 Of course national liberation movements and intellectuals in the third world had a complex and ambivalent attitude towards late nineteenth-​century Western modernity and its nationalist, evolutionary, and social-​Darwinist undercurrents, oscillating between hatred and admiration, as can be exemplified by Sutan Sjahrir, one of the founders of the Indonesian nationalist movement: For me, the West signifies a forceful, dynamic, and active life. It is a sort of Faust that I admire, and I am convinced that only by utilization of this dynamism of the West can the East be released from slavery and subjugation. The West is now 42 ibid 79; John Martinussen, State, Market, Society: A Guide to Competing Theories of Development (ZED Books Ltd 1997) 56. 43 Arturo Escobar, Encountering Development:  The Making and Unmaking of the Third World (Princeton University Press 2011) (hereafter Escobar, Encountering Development); see also Balakrishnan Rajagopal, International Law from Below (CUP 2003) (hereafter Rajagopal, International Law from Below). 44 Sundhya Pahuja, Decolonizing International Law: Development, Economic Growth and the Politics of Universality (CUP 2011) (hereafter Pahuja, Decolonizing International Law). 45 Gilbert Rist, History of Development: From Western Origins to Global Faith (ZED Book Ltd 2008) 100 (hereafter Rist, History of Development). 46 Even a radical critique of Northern neo-​colonialism, such as Nkrumah, did not.

The Battle for International Law  13 teaching the East to regard life as a struggle and a striving, as an active moment to which the concept of tranquillity must be subordinated [ . . . ] Struggle and striving signify a struggle against nature, and that is the essence of the struggle: man’s attempt to subdue nature and to rule it by his will.47

Under the emerging development paradigm, economic, technical, and humanitarian assistance by one of the superpowers, or even by the former colonizers, was in high demand. It was accompanied by a Keynesian engagement of the state in economic development and a broadly shared acceptance of modernization theory held to provide a path to development that was shared in West and East.48 Beginning in the 1950s, Western-​dominated financial institutions, such as the World Bank, assumed a central role as lenders for large-​scale development projects.49 The UN declared the 1960s a ‘development decade’. Several states and multinational institutions created institutional structure for technical and financial support of these ‘development’ efforts and hence a system of development cooperation infrastructures emerged in West and East.50 This search for outside assistance tragically also required newly independent states to position themselves in the antagonistic Cold War environment. Both the US and the Soviet Union more or less openly attempted to create and preserve ideological, economic, and military ‘satellite-​states’ among the former colonies in Africa and Asia. While direct and open military interventions of the two superpowers and the former colonizers over the course of these three decades became less frequent, so called ‘proxy’ wars grew in numbers and intensity: the Vietnam War; the US invasions in Guatemala and the Dominican Republic; the Soviet intervention in Hungary and Czechoslovakia; US-​sponsored coups against socialist governments in Iran, Jordan, Congo, Brazil, Indonesia, and Ghana; numerous wars of national liberation inter alia in Algeria, Namibia, Angola, and Guinea; and perhaps most importantly, dozens of other post-​independence civil wars in Africa, Asia, and the Middle East with covert participation and support to warring factions delivered by neighbouring states, the US, the Soviets, Cuba, China, or the former European colonizers. The physical and economic violence unleashed in these liberation and post-​independence wars created new and deepened existing collective traumas, constituting a heavy burden for most of the new societies emerging out of the ruins of the old empires, and now being politically framed in the iron Gehäuse of the nation state. 47 Sutan Sjahir, Out of Exile (Greenwood Press 1969), quoted after Westad, The Global Cold War (n 41) 77. 48 Walt W Rostow, ‘The Stages of Economic Growth’ (1959) 12 The Economic History Review 1; Rist, History of Development (n 45). 49 Rajagopal, International Law from Below (n 43); Dann this volume; Devesh Kapur, John P Lewis and Richard C Webb (eds), The World Bank:  Its First Half Century, Vol 2:  Perspectives (Brookings Institutions Press 1997). 50 Philipp Dann, The Law of Development Cooperation (CUP 2013) 37 ff.

14  Jochen von Bernstorff and Philipp Dann

III.  Sites of battle At stake was both achieving formal political independence and a substantive reversal of international legal structures. The Western world, for the first time since the early nineteenth century, witnessed a fundamental challenge to the existing order and to its entrenched interests. The conflict over the shape, scope, and the mere possibility of such a reversal was a hard-​fought, long, and multifaceted battle. Sites of battle included not only contested re-​interpretation of existing concepts, new counter-​concepts such as ‘permanent sovereignty over natural resources’, requested reforms of the institutional landscape, and new multilateral treaty projects, but also the more fundamental issue of whether or not the old rules would continue to apply and bind the newly independent states.

1.  Delegitimizing alleged pre-​independence rules Generally, all new states faced the continued application of colonial-​era international law. Furthermore, numerous rules of customary international law appeared to enable the continuation of colonial relationships, such as the rules concerning the treatment of foreign nationals.51 Since its inception in 1949, the UN International Law Commission was concerned with questions over state succession, for example, the extent to which the new states were bound by international law that existed prior to their independence.52 The 1969 Vienna Convention on the Law of Treaties, the 1978 Vienna Convention on Succession of States in respect of Treaties, and the 1983 Vienna Convention on Succession of States in respect of State Property, Archives and Debts were all results of controversial debates between East and West on the one hand, and between North and South on the other.53 A number of third-​world scholars demanded a tabula rasa approach regarding alleged normative ties to pre-​independence rules and principles. But even these more radical doctrines remarkably justified their approach within the discursive structures provided by European international law, namely on the basis of consent theories.54 Their central argument was that the new states had not given their consent to the old law and henceforth these rules for them had no binding force.55 In this battle over the validity of the old law, Western diplomats and lawyers 51 See Georges M Abi-​Saab, ‘The Newly Independent States and the Rules of International Law: An Outline’ (1962) 8 Howard Law Journal 95, 101. 52 United Nations, Yearbook of the International Law Commission (United Nations 1949) 39; see also MG Maloney, ‘Succession of States in Respect of Treaties: The Vienna Convention of 1978’ (1978/​1979) 19 Virginia Journal of International Law 885, 900. 53 For example, the negotiations at the United Nations Conference on the Law of Treaties, Second Session Vienna, 9 April–​22 May 1969, Official Records, 90. 54 A Krueger, Die Bindung der Dritten Welt an das postkoloniale Völkerrecht (Springer 2017). 55 Brunner, Chapter 5, this volume.

The Battle for International Law  15 resorted to the argument that stability and continuity had to be preserved, insisting that with the creation of a new state this entity inevitably gives its tacit consent to the general legal norms of the society it joins. Again, the third world’s quest for membership in the form of legally normalized European-​style statehood came with a heavy price. Accepting the customary rules constructing statehood while rejecting other rules of customary law was a position difficult to defend. Therefore, relatively soon a second line of defence became the argument that if their recognition as new states by this order included acceptance of this order (as Western lawyers argued) then the new states should at least have the ability to reshape this order. Resolutions of the UNGA were seen as a central instrument for such a substantive reform of old Western international law.56 This triggered a fierce debate over the legal nature of such resolutions. It was fostered by Western scholars, who accused the third world of using what they termed ‘an automatic majority’ of decolonized states in the UNGA —​a derogatory term immediately criticized by Southern writers.57 While rejecting the arguments about the law-​making competence of the UNGA, the North also refused to recognize the validity of other norm-​setting initiatives by the decolonized South, not least through the formal ways of non-​ratification, reservations, and uncounted interpretative declarations and official statements. Thus, even today, the 1978 Vienna Convention on Succession of States in respect of Treaties merely consists of thirty-​ seven member states, and the 1983 Vienna Convention on Succession of States in respect of State Property, Archives and Debts has only fourteen.58

1.  Condemning interventions by the metropole as ‘aggression’ In their struggle against colonialism and neo-​colonialism, the newly independent states focused especially on the principle of sovereign state equality and the related

56 On the contemporary debate, see FB Sloan, ‘The Binding Force of a Recommendation of the General Assembly of the United Nations’ (1948) 25 The British Year Book of International Law 1; M Virally, ‘La Valeur juridique des Recommandations des Organisations Internationales’ (1956) 2 Annuaire Français de Droit International 66; Rosalyn Higgins, The Development of International Law Through the Political Organs of the United Nations (OUP 1963); Obed Y Asamoah, The Legal Significance of the Declarations of the General Assembly of the United Nations (Springer 1966); Richard A Falk, ‘On the ‘Quasi-​Legislative’ Competence of the General Assembly’ (1966) 60 American Journal of International Law 782. On the positions of Elias, see Landauer this volume. 57 See, for example, Mohammed Bedjaoui, ‘A Third World View of International Organizations. Actions Towards a New International Economic Order’ in Georges M Abi-​Saab (ed), The Concept of International Organization (UNESCO 1981); Mohammed Bedjaoui, Towards a New International Economic Order (Holmes and Meier Publishers 1979) 144. 58 United Nations Treaty Collection, Chapter XXIII:  Law of Treaties, Vienna Convention on Succession of States in Respect of Treaties; United Nations Treaty Collection, Chapter III: Privileges and Immunities, Diplomatic and Consular Relations, etc., Vienna Convention on Succession of States in Respect of State Property, Archives and Debts.

16  Jochen von Bernstorff and Philipp Dann rule of non-​intervention and the prohibition of the use of force.59 A  traumatic common experience of the colonized was becoming objects of violent interventions by colonial powers. Motives and forms of European interventions differed from colonizer to colonizer and over time. A common feature was to bring to bear superior forms of weaponry, transport, and communication directly or through chartered companies in search for new markets and raw materials, or out of religious zeal or national prestige. Resistance by local populations was often crushed with utmost brutality. Up until the 1960s, France and the UK in many instances refused to accept classic limits of military violence imposed by international humanitarian law, let  alone human rights obligations when (often using excessive military force) crushing rebellions and resistance in the colonies .60 The estimated death toll among local populations caused by direct colonial military interventions alone since the mid-​nineteenth century according to recent estimates was around five and a half million.61 Two main third world projects can be discerned:  The recognition of liberation movements against colonial rule and the entrenchment of a broad prohibition of the use of force and of a widely conceptualized non-​ intervention principle. What was at stake legally with regard to liberation movements against colonial rule was not the question as to whether taking up arms against a colonial regime for one’s own self-​determination was legitimate under international law.62 Western scholars traditionally had held international law to be indifferent to internal state violence and had more recently also clearly recognized the political struggle of liberation movements against colonialism. What the third-​world authors propagated instead was a full internationalization of such conflicts, with a jus ad bellum for liberation movements and the depiction of colonial powers as external ‘aggressors’, as well as the full recognition of liberation wars under international humanitarian law. By internationalizing the conflict they could claim a status of combatants under international humanitarian law—​which was a much more favourable status than being treated as ‘criminals’ in a purely internal conflict. This points to the larger issue behind the debate. The battle for internationalization of wars of national liberation was also a battle about identity and the recognition of the historical justification for freedom fights and rejection of the colonial project as illegitimate aggression.63 The full recognition of national liberation movements 59 Gaetano Arangio-​Ruiz, The United Nations Declaration on Friendly Relations and the System of the Sources of International Law (Springer Netherlands 1979) 153. For a comparison with current positions, see Antony Anghie and Bhupinder S Chimni, ‘Third World Approaches to International Law and Individual Responsibility in Internal Conflicts’ (2003) 2 Chinese Journal of International Law 77–​103,  81. 60 Fabian Klose, Menschenrechte im Schatten kolonialer Gewalt:  Die Dekolonialisierungskriege in Kenia und Algerien 1945–​1962 (DeGruyter 2009) (hereafter Klose, Menschenrechte). 61 Westad, The Global Cold War (n 41) 73. 62 Bernstorff , Chapter 2, this volume. 63 ibid.

The Battle for International Law  17 as actors in an international armed conflict came in 1977 after a third-​world battle led by Abi-​Saab during the entire span of the negotiations over the two Additional Protocols to the Geneva Conventions.64 Newly independent states also desired protection against both intervention by European states as well as by the the two superpowers through a ban on economic and political coercion in international relations. Their aim thus was to expand the scope of the principles of non-​intervention and the prohibition of the use of force.65 Newly independent states pushed for their demands in different fora, with varying success. In the UNGA they were able to adopt a number of resolutions that aimed to solidify the principle of non-​intervention in the UN Charter,66 though the legal effect of these resolutions remained contested and later raised increasing Western opposition.67 In a different venue, negotiations about the Vienna Convention on the Law of Treaties offered the opportunity to define the notion of ‘coercion’ in Arts 51 and 52. Newly independent states demanded a broader understanding of the concept beyond military coercion, but met with fierce resistance from Western countries.68 At the same time, many of the new governments in the South entered into bilateral military assistance treaties with the former metropole or one of the two superpowers, leading to a worldwide US military presence and to numerous military interventions as former metropoles assisted cooperative governments in the Global South in cases of civil unrest and revolution.

2.  Banning racial discrimination and establishing human rights as a discursive ‘weapon’ Banning racial discrimination was a crucial element in the process of redirecting international law, for which racial inequality had been an essential discursive structure. During this era, the UNGA adopted the 1965 Convention on the Elimination 64 On this battle, see Georges M Abi-​Saab, ‘The Third World Intellectual in Praxis: Confrontation, Participation, or Operation Behind Enemy Lines?’ (2016) 37 Third World Quarterly 1957; on the role of Soviet government in these discussions, see Bowring this volume. 65 See Official Records of the General Assembly, Eighteenth Session, Sixth Committee, 789th Meeting, UN Doc A/​C.6/​SR.789 para 25. 66 Declaration on the Inadmissibility of Intervention in the Domestic Affairs of States and the Protection of their Independence and Sovereignty, GA Resolution 2131 (XX) (21 December 1965) (adopted without dissent, with one abstention); Declaration on Principles of International Law Concerning Friendly Relations and Co-​operation Among States in Accordance with the Charter of the United Nations A/​Res/​2625 (XXV) (24 October 1970). On these efforts, see Barry Carter, ‘Economic Coercion’ in Rüdiger Wolfrum (ed), Max Planck Encyclopedia of Public International Law, paras 6–​9. 67 GA Res 42/​173, entitled Economic Measures as a Means of Political and Economic Coercion against Developing Countries of 11 December 1987, used similar language as the 1965 Declaration, but the recorded vote was 128 States for, 21 against, and 5 abstaining. 68 Richard D Kearney and Robert E Dalton, ‘The Treaty on Treaties’ (1970) 64 American Journal of International Law 495, 532–​35.

18  Jochen von Bernstorff and Philipp Dann of All Forms of Racial Discrimination (CERD) and the 1973 International Convention on Suppression and Punishment of the Crime of Apartheid. CERD, however, was driven primarily by European and Israeli actors, and hardly constituted a strategically pursued project of third-​world governments.69 Establishing a human rights machinery within the UN as a discursive tool to criticize colonialism in all its forms, in contrast, played a more central role for the third world. Except for India, the legally non-​binding Universal Declaration of Human Rights, for obvious reasons, had not received substantial input from the colonized states.70 Simultaneously, the remaining European colonial powers in the late 1940s and early 1950s launched various initiatives in the UN to define colonial regimes as a form of polity, which had to remain outside the reach of international human rights norms; these culminated in a joint proposal to insert a colonial exception clause into the new human rights covenants.71 This proposal was defeated in the Third Committee by an early demonstration of third-​world governmental solidarity in favour of the colonized. Subsequently, the newly independent states fiercely engaged with the negotiations over what would become the major UN human rights covenants and their adoption in 1966 (ICCPR and ICESCR). It was, in fact, mainly the decolonized South in the 1950s that pushed ahead with the human rights discourse at the UN.72 In reaction to colonial injustice and racial suppression, for most of the newly independent states the right to self-​determination and human rights were two sides of the same coin.73 In reaction to colonial rebellions in Africa, in the 1950s and 1960s both the UK and France established systematic practices of torture, summary executions, collective punishment, and arbitrary detention. As a result, independence movements like Algeria’s FNL realized that discussing such atrocities in an international forum, using the language of human rights, would strengthen their anticolonial struggles within the UN.74 During the negotiations over the two UN human rights treaties, many third-​world interventions also aimed to legally entrench the right

69 Add to this that the Anti-​Apartheid Convention certainly had an important symbolic dimension, but which was hardly put to use; see Giladi this volume. On the ominous role of the ICJ with regard to apartheid, see Venzke this volume. 70 Mary A Glendon, A World Made New: Eleanor Roosevelt and the Universal Declaration of Human Rights (Random House Inc. 2001); Jochen von Bernstorff, ‘The Changing Fortunes of the Universal Declaration of Human Rights: Genesis and Symbolic Dimensions of the Turn to Rights in International Law’ (2008) 19 The European Journal of International Law 903 ff. 71 Roland Burke, Decolonization and the Evolution of Human Rights (University of Pennsylvania Press 2013) 41 (hereafter Burke, Decolonization). 72 The role of human rights in the decolonization period has been intensely debated—​pitting the view of their centrality (Burke) against a ‘revisionist’ reading of the history, according to which human rights in this era actually served a fairly limited purpose (Moyn). On this debate, see Hoffmann and Assy this volume, who argue that the historical evidence has been greatly researched, but its interpretation now remains ultimately inconclusive. 73 Roland Burke, ‘ “The Compelling Dialogue of Freedom”:  Human Rights at the Bandung Conference’ (2006) 28 Human Rights Quarterly 947, 962–​64 (hereafter Burke, ‘Human Rights’). 74 Klose, Menschenrechte (n 60).

The Battle for International Law  19 to self-​determination as the fundamental basis for the realization of human rights. Leading governments of the ‘decolonized’ states argued that human rights could only be fully realized within an environment free from colonial and post-​colonial dominance.75 This attempt to establish a legal connection between the right to self-​determination and human rights was formally rejected by Western states largely due to its collective dimensions, which were allegedly incompatible with a treaty project establishing individual rights and freedoms. However, Western governments sensed early on that the anti-​colonial and revolutionary dimension of linking self-​determination with human rights also contained a volatile undercurrent of unrest for both the still-​existing colonial empires and for contemporary racialized forms of rule in the former white settler colonies in South Africa and Rhodesia. This discord and anger also permeated the Palestinian quest for self-​ determination and non-​discrimination. Eventually, self-​determination was included in the common Art 1 of the two key UN human rights Covenants.76 After independence, many of the new governments often led by former independence fighters themselves established authoritarian political systems, using the repressive and violent potential of the nation state form inherited by the colonizers. They joined the former colonizers and the USSR in using human rights as a diplomatic ‘weapon’ within the UN, while many third-​world governments more or less systematically ignored human rights obligations in various sectors of their own newly formed governmentss. Such aspects of hypocritical and selective insistence on human rights obligations thus constituted a common feature of the emerging human rights discourse in the UN during the Cold War-​era, with the two superpowers all great powers having a problematic human rights record either at home or because of their violent interventions in their peripheries, or both.77 The fact that many third-​world leaders adopted this hypocritical practice in their own foreign policy led to the following polemical remark by the Tanzanian President Julius Nyerere, who criticized his African colleagues: ‘we will soon be tolerating fascism in Africa as long as it is practised by African governments against African peoples’.78 Hence, the predominant use of human rights language by all governments within the UN often came with an instrumental dimension. Nonetheless, formal decolonization and the struggle against Apartheid in South Africa had a major impact on the evolution of human rights as the dominant ‘lingua franca’ of international morality; all of this began

75 Burke, ‘Human Rights’ (n 73) 947, 962–​64. 76 Jörg Fisch, The Right to Self-​Determination (CUP 2015). On the problematic role of the US government in the conceptualization of this right (and its conception as human right), see Barsalou this volume. 77 Jan Eckel, Die Ambivalenz des Guten: Menschenrechte in der internationalen Politik seit den 1940ern (Vandenhoeck & Ruprecht 2014). 78 Quoted in Burke, Decolonization (n 71) 57.

20  Jochen von Bernstorff and Philipp Dann with the immediate reception and discursive use of the Universal Declaration in the UN during the 1950s.79

3.  Reconfiguring the world’s economic system As former colonies increasingly secured formal political independence, attention turned steadily to the economic dimension of self-​determination; economic sovereignty became a key concern. One characteristic feature of debates was that the notion of ‘development’, which had been in use only for a fairly short time, had almost immediately become popular also among local elites. Together with the goal of economic growth, the term provided overarching and largely uncontested paradigms of understanding and action.80 However, within the confines of these paradigms, a battle over how to reconfigure the world’s economic system unfolded. In this, as in other areas, a variety of battle sites emerged with similar battle lines which mostly pitted Northern against third-​world protagonists, with the Soviet bloc sometimes as an important partner of the third world. One element of the increasingly open rifts between North and South was the shift from a more technical economics-​perspective that had informed discussions in the 1950s to a more political economy and political take throughout the 1960s and 1970s. But in all areas, political or economic positions were often recounted in legal debates and legal instruments. The first important site concerned the question of natural resource extraction. As colonies had been economically structured to serve the centre’s quest for raw materials, colonial economies were geared towards natural resource extraction. The pertinent question of who should have the final say over those industries soon emerged. Third-​world governments understandably demanded ultimate control, and hence ‘permanent sovereignty over natural resources’.81 During European colonial expansion, it was common for colonial powers to secure the exploitation of natural resources through contracts with private investors from the metropole (concessions) and via the imposition of non-​reciprocal, so-​called ‘unequal’ treaties.82 The independence of former colonies thus subjected the continued 79 While Burke generally makes this point, he somewhat artificially and ultimately unconvincingly differentiates between the ‘good’ early Third World embrace of human rights and democratic ‘self-​ determination’ language in the 1950s, and its more reprehensible instrumental usages in the 1960s. 80 On the astonishing success or lure of the development paradigm but also on the few more sceptical voices ‘from below’, see Rajagopal, International Law from Below (n 43); Bret Benjamin, Invested Interests:  Capital. Culture, and the World Bank (University of Minnesota Press 2007) (hereafter Benjamin, Invested Interests); Escobar, Encountering Development (n 43) 19. 81 On the evolution of this concept, see Pahuja, Decolonizing International Law (n 44); Nico Shrijver, Sovereignty over Natural Resources: Balancing Rights and Duties (CUP 1997). 82 See in the contemporary literature Ram P Anand, New States and International Law (Vikas Publishing House 1972) 23 (hereafter Anand, New States; for current accounts, see Anghie, Imperialism (n 4) 67 ff; Matthew Craven, ‘What Happened to Unequal Treaties? The Continuities of Informal

The Battle for International Law  21 enforceability and in fact validity of both granted concessions and such treaties to question.83 The most prominent and contentious legal issue here was the question of the fate of colonial concessions for resource extraction granted by the metropole to Western companies.84 Western international lawyers claimed that these concessions were ultimately the property of private investors who were protected by the supposedly long-​standing ‘doctrine of acquired rights’. The fact that Western investors now operated on the territory of a foreign jurisdiction made necessary a complex re-​arrangement of the legal relationships between the investor and the involved governments abroad and at home.85 Similar to most contentious aspects of international law analysed in this volume, Western international lawyers provided the respective argumentative redundancies in order to secure the interests of the industrialized West; or in more concrete terms, scholarly contributions and expert advice helped to ensure that necessary re-​ arrangements would either lead to new Western business opportunities, or ‘full compensation’ of those lost. The strategic transformations in the field of colonial concessions ultimately gave birth to a new system of investment protection.86 With well-​known Western international lawyers in the role of leading arbitrators, early arbitral awards on disputes over nationalization projects helped prevent the application of domestic law of the newly independent states regarding such disputes.87 During this battle Western scholars advanced not only the theory of ‘sanctity of acquired rights’ but also of the ‘internationalization’ of investment contracts. Strategically, this Western move aimed to exclude the domestic law of the new host states, and thus their regulatory frameworks, from the scope of applicable law in disputes over regulatory interventions by the new governments. Third-​world international legal scholars criticized the rise of the ‘theory of internationalization’ as well as the sudden discursive rise of the ‘acquired rights’ doctrine as an alleged fundamental principle of international law. In the ILC, in the context of deliberations on the codification of the laws of state succession, Bedjaoui fiercely objected to the insertion of the principle of acquired rights.88 Western ILC members accused Bedjaoui of being too ‘political’ and lacking the required ‘objectivity’—​a typical reaction of Western authors to substantive protest voiced by third-​world international lawyers.89

Empire’ (2005) 74 Nordic Journal of International Law 335, 344; Anne Peters, ‘Unequal Treaties’ in Rüdiger Wolfrum (ed), Max Planck Encyclopedia of Public International Law (2007). 83 See debates in the International Law Commission, for example, in United Nations, Yearbook of the International Law Commission (United Nations 1962) 4. 84 See Craven Chapter 4, and Brunner Chapter 5, this volume. 85 Craven Chapter 4, this volume. 86 ibid. 87 Sornarajah Chapter 7, this volume. 88 Brunner Chapter 5, this volume. 89 ibid.

22  Jochen von Bernstorff and Philipp Dann Configuration of the international trading system was another central battle site. While it was uncontested that trade would be central to the economic success of the former colonies, the basic understanding of the systems and terms of trade became increasingly contested. Modernization theory and the idea that the third world should replicate Western history, which had dominated the early thinking, was considered increasingly unconvincing in the third world, considering the experience of Latin American states from the nineteenth century onward. Instead, Latin American authors in particular had formulated a counter-​ narrative in the form of dependency theory, which rebalanced understanding of responsibilities for the problems facing third-​world economies.90 Institutionally, third-​world governments complemented the rise of dependence theory with the founding of UNCTAD in 1964 and the Group of 77. Importantly, this debate was over the understanding of the role of multinational corporations—​fought along North–​South battle lines.91 Regularly owned by Western actors and very often with histories reaching back to colonial foundations and heritages of violence and exploitation, the multinationals were increasingly seen by third-​world writers as harmful, rather than beneficial, for their economies, as Western economists and governments would claim. Discussions culminated at the 1972 UNCTAD III conference held in Chile, where not just the understanding of corporations, but also the question of their regulation, was discussed.92 While Western states argued that their role was best dealt with in domestic law of the hosts states, many Southern states favoured an international instrument to regulate their conduct. But even though third-​world governments succeeded in placing the topic on the agenda and created a Commission to study the role of multinational corporations, they were not successful in creating a binding instrument to regulate their activities. Additionally, a debate unfolded over the sources and forms of financial assistance to the South that had an important anchoring in legal questions.93 As much as the general assumptions were that trade would, over time, allow the newly independent states to become equal partners in the global economic system, in these early years of formal independence, financial support from the North was considered essential by most actors.94 In fact, the final communiqué of the Bandung conference opened with a call for further economic cooperation and assistance. However, the source of such assistance was a major point of contention and struggle. Third-​world governments demanded multilateral institutions of support and, in particular, argued that the UN should provide funds. Western governments

90 David K Fieldhouse, The West and the Third World (Blackwell 1999) ch 6. 91 Jennifer Bair, ‘Corporations at the UN?’ (2015) 6 Humanity 159; Pahuja and Saunders Chapter 6, this volume. 92 ibid. 93 See Dann Chapter 12, this volume. 94 On the prescience or apprehension of a few critical voices (such as Fanon or Nkrumah), see Benjamin, Invested Interests (n 80).

The Battle for International Law  23 instead preferred bilateral aid. While the third world was unsuccessful in pushing for UN capital assistance, this conflict led Western states in a counter-​move to turn the World Bank into a development agency. Frequently during this era, the West came under pressure from the third world, public opinion, and the Soviet bloc in the UN. After having derailed and ignored new institutional blueprints and creations with equitable representation by the third world, the West then took up the respective topic within an institution under its own control.95 Insulated against meaningful Southern participation, the issue of poverty in the third world could now be framed by the World Bank under the investment-​friendly ‘growth’ and ‘development’ paradigms. Many third-​world governments, in their quest for Western style modernization and industrialization, quickly became ‘debtor’ states due to volatile prices for the small number of commodities, upon the export of which their internal economies were geared.96 They now heavily depended on the World Bank and other Western financial institutions, making them ripe for further Western interventions into their political, economic, and social systems.

4.  Drafting a new Law of the Sea and the quest for sharing a ‘common heritage of mankind’ A further point of discord was the attempt since the 1950s and 1960s to comprehensively codify the law of the sea. This process was only completed in 1982 by the adoption of the UN Convention on the Law of the Sea (UNCLOS). While initially the negotiations were strongly influenced by the Cold War and military questions of strategic importance, during the decolonization era, UNCLOS became the object of a globally controversial debate over justice and redistribution. The core of the redistribution debate concerned the conflict over who was economically entitled to newly discovered maritime resources, for example, minerals and fisheries in the deep seabed. In 1970, UNGA adopted Resolution 2749 (XXV), which declared the deep-​sea floor as the ‘common heritage of mankind’ and planned the common globally administrated economic use of the deep-​sea floor.97 Resulting benefits were supposed to be used for the ‘development’ of third-​ world countries. UNCLOS negotiations included numerous divisive issues that pitted socialist states against capitalist states and big coastal states against maritime have nots, including the breadth of the continental shelf, the scope of a future 95 See Dann Chapter 12, this volume. 96 Already in the 1930s, Carl Schmitt had sensed that the fundamental ‘non-​civilized’/​‘civilized’ distinction of European international law was, under US influence, being gradually replaced by a new dichotomy between ‘debtor states’ and ‘creditor states’; see Carl Schmitt, ‘Völkerrechtliche Formen des modernen Imperialismus’ in Positionen und Begriffe (Duncker & Humblot 1940) 164; cf on public debt and the Third World, Pahuja, Decolonizing International Law (n 44). 97 UNGA, Declaration of Principles Governing the Sea-​Bed and the Ocean Floor, and the Subsoil Thereof, Beyond the Limits of National Jurisdiction, UNGA A/​RES/​2749 (XXV) (12 December 1970).

24  Jochen von Bernstorff and Philipp Dann treaty, and the concrete regime governing the seabed.98 Large G77 coastal states like India had pushed for an extension of economic zones of exploitation for the coastal states. One of the first effects of the seabed conflict was the broken relationships between land-​locked states and smaller coastal states.99 Another casualty was the idea of redistribution based on a sustainable joint use and administration of a ‘Common Heritage of Mankind’ being denounced as ‘socialism’ by Cold War Western leaders.100 Additionally, the resulting enormous extension of exclusive economic zones and continental shelves was a Pyrrhic victory for the third world. For many newly independent states now opened their extended zones for industrial Organisation for Economic Co-​operation and Development (OECD)-​based fishing fleets through licences in the quest to generate governmental income, or being unable to fight illegal fishing by and environmental pollution from foreign fishing fleets in these zones. By limiting international administrative structures to the ecologically and economically less-​relevant seabed, capitalist exploitation of the ocean’s resources in all its other areas could take its new and more excessive forms.101 It was a given that Western governments engaging in these battles knew it would be much easier in the future to be granted access to these national zones of exploitation when dealing with individual states from the third world on a bilateral basis, rather than having to cooperate with a centralized international institution administering such resources.102 The implementation of the thus transformed law of the sea regime, despite various substantive norms in UNCLOS on sustainable fishing and environmental protection, destroyed not only dozens of societies along the coasts of the Global South that depended economically on cultivating traditional fisheries, but it also actually led to the ecological ‘death’ of the seas, predicted since the late 1970s.103 Innovative third world strategies from this era to pursue projects of joint moderate exploitation of natural resources both on land and sea under strict scrutiny of equitable international institutions, including mechanisms of redistributing generated incomes, were never actually realized.104

98 On this battle, see Ranganathan Chapter 1, this volume. 99 Pointing to the lack of solidarity between the third and the ‘fourth world’ W Vitzthum, ‘Materiale Gerechtigkeitsaspekte der Seerechtsentwicklung’ in Alexander Proelß (ed), Kleine Schriften (first published 1980, Duncker und Humblot 2017) 128; on the position of the Third World see Ram P Anand, Legal Régime of the Sea-​Bed and the Developing Countries (Sijthoff 1975) ch 5. 100 See Ranganathan Chapter 1, this volume; on the exploitation bias of the regime, see also I Feichtner, ‘Sharing the Riches of the Sea’ (2019) 30 European Journal of International Law (forthcoming). 101 cf Ranganathan Chapter 1, this volume. 102 Information from an interview conducted with a former Western delegate to the UNCLOS negotiations. 103 For a contemporary voice Wolfgang Graf Vitzthum (ed), Die Plünderung der Meere:  Ein gemeinsames Erbe wird zerstückelt (Fischer 1981). 104 Martii Koskenniemi and Marja Lehto, ‘The Privilege of Universality: International Law, Economic Ideology and Seabed Resources’ (1996) 65 Nordic Journal of International Law 533.

The Battle for International Law  25

IV.  Protagonists in battle 1.  Scholars of the third world The battle over international law was fought in various places—​on open battle fields as much as on hilly, uneven, unclear terrain, with open face or in disguise. It was a battle waged in diplomatic fora, on political podia as much as in academic journals and at conferences. Who were the international legal scholars that participated in the battle for international law and how did they position themselves methodologically? What role did institutional actors, for example, the International Court of Justice (ICJ), the UN, or the World Bank, play? A broad and diverse range of authors, including inter alia RP Anand (India), TO Elias (Nigeria), Mohamed Bedjaoui (Algeria),105 Charles Alexandrovicz, Upendra Baxi, Syatauw J, Singh N (all India),106 U Umozurike (Namibia),107 George Abi-​ Saab (Egypt) or Francis Deng (South Sudan) from the third world, but also some Western authors, such as Charles Chaumont,108 Richard Falk, Bert Röling, and Konrad Ginther among others, as well as Soviet writers such as Morozov and Starushenko,109 attacked central doctrines of international law as instruments of colonialism or simply as outdated.110 Most of them belonged to the younger generation, were in their 30s or 40s, and the majority of the Southern scholars that were actually heard had received an education in the West. They were on unfamiliar terrain and had few precursors to look at. The epistemic imbalance of the field was tremendous. While the UN provided third world governments a platform on which to present their political positions, the academic world (universities, journals, conferences) offered a much less inviting area for third world voices to be heard. Nonetheless, a small number of voices did enter the conversation. Criticism of European international law was formulated on different levels and with different strategies in mind. Some fought using a more moderate ‘contributionist’ strategy, conceiving international law as an important but malleable structure, which the new states could further develop into a truly universal order that served 105 On these three authors, see the contributions by Singh, Landauer, and Öszu this volume. 106 J Syatauw, Some Newly Established Asian States and the Development of International Law (Martinus Nijhoff 1961); N Singh, India and International Law (Publishing Company 1969); Anand, New States (n 82); Ram P Anand (ed), Asian States in the Development of Universal International Law (Vikas Publications 1972); Prakash Sinha, New Nations and the Law of Nations (Sijthoff 1967); Umozurike, Colonialism (n 35). 107 See Gevers Chapter 17, this volume. 108 On Chaumont, see Tourme-​Jouannet Chapter 16, this volume (also with reference to the larger number of French authors, which supported the idea of a ‘droit international du developpement’). 109 See Bowring Chapter 18, this volume. 110 The mostly American-​driven and -​funded ‘law and development’ movement was equally as concerned with the role of law in the development process, but was less so with international than with domestic law reform. See David M Trubek, ‘Toward a Social Theory of Law: An Essay on the Study of Law and Development’ (1972) 82 Faculty Scholarship Series Yale Law School 1; on Western perspectives on the battle see Koskenniemi in the Epilogue.

26  Jochen von Bernstorff and Philipp Dann all. Others were more sceptical and pursued a rather radical, critical strategy, considering the existing order as profoundly unjust and difficult to change.111 Many of the writers mentioned here became very important advisors to their respective governments or took on highly influential positions.112 Elias became the first non-​ Western President at the ICJ, Bedjaoui served several times in the ILC and the ICJ, and Anand and Abi-​Saab played important roles as advisors to their governments and in various UN bodies. Their performance and arguments in these roles surely changed over time and were highly dependent on context; Bedjaoui was the most critical author, while Anand or Elias, who were equally clear in their demand for profound changes in the international legal order, took more conciliatory approaches to contemporary international legal structures. The history of international law played a major role in the work of many third world legal scholars in the 1950s and onwards. It was a process of redescription as much as re-​appropriation that served a number of different functions. Many scholars put effort into describing the pre-​colonial existence of international law of non-​Western origins.113 Outlining complex normative systems in ancient Indian, African, or Chinese writings demonstrated that the modern, merely European, system of international law as it emerged in the eighteenth and nineteenth centuries to the exclusion of others was a doctrinal aberration and usurpation born more of ignorance than normative prominence.114 It was an attempt to demonstrate the much broader and common universal roots of public international law, thereby connecting Western and non-​Western conceptions. At the same time, critical scholars in the field used historical and materialist analysis to redescribe colonialism as a history of exploitation of peoples from the third world. In these works, all standard justifications of colonialism, for example, religious, ‘civilizational’, racial, and technical superiority, were deconstructed as either well-​intended or cynical strategies of domination. For those like Anand, classic European international law, with its implicit civilizational hierarchies, had been constructed by colonial powers in order to exclude and dominate non-​European nations. In more concrete

111 On this distinction, see Gevers Chapter  17, this volume. Also M Mutua, ‘What is TWAIL?’ (2000) Society of International Law Proceedings 31; Obiora C Okafor, ‘Newness, Imperialism, and International Legal Reform in Our Time A Twail Perspective’ (2005) 43 Osgoode Hall Law Journal 176; James T Gathii, ‘Africa’ in Bardo Fassbender, Anne Peters and Daniel Högger (eds), The Oxford Handbook of the History of International Law (OUP 2012) 407 (hereafter Gathii, ‘Africa’). 112 For reflections on such roles today, see Luis Eslava and Sundhya Pahuja, ‘Beyond the (Post-​) Colonial’ (2012) Verfassung und Recht in Übersee (VRÜ) 195. 113 On Elias in this regard, see Landauer Chapter 14, this volume; see also Charles H Alexandrowicz, An Introduction to the Law of Nations in the East Indies (Clarendon Press 1967); KA Nilakanta Shastri, ‘International Law and Relations in Ancient India’ (1952) Indian Yearbook of International Affairs 97; Bhupinder S Chimni, ‘International Law Scholarship in Post-​Colonial India’ (2010) Leiden Journal of International Law 27 with further references for India. 114 As a current argument along these lines, see Onuma Yasuaki, International Law in a Transcivilizational Perspective (CUP 2017) 59.

The Battle for International Law  27 terms, authors analysed the function of various doctrines and principles of international law in the colonial enterprise: Thus even a cursory look at the history of international law leaves no doubt about the Eurocentric nature of this law developed by and for the benefit of the rich, industrial, and powerful states of Western Europe and the United States. The vast majority of peoples had neither any voice nor any right and were meant to be exploited and, if necessary, colonized to serve the interests of their masters.115

It is this historically grounded critique of colonial legacies that prepared the ground for a new international law after decolonization, and fifty years later also inspired the Third World Approaches to International Law—​a movement for a new critique of post-​millennium international legal structures. But historical analysis was also used in more pragmatic ways to provide arguments in concrete court cases, for example, Bedjaoui argued the Western Sahara case at the ICJ and delved deeply into the history of the terra nullius doctrine. It was used also in more scholarly doctrinal skirmishes, for example, in support of the argument that urgent changes were now needed, including the need for law-​making powers of UNGA. Ultimately, this re-​appropriation of history also served the broader aim of reclaiming identity, rejecting the colonial idea of peoples without history, and concretely the rehabilitation of Africa.116 Another inroad for scholars of the third world was the standard assumption that international law (like any law) had to reflect realities and adapt to global sociological changes.117 They declared that decolonization was a dramatic change that demanded nothing less than a new international law.118 Such arguments could tap into a standard anti-​formalist narrative of international law lagging behind important societal changes. As this volume shows, however, this type of narrative is much more likely to impact on legal discourse if it is supported by hegemonic powers. Moreover, some references to community values, such as human rights and solidarity among nations, had mushroomed in 1940s and 1950s Western legal scholarship, and could now be recycled for the concrete causes of the third world struggle.119 But here, too, different varieties of the turn to sociology can be discerned. Sociological inquiries were particularly popular at the Ivy League schools of the eastern US, even though pragmatic voluntarism might have dominated much of

115 Anand, New States (n 82) 45. 116 Gathii, ‘Africa’ (n 111) 410, 414. 117 Martii Koskenniemi, The Gentle Civilizer of Nations (CUP 2009) 474 (hereafter Koskenniemi, Gentle Civilizer). 118 Anna Krueger, Die Bindung der Dritten Welt an das Völkerrecht (Springer 2017). 119 Umut Özsu, ‘ “In the Interests of Mankind as a Whole”: Mohammed Bedjaoui’s New International Economic Order’ (2015) 6 Humanity 6 (hereafter Öszu, ‘Mankind’).

28  Jochen von Bernstorff and Philipp Dann the Western practice of international law.120 At Yale, where (among others) Elias, Anand, and Deng studied, and at other schools, the approach to international law was influenced by legal realism in domestic law and built on a close exchange with the international relations field. Formalism generally had lost its hold on legal doctrine, the change was greatest within the field of US international law, where policy guidance had become more important. Those who received their legal education in France, most prominently Bedjaoui, took a somewhat different view on how to understand and integrate facts. influenced by the neo-​Marxist analysis of international legal structures as it was developed by the Reims school in international law (headed by Charles Chaumont),121 Bedjaoui like Chaumont did see a need for a new international law and based his analysis on a highly critical politico-​economic analysis of both the history and the status quo of the international legal order. Solidarity was a value they endorsed for a new international law, but unlike George Scelle, the famous French interwar scholar, they completely dismissed it as a description of the past and current status quo of international law. Both Bedjaoui and Chaumont replaced Scelle’s interwar socio-​biological eclecticism with a highly realistic analysis of the relationship between the interests of Western economic elites and prevailing international legal structures, but without giving in to determinist approaches.122 International law could potentially become a different and less unjust international legal order with new norms re-​regulating and constraining both public and private economic, military, and political power. An important difference between these two approaches (Yale or Reims) can be seen in the extent to which they took into account the role of global capitalist structures in producing and stabilizing inequalities. This is exemplified by those authors influenced by the ‘New Haven School’ who operated squarely within the liberal paradigm, such as Elias, while the more radical materialistic thinking practised in ‘Reims’ and elsewhere during this time perhaps enabled writers to develop more critical voices like Bedjaoui.

2. Institutions International institutions, such as the UN or the World Bank, were important protagonists in the battle for international law, too. Existing institutions became

120 Koskenniemi, Gentle Civilizer (n 117) 474. 121 On Chaumont, see Tourme-​ Jouannet Chapter  16, this volume and Martti Koskenniemi, ‘Regarding “Méthode d’analyse du droit international” by Charles Chaumont (1975-​I): Dialectics and International Law’ (2015) 1–​2 Revue Belge de Droit International 330. On Bedjaoui, however, without emphasizing the Reims school, see Öszu, ‘Mankind’ (n 119). 122 On Chaumont’s legal theory and respective methodology, see Tourme-​Jouannet Chapter 16, this volume.

The Battle for International Law  29 themselves embattled as states from North and South were fighting to preserve or gain representation and control of them, partly turning institutional law itself, including rules of procedure of plenaries and executive councils, into a weapon. Secretariats of international institutions were also important voices and actors in their own right and in the political and legal debates, lending legal and epistemic authority to the positions they supported. As most international institutions had been founded before the decolonization era, third world countries first had to join and often to eke out rights to equal representation and fair participation, which soon became a central part of the third world agenda. But the newly independent states were facing different challenges in different organizations. In the UN, for example, it was not so much a question of accession and representation for the newly independent states as such, but rather the fact that the UN Charter had established institutional hierarchies that favoured the great powers through their status in the UN Security Council. As the Soviets blocked the work of the Security Council with vetoes, the West for a short while favoured a careful strengthening of the role of the UNGA and its Committees.123 Ultimately, however, the West sternly blocked all efforts to strengthen the UNGA’s legislative role via an exercise of ‘boundary drawing’, holding that the UNGA was a ‘political’, not a ‘legal’, forum.124 Nonetheless, UNGA resolutions became a powerful policy tool for the newly independent states through their role in discrediting colonialism and racialized white settler rule. Additionally, by engaging with the UN, the third world governments could advance their positions while the institution simultaneously shaped them.125 In international financial institutions like the World Bank, fair representation was even more difficult—​and proved ultimately elusive. Voting powers and other organizational rights in the Bank (as in the IMF and in other development banks created in these years) were insulated from the changes in membership. In all of these institutions, institutional law was itself an important battle ground. The (re-​) interpretation of the competences of the UNGA or of the World Bank’s executive board was instrumental in advancing the interests of one group of members—​or the other. An important additional strategy of third world countries was to reshape the established landscape by creating new institutions. In particular, they used the UN to ‘institutionalize’ issue areas. A prime example is UNCTAD, which provided a new arena to advance economic ideas that had no place in the Western dominated General Agreement on Tariffs and Trade (GATT) context. The merger of different programs of technical assistance in the UN Development Programme (UNDP) is another example, although the third world’s demand to establish a UN fund for 123 See the UNGA resolution ‘Uniting for Peace’ (1950); see also Sinclair Chapter 11, this volume. 124 On ‘boundary drawing’ see the first section of this chapter, and on the debate over the status and repercussions of UNGA resolutions in the field of international humanitarian law, see Bernstorff, Chapter 2,this volume. 125 See Sinclair Chapter 11, this volume.

30  Jochen von Bernstorff and Philipp Dann financial assistance next to or instead of the World Bank failed.126 Western states not only blocked these institutional activities, but started a smart discursive counterattack by strategically shifting the responsibility for the contentious issue of ‘financial assistance’ to newly independent states to an institution under firm Western control. A good example of such a reshifting exercise was the creation of IDA as a soft-​lending arm of the Bank that would support the third world. Even though this was portrayed as an accommodating programmatic shift in the interest of newly independent states, it rather cemented the institutional inequality by increasing the power of those states that provided funds.127 The idea of functional specialization and disaggregation of the third world agenda, including the New International Economic Order (NIEO), into various policy fields and institutions was another Western counter strategy. In particular, the separation of ‘political’ (UN) and ‘economic’ (international financial institutions) organizations provided an underlying understanding that matters could be dealt with from a technical expertise perspective without political positioning on the demands of the third world. This provided an institutional basis for argument that would be used to delegitimize demands and ideas from Third Word scholars and politicians that had been adopted in the ‘politicized’ UN, compared to the allegedly ‘rational’ and expertise-​driven financial institutions or specialized agencies.128 Gaining representation in the ICJ was also difficult and took time, as limited positions had to be re-​allocated. Considered a defender of the old European international law, third world states nonetheless invested much strategizing and political capital into gaining a fair representation at the ICJ and the shock over the 1966 Liberia v South Africa judgment only strengthened their resolve.129 But it took till the 1970s to create an approximation of fair representation—​but by then the reputation and authority of the Court had already drastically decreased. Equally important was the use and stabilization of epistemic authority. International institutions in these years gained a central position in the international system not only as fora where states would meet, but also as increasingly autonomous actors or as indirect and effective multipliers of their principal agent’s positions. International institutions took sides in the battle for international law. Third world governments assumed that over time membership would translate into policy orientation and hence that international institutions would eventually support their positions by advancing new law to support their economies, creating helpful 126 See Olav Stokke, The UN and Development:  From Aid to Cooperation (Indiana University Press 2009). 127 See Dann Chapter 12, this volume. 128 On the current role of ‘expertise’ in creating an unjust status quo, see D Kennedy, A World of Struggle (Princeton University Press 2016). 129 Ram P Anand, International Courts and Contemporary Conflicts (Asia Publishing House 1972) 320; hier fehlt das 1966 Südwestafrika-​Urteil!Taslim O Elias, Africa and the Development of International Law (Martinus Nijhoff Publishers 1988) 51. On the role of the Court, see Venzke Chapter  10, this volume.

The Battle for International Law  31 knowledge and understanding. However, institutional control generally translated into the substantive positioning of the respective institution. And so, failure or success in gaining institutional control translated into such support, or not.

V. Conclusion The battle for international law shaped the era situated between the Bandung Conference and the adoption of the NIEO. This transitional phase connects two long eras of Western imperialism, namely the high time of European colonialism that began in 1885 with the Berlin conference lasting until the 1950s, and the current era of US-​led Western hegemony that began in the 1970s. Within roughly three decades, two-​thirds of the world’s population were led out of direct colonial rule exercised by European metropoles. This process came with a substantial transformation of the international legal order. While third world scholars and politicians succeeded in discrediting and delegitimizing the most apparent structures enabling classic colonial rule, the third world on balance clearly ‘lost’ the battle for a new substantively reformed international law. Western states secured their victories on the various battle sites by using international legal discourse in a strategic and often highly instrumental way. One of the most effective general strategies to ensure gradual transition to a new form of Western hegemony was to block third world initiatives of a more structural dimension while concurrently accommodating requests for change in a highly controlled and moderate way. Various discursive manoeuvres were instrumental in blocking a substantive reversal of the international legal order into one serving the interests of the colonized. Despite the successful politicization of central concepts during that transitional era, the West managed to adapt existing international legal structures to the new situation in which Western states had to deal with around 100 new formally independent states without losing control over the political economy of the world. It is the sum of these battles, skirmishes, counter moves and adaptations that, despite of various tactical third world victories, ultimately led to defeat in the battle for international law. By succeeding in injecting new meaning into central legal concepts and structures, Western governments could justify new forms of military, economic, and political interventionism in the open-​ended language of international law that allowed for transformed and long-​lasting North–​South structures of dependency and exploitation.

1

The Common Heritage of Mankind Annotations on a Battle Surabhi Ranganathan

I.  The seabed as battlefield Among the battles for international law that unfolded in the decolonization era was that over the seabed1 and its mineral resources. Until then, the law of the sea had made few references to the deep seabed. The 1958 Continental Shelf Convention provided for national jurisdiction over the shallow seabed—​or continental shelf—​ defined vaguely, by reference to criteria of adjacency and exploitability.2 The 1958 High Seas Convention mainly clarified rights in the water column, referring to the seabed only in the context of the freedom to lay pipelines and cables.3 At the time these treaties were adopted, possibilities such as drilling the deep seabed for hard minerals had not come into prominence. Scientists had only commenced systematic mapping of the seabed earlier in that decade, producing the first map—​of the North Atlantic sea-​floor—​in 1957. With most of the seabed remaining unmapped and underexplored, its legal regulation was not a key issue. However, developments followed at a brisk pace thereafter. The idea of drilling the deep seabed gathered momentum in the United States (US), partly due to improvements in oil and mineral drilling technologies, and partly owing to the rising demand for metals. When the Scripps Institution of Oceanography discovered rich deposits of manganese nodules while dredging and photographing the Pacific floor, their findings attracted attention.4 Such nodules had been found before: the 1 The chapter draws on archival research conducted in New York, London, and Nairobi, a variety of UN materials, and first-​person accounts of seabed exploration and mining initiatives. Some of this research was conducted in connection with previously published work, including Surabhi Ranganathan, ‘Global Commons’ (2016) 27 EJIL 693 (hereafter Ranganathan, ‘Global Commons’); and ‘Manganese Nodules’ in Jessie Hohmann and Daniel Joyce (eds), International Law’s Objects (OUP 2018) (hereafter Ranganathan, ‘Manganese Nodules’); the piece thus draws upon these works, though it differs in focus and purpose. 2 Art 1, 4.  Convention on Continental Shelf (adopted 29 April 1958, entered into force 10 June 1964) 499 UNTS 311. 3 Arts 1, 2, and 26, Convention on High Seas (adopted 29 April 1958, entered into force 30 September 1962) 450 UNTS 11. 4 Roscoe Fleming and WN Fleming, ‘Can We Vacuum-​Clean the Sea Floor for Valuable Ore?’ (July 1959) Popular Science 102. Surabhi Ranganathan, The Common Heritage of Mankind In: The Battle for International Law: South-North Perspectives on the Decolonization Era. Edited by: Jochen von Bernstorff and Philipp Dann, Oxford University Press (2019). © The Several Contributors. DOI: 10.1093/oso/9780198849636.003.0002

36  Surabhi Ranganathan famous nineteenth-​century Challenger expedition had collected samples and reported on their polymetallic—​manganese, copper, cobalt, and nickel—​content.5 However, as large-​scale collection of the nodules was (at the time) inconceivable, they were forgotten. Scripps ‘rediscovered’ them at a propitious time, commissioning a study on the possibility of mining the nodules on a commercial scale. For this purpose, Scripps recruited John Mero, a post-​graduate researcher, who went on to publish a book and papers that catalysed the development of a seabed mining industry.6 Mero’s writings delivered attractive estimates: billions of tonnes of ore-​grade nodules paired with probable costs of $100 million for mining and processing 5000 tonnes of nodules per day would generate a 30 per cent return on investment.7 The publication of Mero’s calculations coincided with other factors that made the ocean and ocean floor prominent subjects of study and popular discussion in the 1960s, resulting in an increasing sense of possibility of using the ocean in multiple ways on the one hand and a felt necessity on the other. Population explosion and food scarcity were major concerns, exacerbated—​from the Western perspective—​ by decolonization, which had also destabilized existing arrangements for access to natural resources.8 The ocean, carrying untapped reserves of both food and minerals, was regarded as the panacea.9 Alongside ideas of marine farming and nodule mining, there even flourished visions of human habitation in the sea. Such developments generated discussion on the law that should govern the oceans. Particularly with respect to the deep seabed, enterprises planning to make fixed capital investments into exploring mining sites and building equipment sought clarity on the legal framework applicable to their activities.10 States began to contemplate how, whose, and on what terms jurisdiction could be established over this part of the ocean. It was in this context that the concept of the common heritage of mankind (CHM) came to be articulated, contested, and given specific meaning. The debate on the seabed also catalysed negotiations on all other aspects of the law of the sea, including those previously regulated by the 1958 Conventions. The Third United Nations (UN) Conference on the Law of the Sea (UNCLOS III), inaugurated in 1973, culminated in the adoption of the 1982 UN Convention on the Law of the Sea (LOSC).11 5 John Murray and Alphonse François Renard, ‘Report on Deep-​Sea Deposits. Based on the Specimens Collected during the Voyage of the HMS Challenger (1873–​76)’ (1891) 341ff . 6 John L Mero, Mineral Resources of the Sea (Elsevier Publishing Company 1965); and for a broader audience: John L Mero, ‘Minerals on the Ocean Floor’ (1960) 203 Scientific American 64. 7 On the excitement generated by Mero’s research, see Geoffrey P Glasby, ‘Deep Seabed Mining: Past Failures and Future Prospects’ (2002) 20 Marine Georesources & Geotechnology 161. 8 Eg, Paul R Ehrlich, The Population Bomb (Sierra Club/​Ballantine Books 1968); Garrett Hardin, ‘Tragedy of the Commons’ (1968) 162 Science 1243; see also Ranganathan, ‘Global Commons’ (n 1). 9 See, eg, Tony Loftas, The Last Resource (Hamish Hamilton 1969). 10 Philip E Steinberg, Social Construction of the Ocean (CUP 2001) 187ff. 11 UN Convention on the Law of the Sea (adopted 10 December 1982, entered into force 16 November 1994) 1833 UNTS 3.

The Common Heritage of Mankind  37 UNCLOS III negotiations, and those of the preceding UN Committee on the Seabed (1968–​1973), are often recalled in the register of battle waged between developed and developing states to write their preferred politico-​economic visions into law. The former were dealing with the loss of empire and eager to prolong their rule over economic affairs; the latter were keen to change the rules of economic exchange and distribution and spur their own industrial development. Indeed, the law of the sea negotiations are narrated as an element of the third world’s struggle in the 1970s for a New International Economic Order (NIEO).12 In keeping with the theme of this volume, Section II tells this story of battle, focusing on the events until 1975 but going beyond where necessary. It illuminates how the seabed became the subject of a protracted legal tussle that focused upon the content to be given to the CHM principle, but also had broader implications for international law and international relations. It avoids recapping details that may be obtained elsewhere and instead concentrates on showing how the terms of the battle changed over time. Section III then returns to the theme implied in the chapter’s subtitle and ‘annotates’ the battle described in Section II by referring to a few key issues—​the precise basis for developing states’ interest in seabed resources; the antinomies of the CHM principle; and the lurking shadow of another battle, the Cold War, upon the negotiations.

II.  The battle traced Institutional narratives of the battle for the seabed usually identify 1967 as the year the opening salvo was fired. It was then that Malta requested the UN Secretary General (UNSG) to add the seabed as an item on the agenda for the UN General Assembly’s (UNGA) annual meeting.13 And Arvid Pardo, Malta’s chief diplomat, made a major speech outlining possibilities and perils of resource extraction from the seabed and introducing the CHM concept.14 UN Yearbook indices show a rapid increase in the number of entries relating to the seabed from this year, whereas that subject had received no previous mention. The Maltese initiative was catalysed by information about the rapid development of resource extraction technologies as well as apprehension of the seabed’s appropriation and militarization by industrially advanced states. Giorgio Borg Oliver, the Maltese Prime Minister, argued that, rather than permitting these outcomes, the UN should facilitate the use of seabed resources as a source of development 12 See, eg, Robert L Friedham and William J Durch, ‘The International Seabed Resources Agency Negotiations and the New International Economic Order’ (1977) 31 International Organization 343. 13 Malta: Request for the Inclusion of a Supplementary Item in the Agenda of the Twenty-​Second Session (18 August 1967) UN Doc A/​6695 (hereafter ‘UN Doc A/​6695’). 14 UNGA, First Committee Debate (1 November 1967) UN Doc A/​C.1/​PV.1515–​1516, (hereafter ‘UNGA, A/​C.1/​PV.1515–​1516’).

38  Surabhi Ranganathan capital for poorer states.15 Pardo, spearheading the initiative at the UN, echoed these themes, in a speech that—​as I  have more fully described elsewhere—​was part panegyric to the oceans, part tantalizing description of the seabed’s material possibilities, and part warning of its approaching enclosure.16 He described the near-​incomprehensible quantities of mineral resources available in the sea—​eg, 358,000,000,000 tonnes of manganese, enough for 400,000 years of human consumption, as compared to 100 years’ worth available on land.17 He asserted that these minerals could be profitably extracted, with their commercial recovery imminent.18 He placed their extraction in a broader context: a first move towards greater engagement with the oceans, heralding long-​term uses such as farming and fish husbandry, and perhaps even human settlement.19 In the shorter term, seabed mining offered both revenue and, what ‘technologically advanced countries’ would welcome more, freedom from ‘import dependency in peace and war’.20 The seabed was also a possible terrain for military activity, including the placement of fixed missile systems.21 Pardo then noted his fear that economic and strategic interests would cause technologically advanced states to appropriate the seabed, sharply increasing world tensions partly by instigating a naval arms race, and partly because of the ‘intolerable injustice’ of ‘reserving the plurality of the world’s resources for the exclusive benefit of [a few] nations’.22 He claimed that a competitive scramble was already underway, and would surpass ‘in magnitude and implication [the] colonial scramble for territory in Asia and Africa’.23 Contemporary international law, permitting—​via definition of the continental shelf—​claims to jurisdiction based on the exploitability of the seabed would only support such a scramble.24 Therefore, Malta (and Pardo) advocated to the assembled states the need for a new legal framework, founded on the CHM principle, for activities on the seabed. This framework would preclude national appropriation of the seabed area and resources lying beyond designated zones of national jurisdiction. It would permit their exploitation under international licence exclusively for peaceful purposes and for the benefit of mankind as a whole; thus, it would mandate sharing financial revenues obtained from commercial exploitation among states, with preferential consideration given to poorer countries. Pardo supported the speedy conclusion of

15

UN Doc A/​6695 (n 13). Ranganathan, ‘Global Commons’ (n 1) 704–​06. 17 UNGA, A/​C.1/​PV.1515–​1516 (n 14) paras  26–​27. 18 ibid para 34. 19 ibid paras 33–​34, 44. 20 ibid para 45. 21 ibid paras 48–​50. 22 ibid para 91. 23 ibid. 24 ibid paras 56ff. 16

The Common Heritage of Mankind  39 a treaty that would delineate the international seabed and establish an autonomous international agency to administer it.25 At the time of Pardo’s speech, the seabed had already appeared on the agenda of the UN Secretariat, UNESCO, and other agencies. The UN Economic and Social Council (ECOSOC) and UNGA had adopted resolutions asking the UNSG to study prospects of seabed mining, especially for the benefit of developing states.26 Non-​governmental forums had articulated the CHM principle in relation to the seabed in their proposals.27 US President Lyndon Johnson had asserted that the seabed should remain ‘the legacy of all human beings’.28 Moreover, preambles of the 1959 Antarctic Treaty29 and the 1967 Outer Space Treaty had referred to those domains in terms of the common interest of all mankind. The Outer Space Treaty even stated that the: . . . exploration and use of outer space, including . . . celestial bodies, shall be carried out for the benefit and in the interests of all countries, irrespective of their degree of economic or scientific development, and shall be the province of all mankind.30

Yet, following on the heels of these activities, Pardo’s speech represented a flashpoint. In contrast with the non-​governmental forums, it was the first formal proposal to the UN for a treaty on the seabed. In contrast with the Outer Space and Antarctic treaties, it suggested that revenues derived from commercial exploitation should be shared among states. And, in contrast with the UN Secretariat, it pressed for urgent political action. Indeed, much of the influence of Pardo’s speech must be attributed to his framing the seabed as presenting either an immediate threat of global conflict—​land grab giving on to actual battle—​or an opportunity for constructive post-​colonial legal and economic engagement between states. Developed states, both Western and the USSR, opted to emphasize the opportunity rather than the threat. The United Kingdom (UK) Foreign Office records reveal that they had been surprised by Malta’s initial request for discussion of the seabed, and worried that it would push for demilitarization of the seabed—​a difficult proposition to openly discuss in the Cold War context.31 Relieved to find from 25 UNGA, A/​C.1/​PV.1516–​1516 (n 14) para 8ff. 26 ECOSOC Res 1112 (XL) (7 March 1966); UNGA Res 2172 (XXI) (6 December 1966). 27 World Peace through Law Center, ‘Resolution 15: Resources of the High Seas’ (13 July 1967) S-​ 0442-​0027-​0003; Commission to Study the Organisation of Peace, ‘Draft Resolution and Working Paper’ (S-​0858-​0005-​03, 21 August 1967). 28 Lyndon B Johnson, ‘Remarks at the Commissioning of the Research Ship—​Oceanographer’ (13 July 1966) accessed 7 December 2018. 29 The Antarctic Treaty (adopted 1 December 1959, entered into force 23 June 1961) 402 UNTS 71. 30 Art 1, Outer Space Treaty (adopted 27 January 1967, entered into force 10 October 1967) 610 UNTS 205. Already in 1952 the proposition was that outer space should be regarded as the property of all mankind: Oscar Schachter, ‘Who Owns the Universe’ (22 March 1952) Collier’s Weekly 36. 31 UK National Archives, Foreign and Commonwealth Office, 10/​232–​235.

40  Surabhi Ranganathan Pardo’s speech that this was not Malta’s sole focus, they took steps to minimize discussion on the issue, preferring that the discussion concentrate upon the question of a seabed regime governing economic exploitation. For on that topic, while they considered Malta’s proposals for redistribution quixotic, they were not averse to some form of international regulation—​for which there was also demand from potential investors.32 Mainly, developed states hoped to delegate the issue to a smaller committee (much like the one for outer space) that would work at a deliberate enough pace for them to reconcile their multiple domestic interests in seabed delimitation and use.33 Such interests included corporate interests favouring wide zones of national jurisdiction over the seabed, defence interests favouring narrow ones, interests of non-​governmental bodies, individual Parliamentarians, and groups like the Quakers (who embraced the CHM idea), and many others. Different cocktails of these interests had generated differing national positions, which the developed states also hoped to reconcile, given time: to this end, they held regular meetings among themselves, and bilaterally with the USSR and possibly also Japan.34 For their part, developing states, recalled in the literature as the champions of CHM, were indeed favourably disposed to the prospect of seabed riches being used for their benefit, and commended this aspect of Pardo’s proposal. However, it is wrong to think developing states equally enthusiastic about all implications of the CHM: in particular, several were concerned at the implication that the largest possible portion of the seabed would fall within international jurisdiction. Rather, with a preference strengthened by Pardo’s description of seabed riches, they were keen for expansive zones of national jurisdiction.35 That said, their overall response, as for developed states, was to support discussion of the various issues by committee. Thus, the 1967 session of the UNGA concluded with the establishment of a Seabed Committee. This Committee did its work in two phases. Until 1970, it focused on formulating guiding principles expressing the CHM concept, and these were adopted as the Declaration of Principles Governing the Seabed.36 Thereafter, following the UNGA’s decision to convene UNCLOS III in 1973, it undertook preparatory work for this conference, including seeking to specify precise mechanisms to regulate seabed mining.37 Unfortunately, as the rifts between their positions became clear, the Committee only succeeded in increasing the opposition between developed and developing states. Among the divisive issues were the criteria for determining the breadth

32 ibid. 33 ibid. 34 ibid. 35 For states’ initial reactions, see UNGA, First Committee Debate (8–​16 November 1967) UN Doc A/​C.1/​PV.1524–​1530. 36 UNGA Res 25/​2749 (17 December 1970). 37 UNGA Res 25/​2750 C (17 December 1970).

The Common Heritage of Mankind  41 of the continental shelves; the question whether the future treaty might address all other oceans issues; and, most difficult of all, the precise legal framework for seabed mining.38 The first issue—​breadth of the continental shelves—​was one on which we might have expected states to differ across multiple axes, relating to whether and what type of continental shelf, they had access. While this was indeed the case initially, the positions became resolved along developed and developing lines. It was observed that states such as Tanzania and Sri Lanka (at the time Ceylon) had changed their initial positions, and India had even decided to act against its own interest, all for the sake of solidarity with other developing states.39 Developing states also rejected a proposal made by US President Richard Nixon for a tripartite division of the seabed, into a narrow national continental shelf, a trusteeship zone, and an international area. Although this proposal carried definite benefits for developing states, they were suspicious of US motives, and mistrustful of the language of ‘trusteeship’.40 The second issue—​the scope of the future treaty—​emerged from the first in that one of the questions arising from it was the extent to which possession of the continental shelf may have consequences for jurisdiction over the water column above (and its resources). This resulted in developing states’ clamouring for a fresh consideration of this and all other matters concerning the law of the sea. Such matters had been previously addressed by treaties negotiated before most developing states had achieved independence. Developed states resisted the proposal, preferring that the treaty solely focus on the regulation of activities on the deep seabed.41 These first two divisive issues eventually found resolution; the former at the UNCLOS III negotiations, the latter in the prior decision that the mandate of this conference would include all oceans issues. But the third issue—​the regime governing the seabed—​remained contested for a much longer time. At its heart was the question of what precise formulation should be given to the CHM, which had been accepted as the proper designation for the seabed. All states were willing to pay lip service to Pardo’s ideas. They agreed that the seabed should be immune from national appropriation, and that its resources should be exploited for the benefit of all mankind. They thus supported the 1970 Declaration of Principles (a text that reconciled their varied expectations by way of abstract statement).42 However, they disagreed—​sharply—​on the details. 38 For a detailed account, see Shigeru Oda, The UN Seabed Committee 1968–​1973 (Sijthoff 1977) (hereafter Oda, The Seabed Committee). 39 Per correspondence in FCO 76/​328 UK National Archives. 40 Per correspondence in FCO 76/​145, 76/​161, and 76/​332, UK National Archives. 41 See UNGA, Plenary Meeting (15 December 1969) UN Doc A/​PV.1833. However, they agreed to comprehensive negotiations the following year. 42 The vote was 108 states in favour, none against, and fourteen abstentions. However, it needed the Chairman, Hamilton S Amerasinghe, to submit a personal draft of the principles, reconciling the texts prepared by developed and developing states, and his good offices, to achieve this resolution: see Oda, The Seabed Committee (n 38) 131–​32.

42  Surabhi Ranganathan Developed states were keen for a regime modelled on the principle of the freedom of the high seas: the seabed should remain a res communis, open to economic activity of all states. They wanted an international body to function mainly as a registry of mining sites, although they were willing to further regard it as a body empowered to issue mining ‘licences’ (though without discretion in the matter) and distribute the fee revenue to developing states. Such a system would ensure both access to mining sites and security of tenure once their claims were registered. Developing states, however, wanted more: an international body that would itself conduct all mining activity (with necessary financial and technological assistance from developed states) and share the profits generated among all states, with especial reference to their needs as developing states. Such a body would enable them to feel they were active participants in the regime. Moreover, excluding national or private mining activity would ensure that seabed resources were recovered at a sustainable rate, protecting the interests of land-​based producers of the relevant minerals (for example, Chile was a major producer of copper). This difference in position carried on into UNCLOS III. A partial resolution was achieved as late as 1976 on the basis of a proposal by Henry Kissinger for a parallel system under which mining might be carried out either by an international body, the so-​called ‘Enterprise’, or by states.43 Developing states had some misgivings about such a parallel system; they worried that the Enterprise would not survive open competition with the private or public mining enterprises of developed states, and thus pushed for it to enjoy certain privileges in the use of the seabed. Thus, the battle shifted focus, consolidating now around five issues: 1. Access to technology. Developing states expected developed states to provide technology to the Enterprise, including for its joint ventures with developing states, on highly favourable terms. However, developed states were only willing to ‘facilitate’ access to technology at market prices. 2. Site banking. One of Kissinger’s initial concessions was that certain mining sites could be reserved for use of the Enterprise. This morphed into a claim by developing states that developed states seeking mining licences from the proposed International Seabed Authority (ISA) should in fact identify two sites of equal value: one to be allocated to their use, and the other to be reserved for use by the Enterprise or 43 Edward L Miles, Global Ocean Politics (Martinus Nijhoff 1998) 219 (hereafter Miles, Global Ocean Politics).

The Common Heritage of Mankind  43 developing states. Developed states were concerned about the costs this would impose on them. 3. Provision of financial support to the Enterprise and the ISA itself. Developed states were similarly concerned about costs in relation to the issue of financial support to the Enterprise and the ISA itself—​the former by financing entirely its first mining operation, the latter in the form of fees and a share in revenue. While not unwilling to pay, they considered the rates imposed too high and too inflexible. 4. Developing states’ demands for production ceilings. In the years following Pardo’s speech, developing states had come to recognize that the resources of the international seabed would not include the most valued—​ petroleum.44 Rather, manganese nodules would remain the main resource, containing minerals that were still plentifully available on their land. They feared a glut in the market from seabed production, and were not much reassured by reports like that of the UNSG, who foresaw an adverse impact on land-​based producers of manganese (and possibly cobalt and nickel, but not copper).45 They thus sought production quotas—​a demand strongly resisted by developed states. 5. The ISA’s administrative structure. Developing states wanted an active say in the ISA’s decision making, and favoured the vesting of major powers in an Assembly; obviously, they would enjoy a numerical majority in such a body. Developed states pushed for such powers to be vested in a smaller Council, in which they would have greater proportionate representation. It is not difficult to see why these five issues were to prove intractable. For developing states, they represented essential elements of the CHM—​provisions material to their expectations that, for the first time in their experience, a global resource would be used in a way that included them as equal participants and beneficiaries. Their resolve to achieve these outcomes strengthened with time, as the seabed became joined to the NIEO agenda.46 In Chimni’s words, it came to be seen as ‘a microcosm of the possibilities the future held and the inauguration of a new era in 44 Shigeru Oda, The Law of the Sea in Our Time: New Developments 1966–​1975 (Sijthoff 1977) 125 (hereafter Oda, New Developments). 45 UNSG, ‘Report on the Possible Impact of Seabed Mineral Production in the Area beyond National Jurisdiction on World Markets, with Special Reference to the Problems of Developing Countries: A Preliminary Assessment’ (28 May 1971) UN Doc A/​AC.138/​36. 46 Art 29, UNGA Res 29/​3281 (12 December 1974).

44  Surabhi Ranganathan international relations’.47 For developed states, however, the developing states’ demands were unnecessary and cumbersome extrapolations from the CHM concept, which would eventually stymie the adoption of a practicable regime.48 Two procedural decisions taken in the 1973 and 1974 sessions of UNCLOS III further added to the conditions shaping the battle of attrition between developed and developing states. The first was that, as far as possible, all decisions would be taken by consensus;49 the second was that the treaty would be negotiated as a package deal, with states asked to accept or reject it as a whole.50 Underlying these decisions perhaps was the expectation that they would facilitate adoption of a seabed regime acceptable to all states. However, these decisions delayed agreement on various aspects, and later became the basis for rejection of the LOSC by a number of developed states, despite their agreement with its provisions on all other oceans issues. Accounts of the work of the UN Seabed Committee and (even more so) UNCLOS III recollect a frustrating negotiation process in which formal meetings made little headway:  personality conflicts, secret meetings, and suspicions of conspiracy abounded, and information asymmetries made it difficult to distinguish proposals made in good faith from those that were not.51 From the perspective of the developed states, the final outcome—​written into the LOSC—​was particularly unfortunate. It had been clear to them for many years that the economic promise of seabed resources had been exaggerated, and they resented the complex bureaucracy that the developing states had managed to secure in realization of their aims. With some refusing to sign the LOSC at all, many Western developed states worked systematically to alter its seabed regime.52 In 1994 they were able to secure an ‘Implementation Agreement’ which all but rewrote the LOSC provisions.53 The new regime foregrounded the commercial aspects of seabed mining, reducing the CHM aspirations simply to a few provisions on revenue sharing. The changes were described by Western scholars as an ‘excellent example of adapting international law to new circumstances’.54 To some

47 Bhupinder S Chimni, ‘International Law Scholarship in Postcolonial India: Coping with Dualism’ (2010) 23 Leiden Journal of International Law 23, 38. 48 This view is neatly captured by the title of an account of the US position at the seabed negotiations:  Markus G Schmidt, Common Heritage or Common Burden (OUP 1989) (hereafter Schmidt, Common Heritage or Common Burden). 49 This point took up most of the opening session: Oda, New Developments (n 44) 153–​54. 50 UNCLOS III, 2nd Session, 19th Plenary Meeting, Caracas (27 June 1974) UN Doc. A/​Conf.62/​ SR.19. 51 See, eg, Oda, The Seabed Committee (n 38); Miles, Global Ocean Politics (n 43). 52 Surabhi Ranganathan, Strategically Created Treaty Conflicts and the Politics of International Law (CUP 2014) 149ff (hereafter Ranganathan, Treaty Conflicts). 53 Agreement relating to the implementation of Part XI of the United Nations Convention on the Law of the Sea of 10 December 1982 (adopted 28 July 1994, entered into force 16 November 1994) 1836 UNTS 3. On the changes see Ranganathan, Treaty Conflicts (n 52) 174–​76 and 376–​79. 54 Louis B Sohn, ‘International Law Implications of the 1994 Agreement’ (1994) 88 American Journal of International Law 696, 704–​05

The Common Heritage of Mankind  45 developing state scholars, however, they represented a ‘mutilation’ of the CHM ideal.55

III.  Annotations on the battle As seen in the earlier account, the grounds of the ‘battle for the seabed’ shifted over the years: from forestalling enclosure (per Pardo’s warnings) to negotiating an appropriate scope for national jurisdiction, to arguments over whether only an international body could undertake mining operations to the terms of the assistance that developed states would provide to developing states. That said, the proper conception of the CHM, as the legal foundation for reconfigured political and economic relations between developed and developing states, remained the central issue. In fact, it is often noted that, since the initial flush of excitement about the material gains from the manganese nodules had quickly receded, the battle was largely about the law and the creation of a legal precedent by securing a concrete articulation of the CHM.56 In this view, the nodules were just a pretext; the regime itself was the prize, as the potential exemplar for other regimes on natural resources. Evaluations of the outcome of the battle—​its winners and losers—​are predicated on this view. And the view is correct to a point. The normative dimension (or, as some noted, the ideological one) did to some extent overtake the material dimension of the battle. This section explores whether this was to any party’s benefit. However, it first complicates the assertion that the material dimension had lost its importance by the early years of UNCLOS III and argues that this was not, for good reason, the perception of developing states. Finally, the section briefly comments on the need for further analysis of the shadow cast by the Cold War over the battle for the seabed.

1.  Persistence of the material dimension Doubts about the feasibility of seabed mining rose prior to the commencement of UNCLOS III.57 In private meetings, Western states had acknowledged that the 55 Ram Prakash Anand, ‘Common Heritage of Mankind:  Mutilation of an Ideal’ in Studies in International Law and History: An Asian Perspective (Martinus Nijhoff 2004) 180, 196 (hereafter Anand, ‘Common Heritage of Mankind’). 56 See, eg, Martti Koskenniemi and Marja Lehto, ‘The Privilege of Universality: International Law, Economic Ideology and Seabed Resources’ (1996) 65 Nordic JIL 533, 539ff (hereafter Koskenniemi and Lehto, ‘The Privilege of University’), describing the seabed negotiations as ‘mainly political’ (1974–​ 1979) and ‘mainly ideological’ (1981–​1984), as opposed to the ‘mainly economic’ initial setting (1967–​ 1970). They note that by 1974–​1975, ‘[t]‌he illusion of an “ocean bonanza” had been lost’: ibid 541. 57 See Geoffrey P Glasby, ‘Lessons Learned from Deep-​Sea Mining’ (2000) 289 Science 551.

46  Surabhi Ranganathan economics did not favour seabed mining on a large scale, and that such mining would generate ‘insignificant’ revenues for distribution among developing states for the foreseeable future.58 Although they had hesitated to communicate this to developing states,59 those states too received advice from their scientists that, without further technological development, seabed mining would not be competitive.60 Nevertheless, they continued to push for an international regime on the terms described in Section II. Not only did they insist on a share in benefits from seabed mining, they also insisted on production limitations to prevent harm to their land-​based mineral production. The literature tends to regard theirs as an obdurate insistence on the economic prospects of seabed mining, as well as a possibly strategic one, in order to push their preferred vision of the CHM.61 However, to understand why developing states continued to believe in the material prospects of seabed mining, it is important to note the actions of developed states and their corporations.62 These must bear some responsibility for confirming developing states in their belief that, even if not an imminent prospect, seabed mining was certainly a near-​term one. For example, consider the affair of the Hughes Glomar Explorer, a massive ship built and operated by the CIA in the early 1970s in order to raise a sunken Soviet submarine from the Pacific bed. The story circulated as cover for this mission was that the ship belonged to the Howard Hughes Corporation, and was being used to mine for manganese nodules.63 Many, including the UN Secretariat,64 and even US officials,65 appear to have believed the story. Even after the true nature of the mission was revealed in the late 1970s, other developments occurred to convince developing states of corporations’ and developed states’ serious interest in seabed mining. For one, representations made by developed states focused upon economic opportunities—​for example, Henry Kissinger canvassed for the parallel system on the argument that there were ‘more than 100 valuable sites on which operations could be conducted at present’.66 For another, European (particularly German), American, and Japanese companies, having formed various mining consortia, reported successful testing of nodule mining technologies (explaining their decision to postpone developing commercial 58 Per records in FCO 76/​733, UK National Archives. 59 ibid. 60 Eg, Letter from the Chief Geologist, Ministry of Natural Resources, Kenya (10 September 1973) (Kenya National Archives, KP/​6/​9). 61 See, eg, Schmidt, Common Heritage or Common Burden (n 48) 16. 62 I also discuss some of these actions in Ranganathan, ‘Manganese Nodules’ (n 1). 63 Roy Varner and Wayne R Collier, A Matter of Risk: The Incredible Inside Story of the CIA’s Hughes Glomar Explorer Mission to Raise a Russian Submarine (Random House 1978) (Collier was part of the CIA mission). 64 See, eg, UNSG, ‘Seabed Resources  –​Recent Developments’ (3 July 1973)  UN Doc A/​AC.138/​ 90,  10–​11. 65 ibid 188. 66 ‘Meeting with Kenyan officials’ (13 August 1976) (Kenya National Archives, KL/​14/​1).

The Common Heritage of Mankind  47 mining systems on the argument that the regime being negotiated at UNCLOS III imposed conditions that were too onerous).67 Between 1980 and 1982, a number of Western states (the US, the UK, Germany, France, Japan) also adopted domestic legislation authorizing commercial mining under their unilateral (mutually recognized) licence—​making good on a long threatened action, and further convincing developing states that they were in a race to grab all the mineral wealth of the seabed.68 Meanwhile, research expeditions brought to light other types of mineral deposits—​polymetallic sulphides and cobalt-​rich crusts—​which could be recovered alongside manganese nodules.69 The US government undertook its own exploration of these, generating talks in Washington DC of a new gold rush.70 It is not remarkable that, for developing countries—​who had frankly acknowledged that the technology to undertake seabed mining would have to come from the developed states and their corporations—​these activities were continuing indications of seabed mining’s material possibilities, as well as material threats to their land-​based production. The economics of seabed mining thus remained a critical factor in their negotiating posture.

2.  An ideological victory? Most scholarship identifies the ideological dimension of the seabed negotiations as key to understanding the long battle of attrition fought between developed and developing states. For instance, Koskenniemi and Lehto note that: No immediate pressure to conclude the negotiations with a practical and workable arrangement to govern deep seabed operations was felt. All parties preferred to dwell in questions of principle—​all the more so as they seemed to be important precedents for a whole range of future international institutions governing international commons.71

For his part, Pardo, looking back at the negotiations, rued the ‘almost theological debate’ in which ‘the viability of the future international regime for the seabed beyond national jurisdiction and economic realities were largely forgotten by the contending parties’.72 The ideology in focus was, of course, the NIEO for developing states. Developed states, despising the very phrase—​which the British Prime 67 John L Shaw, ‘Nodule Mining—​ Three Miles Deep!’ (1993) 11 Marine Georesources & Geotechnology 181, 197 (Shaw headed the consortium that carried out the first venture). 68 See, eg, records in Kenya National Archives, KP/​6/​12, and UK National Archives, FCO 76/​1957. 69 See, eg, Kenneth J Hsü, Challenger at Sea: A Ship That Revolutionized Earth Science (Princeton University Press 1992) 314–​15 (narrating the discovery of polymetallic sulphides). 70 William J Broad, The Universe Below: Discovering the Secrets of the Deep Sea (Fireside 1998) 259ff. 71 Koskenniemi and Lehto, ‘The Privilege of University’ (n 56) 541. 72 Arvid Pardo, ‘Before and After’ (1983) 46 Law and Contemporary Problems 95, 102.

48  Surabhi Ranganathan Minister Harold Wilson suggested sounded ‘a bit Muscovite’73—​and aware of the challenge that the idea represented, were keen to protect their access to resources and world markets, and worked to put in place the neoliberal arrangements that Mazower calls ‘the real new international economic order’.74 In the context of the seabed, they favoured application of the high-​seas freedom, protesting the developing states’ conception of the CHM as ‘socialist’.75 I have noted elsewhere that accounts of developing states’ commitment to the seabed and the CHM antedate this commitment to the mid-​1960s, and wrongly identify Pardo as one of their voices.76 Pardo’s motivations were multiple, and his proposal introducing the CHM lacked the elements that developing states later associated with that concept—​at which time they found him, and Malta, opposed to their stance. Meanwhile, developing states did not immediately take up the seabed: they responded cautiously to Pardo’s speech, and their solidarity on the issue was forged gradually, in the course of the Seabed Committee’s meetings. That said, there is no doubt that the seabed came to constitute an element of the NIEO agenda. Looking back, it is easy to characterize the 1982 LOSC regime as a victory for developing states, as its text refers to many of their issues of concern and suggests that these are material to any conception of the CHM. Certainly, these states also remained invested in it through the 1980s, with their championship providing one of a few fulcrums of solidarity within the third world. The impression of a temporary third-​world ideological victory is also strengthened by evaluations of the 1994 retrenchments as the mutilation of the CHM ideal.77 However, it is important to keep in view that, at the time of UNCLOS III and its conclusion, prominent voices in the third world expressed discontent with the shape taken by the CHM in the LOSC regime. The underlying ideal had been swallowed up in the minutiae, and the minutiae were disappointing. These voices at least perceived no ideological victory. For example, in a pair of articles published in 1982, Chimni argued that the 1982 treaty did not protect many of the interests—​access to technology, protection of land-​based production, a genuine opportunity to participate in seabed production—​that developing states considered essential to the CHM. Describing the law of the sea as ‘imperialism all the way’, he concluded that ‘restructuring or altering of existing international property relations is not possible through legal

73 UK Foreign Office, Internal correspondence (15 April 1975) (UK National Archives, FCO 61/​ 1295). 74 Mark Mazower, Governing the World (Penguin 2012) 343ff, 346 (hereafter Mazower, Governing the World). 75 James L Malone, ‘The United States and the Law of the Sea after UNCLOS III’ (1983) 46 Law and Contemporary Problems 29, 31–​32. Malone was chairman of the US delegation to UNCLOS III. 76 Ranganathan, ‘Global Commons’ (n 1) 706ff. 77 Anand, ‘Common Heritage of Mankind’ (n 55).

The Common Heritage of Mankind  49 instruments’.78 Bedjaoui took a similar view, pointing to the antinomies inherent in the CHM that had been exploited to the disadvantage of developing states. The CHM betokened an idea—​limited sovereignty in favour of collective economic security—​which had merit, but had only been deployed to gain access to developing states’ natural resources in the past. In the present context, too, its invocation seemed designed to counter developing states’ claims of permanent sovereignty over natural resources; it did not accommodate their interests, for example, access to technology. With ‘ill-​controlled appetites’, he argued, advanced powers were using the CHM as a cover to co-​opt the seabed to their uses.79 These scholarly assessments are complemented by archival records, for example, with Kenyan officials expressing consternation at the late inclusion of new elements, such as a system for protecting the investments into seabed mining that (mainly) developed states had already made.80 Coming at the end of a long and costly negotiation, this system amounted to—​as noted in the pre-​eminent textbook on the law of the sea—​ a ‘complete rewriting of the Convention’s rules on the sea-​bed mining’ in favour of those pioneer investor states.81 Even apart from the reactions to it, the LOSC regime did not, on merit, represent an ideological victory. Its provisions were unsatisfactory, and, although placed under rubrics corresponding to demands from the third world, obscured the ideas underlying the CHM, which as a principle also has thereafter retreated from view. Moreover, it is worth critically examining whether the battle over CHM advanced the NIEO in any material respect. That this finds only scant mentions in recent appraisals of the NIEO82 suggests that the presumption should be that it did not. Yet, this needs careful consideration, including assessing the possibility that, far from advancing it, this battle may have undermined the NIEO movement by sublimating many elements of the NIEO agenda into negotiations over one specific regime, which, as it turned out, was not the most relevant from the perspective of the economic needs of the developing states. Much time, energy, and foreign exchange (precious to developing states) were expended on UNCLOS III. What needs to be further analysed is how these negotiations impacted upon negotiations around other NIEO issues.

78 Bhupinder S Chimni, ‘Law of the Sea: Imperialism all the Way’ (1982) 17(11) Economic & Political Weekly 407; Bhupinder S Chimni, ‘Law of the Sea: Winners are Losers’ (1982) 17(24) Economic & Political Weekly 987. 79 Mohammed Bedjaoui, Towards a New International Economic Order (UNESCO/​Holmes & Meier 1979) 224–​27. 80 See, eg, Kenya National Archives, KL/​14/​2. 81 Robin R Churchill and Alan Vaughan Lowe, Law of the Sea (3rd edn, Manchester University Press 1999) 230. 82 Such a discussion has not so far appeared in recent works on the NIEO, including Mazower, Governing the World (n 74); and Symposium on the New International Economic Order (2015) 6 Humanity  1–​233.

50  Surabhi Ranganathan

3.  The shadow of the Cold War Full exploration of the influence of the Cold War upon the legal progression of the seabed negotiations is still needed. It certainly loomed large in perceptions of the NIEO, as mentioned in British Prime Minister Wilson’s concerns; the British Foreign Office reached the conclusion that, although the Soviet Union had neither originated the concept nor was willing to acknowledge the demands that the movement placed upon itself, it adopted a supportive posture for strategic reasons.83 Recent work goes further in reading the NIEO as a socialist globalization effort promoted by the second and third worlds.84 The Cold War was also a material factor as regards seabed policy formation. It underlay such points as the initial alarms of developed states that the Maltese initiative was concerned with defence aspects. It was also the basis for the division of views between industrial and military interests in these states: for example, in the US, industrial interests favoured broad zones of national jurisdiction over the seabed such that minerals could be recovered under domestic license, while military interests preferred narrow ones that would allow them to operate at greater proximity to other states (the Nixon proposal emerged from an initiative to reconcile these interests).85 Presumably, it contributed to the uncertainty regarding access to land-​based natural resources, and spurred the technological race for the sea, as well as for space. There are many respects in which we see Cold War influence upon seabed negotiations. For one, the Soviet Union’s alignments: on many issues, such as technology transfer, its interests coincided with developed states; like them, it even adopted its own unilateral mining legislation.86 Yet, afraid at the same time of internal collusion among Western states it adopted a supportive position towards the LOSC regime. A closer examination of its positions on various issues might allow for a richer appreciation of how the East/​West tensions fed into the North/​South debates. Secondly, the Cold War was certainly a factor underpinning the information distortions that characterized seabed negotiations. This included—​as mentioned—​ misleading developing states on the practical prospects of seabed mining. Thirdly, the Cold War also contributed to differing conceptions of legal doctrine and institutional authority among states—​hence, for example, the dismissal by Western states of the proposed ISA as ‘socialist’. Again the extent to which such 83 See UK National Archives, FCO 61/​1295 and 58/​927. 84 Johanna Bockmann, ‘Socialist Globalization against Capitalist Neocolonialism:  The Economic Ideas behind the New International Economic Order’ (2015) 6 Humanity 109. 85 Oda, New Developments (n 44) 89–​104. 86 ‘Edict on Provisional Measures to Regulate Soviet Enterprises for the Exploration and Exploitation of Mineral Resources’, 21 ILM 551 (1982). A Kenyan dispatch noted that this move was interpreted at UNCLOS III as an expression of Soviet dissatisfaction with third-​world states leaning in favour of Western states: Kenya National Archives, KL/​14/​2.

The Common Heritage of Mankind  51 differences shaped seabed negotiations and their outcome could benefit from a closer study. Indeed, the points made here barely scratch the surface of the intersections of the Cold War with the evolution of the CHM concept and the LOSC seabed regime. However, I hope I have established the importance of looking beyond the prism of a purely developed/​developing state battle in order to understand fully the development of this area of the law.

IV. Conclusion This chapter offered a digested account of the battle for the seabed between developed and developing states. It necessarily simplified the narrative, particularly gliding over many of the differences that existed within these groups. However, it conveyed a sense of the various interests and developments that generated interest in the seabed and the crystallization (and evolution over time) of the contest over different visions of the CHM. The chapter sought to highlight overlooked aspects of this battle, including the extent to which economic considerations remained material to the negotiations; the absence of an ideological victory for developing states; and—​more as provocation than answer—​the role of the seabed in the NIEO movement as a whole, as well as the influence of the Cold War context. These issues were incapable of a full examination in the course of this chapter, but they are critical to a full understanding of this particular battle of the decolonization era.

2

The Battle for the Recognition of Wars of National Liberation Jochen von Bernstorff

I.  Introduction The last phase of the struggle for decolonization had looked different in different places, ranging from full-​blown war of armed independence movements against the metropole’s institutions to cooperative treaty-​based transfer of executive power to a new formally independent government. Most independence movements embraced European-​style nationalism, even though the experiences with European colonization and racism gave third-​world nationalism a distinct character. Supported by famous United Nations (UN) resolutions, the growing number of decolonized states had managed to confer increasing institutional legitimacy to the still-​ongoing struggles for independence by incriminating colonialism and racism, as well as by actively promoting support for third-​world self-​determination. Armed revolts of independence movements against colonial or racist rule between 1945 and 1975, for example in Indonesia, Vietnam, Algeria, Kenya, Namibia, Angola, Guinea, and Western Sahara, figured as ‘wars of national liberation’ in various UN resolutions. Led from beginning to the victorious end by Georges Abi-​Saab, the G77 battle for the full recognition of wars of national liberation framed these wars as ‘defensive’ military actions against continuing foreign ‘aggression’ through colonialism. During the 1960s and early 1970s, this move was strongly opposed by most Western authors, who argued that these conflicts were internal struggles and thus merely ‘civil wars’ or reactions to ‘terrorist’ activities. With hindsight, it may seem striking that this international legal debate was fought with such intensity on both sides, given that the practical relevance of the fight for recognition of national liberation movements had almost entirely waned when international lawyers in the 1970s waged their fiercest battles over this issue. The decisive victory of the third world regarding this matter was only secured in 1977 after the protracted (but ultimately successful) negotiations on a treaty-​ based recognition of national liberation movements as ‘international’ armed

Jochen von Bernstorff, The Battle for the Recognition of Wars of National Liberation In: The Battle for International Law: South-North Perspectives on the Decolonization Era. Edited by: Jochen von Bernstorff and Philipp Dann, Oxford University Press (2019). © The Several Contributors. DOI: 10.1093/oso/9780198849636.003.0003

Recognition of Wars of National Liberation  53 conflicts under humanitarian law in the Additional Protocols of the Geneva Conventions.1 Both contemporary and more recent literature on the debates on wars of national liberation tends to explain the call for recognition as the re-​emergence of ‘just war’ thinking in post-​Second World War international relations inspired also by Maoist and Leninist thinking.2 Yet, as this chapter argues, much more was at stake in this fight for legal recognition of wars of national liberation for third-​world international lawyers. In his first article on this issue from 1972, Georges Abi-​Saab openly revealed his legal strategy, aiming at a re-​interpretation of the existing 1949 Geneva conventions in the light of recent UN practice, or (if politically possible) new treaty law: ‘development or adjustment through interpretation does not call for new legal instruments. If new instruments can be adopted, however, it would be all to the better’. Abi-​Saab also associated himself with the more far-​reaching aim of the independence movements, which he defined as struggles ‘to recover their freedom and identity’.3 Hence by re-​describing European colonialism as an act of foreign ‘oppression’ committed by one nation vis-​à-​vis another nation, two further claims were made by third-​world international lawyers—​one historical and the other pro futuro. The implied historical claim was that European imperialism and the associated ‘civilizing mission’ were acts of ‘aggression’, the exercise of which since the interwar period were increasingly seen as a particularly grave violation of international law. The second claim related to contemporary and future wars of national liberation. Those engaged in a war of national liberation were potentially international legal subjects, empowered and also tamed by the rules of international humanitarian law. As in the classic doctrine of ‘belligerency’, they became an adversary acting on equal terms with the colonizer, thus receiving an internationalized status. Without this recognition, in the future they could—​from an internal perspective of the colonizer—​still be regarded as ordinary criminals breaking the internal laws of the colony, or at best as a domestic faction fighting a revolutionary civil war against the metropole. Being classified as ‘criminals’ barred any automatic acquisition of an internationalized status as well as access to the related rights and duties under the laws regulating international armed conflicts. However, as the majority of Western international lawyers insisted during this time, this would not have automatically meant that liberation movements had no legal protection under the rules of humanitarian law, but only that the rules on 1 ‘Summary Records of Committee I’, Official Records of the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts, Geneva 1974–​1977 (vol VIII, Bern, 1978). 2 Stephen C Neff, War and the Law of Nations:  A General History (CUP 2005); John Dugard, ‘The Organisation of African Unity and Colonialism: An Inquiry into the Plea of Self-​Defence as a Justification for the Use of Force in the Eradication of Colonialism’ (1967) 16 International and Comparative Law Quarterly 157. 3 Georges Abi-​Saab, ‘Wars of National Liberation and the Laws of War’ (1972) 3 Annales d’études internationales 93, 117 (emphasis added).

54  Jochen von Bernstorff internal armed conflicts applied,4 which existed since 1949 and were also supposed to be refined in the second Additional Protocol being simultaneously negotiated in Geneva. It is noteworthy, however, that even the application of Common Article 3, which prohibits torture and inhumane treatment of detained fighters and civilians, in the real world had been far from established practice in wars of liberation against the European metropoles in the 1950s and 1960s. Both the United Kingdom (UK) in Kenya and the French government in Algeria systematically applied interrogation techniques involving torture, performed numerous extrajudicial executions, and carried out mass detentions of civilians, including widespread sexual violence against women.5 In their confidential communications with the ICRC, both governments had initially denied the applicability of Common Article 3 of the Geneva conventions to the Mau Mau in Kenya or to the FLN in Algeria.6 In line with early twentieth-​century colonial practice, rebellions against the metropole in the 1950s were seemingly still considered by the two governments as being law and order issues unregulated by humanitarian law. The traditional Western argument had been that humanitarian law as a whole was only applicable vis-​à-​vis ‘civilized’ fighters and civilians.7 The concept of ‘belligerency’ well-​known to nineteenth-​century European international lawyers came with limitations for the states dealing with insurgencies. However, these rules were not applied in the colonial context. Being an ‘unprivileged’ fighter in the eyes of Western international lawyers meant that states could punish and execute insurgents at will, denying them any status under international humanitarian law, let  alone prisoner-​of-​war status.8 Regardless of this Western position, the FLN in Algeria had publicly declared that it would nonetheless abide by the rules of the Geneva conventions in its fight for independence against France, thus putting the French government legally on the defensive. Equally important, perhaps, both the historical and pro futuro battle for legal internationalization of wars of liberation came with an identity dimension that went well beyond subtle differentiations under ius ad bellum and ius in bello rules; namely, that the ‘freedom fighters’ or ‘guerrilla forces’ leading the liberation war represented an antecedent and subsisting national entity that could be clearly distinguished from the colonial structures erected by the metropole. Liberation movements were thus fighting a war of self-​defence against the metropole on behalf of a nation that pre-​existed colonial rule. Hence, also at stake in this debate 4 Stefan Oeter, ‘Terrorism and “Wars of National Liberation” from a Law of War Perspective: Traditional Patterns and Recent Trends’ (1980) 49 Zeitschrift für ausländisches öffentliches Recht und Völkerrecht 445, 465–​66, with further references. 5 Caroline Elkins, Britain’s Gulag: The Brutal End of Empire in Kenya (The Bodley Head 2014). 6 Fabian Klose, Menschenrechte im Schatten kolonialer Gewalt: Die Dekolonisierungskriege in Kenia und Algerien 1945-​1962 (De Gruyter 2009) 151–​64. 7 Jochen von Bernstorff, ‘The Use of Force in International Law before World War I: On Imperial Ordering and the Ontology of the Nation-​State’ (2018) 29 European Journal of International Law 233. 8 Colonial insurgents were often considered irregular fighters and as such without ‘privileges’ under international law; for this view, cf Richard Baxter, ‘So-​Called “Unprivileged Belligerency”: Spies, Guerrillas and Saboteurs’ (1951) 28 British Yearbook of International Law 323.

Recognition of Wars of National Liberation  55 was the underlying rejection of two axioms of European imperialism: first, that the colonized had no history in the European (Hegelian) sense of the term before colonization, and second the paternalistic argument according to which the colonized populations needed to be further ‘civilized’ by the metropole in order to be able to live an independent life as a collective entity. For the involved third-​world scholars, only through the full legal recognition and internationalization of wars of national liberation did the international sphere symbolically endorse this fundamental rejection of the colonial project. It must be noted that prior to the 1977 adoption of the two Additional Protocols, despite numerous critical UN resolutions, the practice of colonialism had not been banned or outlawed, let alone condemned in any international instrument binding also the former colonizers. Full legal recognition of wars of national liberation in the idiom of nineteenth-​ century European nationalism in that sense was an attempt to rewrite the history of the colonized through new and in a way retroactive international law—​an attempt to pluck one’s own history from the jaws of the colonizer. It constituted a fundamental challenge to European international law albeit formulated by the third world in the language of the colonizer. According to Nandy, a general paradox of the early decolonization struggle was that third-​world nationalist resistance to colonialism saw itself forced to operate in the language and discursive structures of the colonizer.9 The same was true for the legal battle for the recognition of wars of national liberation. Embracing European nationalism came with European international law, and European international law was a discursive structure that had legitimized European imperialism. By endorsing European nationalism and the quest for independent statehood as a counter-​hegemonic strategy, it thus became more difficult to deny the validity of prior imperial conquests that had been considered ‘legal’ in European international legal discourse up until the mid-​ twentieth century. Yet, by arguing that colonial conquest had for centuries been illegal ‘aggression’ in a post-​1945 sense of the term, third-​world scholars did just that by seemingly denying the validity of older contemporary structures of the now-​strategically embraced legal discourse. Historical research of third-​world authors like Anand were conducive to this line of argumentation in their attempt to describe nineteenth-​and early twentieth-​century international law with its colonial underpinnings as a temporary aberration or dark era in the long history of international law.10 The claim that colonialism should be banned with full retroactive effect had always been countered by the West by invoking the principle of ‘intertemporal law’11 and the widespread conviction among Western international 9 Ashis Nandy, The Intimate Enemy: Loss and Recovery of Self under Colonialism (OUP 1983). 10 Ram P Anand (ed), Asian States and the Development of Universal International Law (Vikas Publications 1972). 11 Rosalyn Higgins, ‘Some Observations on the Inter-​Temporal Rule in International Law’ in Jerzy Makarczyk (ed), Theory of International Law at the Threshold of the 21st Century: Essays in Honour of Krzysztof Skubiszewski (Kluwer Law International 1996); Markus Kotzur, ‘Intertemporal Law’ (last

56  Jochen von Bernstorff lawyers that historical acquisitions of title had to be judged legally by the law in force at the time of acquisition. In an attempt to unfold the battle for full recognition in contemporary legal discourse in its political and symbolic dimensions, this chapter proceeds in three steps. First, it briefly reconstructs the G77 battle for a recognition of wars of national liberation as international conflicts through new binding treaty law at the G77 Diplomatic Conference in Geneva (Section II). It next summarizes the mostly negative Western counter-​reactions (Section III), and the related contemporary debates over an alleged revitalization of ‘just war’ theories (Section IV). It concludes with reflections on the unlikely victory of the battle over full recognition of wars of national liberation (V).

II.  The G77 line-​up When 126 national delegations gathered in 1974 in Geneva with the declared aim to bring the four Geneva conventions of 1949 in line with changing realities of warfare, the issue of wars of national liberation threatened to derail the whole project before the substantive deliberations had even started. In the very first plenary session, third-​ world countries demanded that representatives of national liberation movements be invited to participate in the conference. After protracted negotiations, national liberation movements inter alia from Guinea, Mozambique, South Africa, Palestine, and Vietnam were allowed to join the conference without the United States (US), Portugal, South Africa, and Israel leaving the Diplomatic Conference for good under protest. Yet, this was only the procedural prelude to the contested substantive issue of whether or not wars of national liberation should be classified as international armed conflicts or internal conflicts. The G 77, supported by the socialist states as well as by Norway and Australia, sponsored an amendment to the ICRC draft of Article 1 of the First Additional Protocol, according to which wars of national liberation would qualify as international armed conflicts. This highly controversial amendment in a modified wording eventually became Article 1(4) of the First Additional Protocol: The situations referred to in the preceding paragraph include armed conflicts in which peoples are fighting against colonial domination and alien occupation and against racist régimes in the exercise of their right of self-​determination . . .

Art 1 as a whole in 1976 was adopted with an overwhelming majority. However, because of para 4, Israel voted against and eleven Western Countries, including updated April 2008) in Rüdiger Wolfrum (ed), Max Planck Encyclopedia of Public International Law accessed 24 May 2019.

Recognition of Wars of National Liberation  57 the US, Canada, France, the UK, Italy, and Western Germany, abstained. The practical relevance of this provision for the decolonization struggle in 1977 was limited also because the Portuguese empire, as the last formal European colonial empire, collapsed in 1974 during the early stages of the deliberations. Moreover, the US intervention in the Vietnam war ended in 1975 during the ongoing controversy in Geneva over the appropriate representation of the Vietnamese people. Given that the inserted clause in Article 1 para 4 also included peoples fighting against ‘alien occupation and racist regimes’, its practical relevance was (for the time being) reduced to the Palestinian cause and the ANC struggle against the South African apartheid regime. While a lot of the wrangling about recognizing liberation movements had to do with geopolitical differences regarding the Vietnam war and Cold War antagonisms more generally, the motives behind the battle over Article 1 para 4 should not be reduced to these factors. As already indicated previously, for the third world, much more was at stake. For this very reason, the G77 had prepared itself well for this battle. Over the preceding ten years the G77 had in an impressive coordination effort launched and defended a whole range of UN initiatives to internationalize liberation movements through UN recognition of their causes and actions, as well as through injecting new meaning in known principles of international law. It had done this most obviously by invoking the right to self-​ determination, which had been mentioned in the UN Charter already, although its exact legal content had been contested since the early days of the world organization. It eventually became a universally recognized right of peoples living under colonial domination during the 1960s. In 1965, Resolution 2105 of the UN General Assembly (UNGA) even declared that ‘the continuation of colonial rule and the practice of apartheid . . . threaten international peace and security and constitute a crime against humanity’.12 The UNGA in this resolution had also recognized ‘the legitimacy of the struggle by the peoples under colonial rule to exercise their right to self-​determination’ and invited ‘all States to provide material and moral assistance’ to national liberation movements.13 It had stopped short of granting liberation movements an explicit jus ad bellum even though it recognized the legitimacy of the quote ‘struggle’ and of foreign ‘material [ . . . ] assistance’. A similar consensus formulation can be found in the famous Friendly Relations Declaration adopted in 1970. Prepared by the Sixth Committee, however, UNGA Resolution 3103, which had been adopted less than one year before the Diplomatic Conference, showed that Western states still objected to the ‘internationalization’ of wars of national liberation. They were reluctant to support UN documents promoting the struggle against the so called ‘oppression triad’, which consisted of three condemned 12 Implementation of the Declaration on the Granting of Independence to Colonial Countries and Peoples, UNGA Res 2105 (XX) (20 December 1965), Preamble. 13 ibid para 10.

58  Jochen von Bernstorff forms of domination, namely ‘colonial, alien, and racist domination’. In UNGA-​ resolution 3103 on the ‘legal status of combatants’ fighting wars of national liberation, the Assembly, without Western support, solemnly proclaimed that struggles for self-​determination of peoples under ‘colonial and alien domination and racist regimes’ were not only ‘legitimate’ and in ‘full accordance with the principles of international law’ but also ‘international armed conflicts’ in the sense of the 1949 Geneva Conventions.14 On this basis Abi-​Saab in 1974, during the negotiations on Article 1, could argue that the proposed amendment at least was not new but had already been adopted within the UN at various occasions and reflected a well-​established international practice. In the words of the official records: Mr. Abi-​Saab (Arab Republic of Egypt), introducing amendment CDDH/​I/​l11 and Add.l of which he was a co-​sponsor, said that wars of national liberation had formed a very important category of armed struggle in the post-​1945 period and a number of them were still continuing. Contemporary international law recognized such wars as international armed conflicts. United Nations General Assembly resolution 3103 was the latest in a stream of resolutions of important international bodies proclaiming that principle. The General Assembly had, indeed, gone further by recommending sanctions against colonial, alien and racist regimes and the provision of assistance to specific liberation movements, and the Security Council in one case had ordered mandatory sanctions. It would be difficult to explain all such international action if wars of national liberation were to be considered merely as armed conflicts of a non-​international character. Existing practice provided abundant proof of the international nature of such conflicts.15

As Abi-​Saab’s line of argument makes clear, the G77 pushed for a formal treaty-​ based endorsement of a long trajectory of UN documents that, at least in part, were consensus resolutions. Hence, what was also on the table in Geneva was the G77 project to change international law through the UNGA. The majority of the newly independent states and their new ruling elites in the process of decolonization had accepted to endorse the legal idiom of the colonizers—​European international law, including the central notion of sovereign statehood. This acceptance was both considered the prize for independence and to be a future safeguard against recolonization. Yet, the contemporary legal debates also show that many third-​world representatives supported entering into this potentially Faustian agreement with 14 Basic Principles of the Legal Status of the Combatants Struggling Against Colonial and Alien Domination and Racist Regimes, UNGA Res 3103 (XXVIII) (12 December 1973), adopted by 83:13:19 votes; Austria, Belgium, Brazil, France, West Germany, Israel, Italy, Luxemburg, Portugal, South Africa, the UK, the US, and Uruguay in opposition. 15 ‘Summary Records’ (n 1), CDDH/​I/​SR.2, para 8.

Recognition of Wars of National Liberation  59 the hope and prospect that the third world would be able to change the rules of the game once having been formally recognized as a player. Such hopes crystalized in the concept of the UNGA as a ‘legislator’ of a new, more representative, and solidaristic community of states. If, however, all these resolutions and declarations were considered as having no effect on international law as such, the general G77 reform project had failed. That is why in particular third-​world international lawyers like Abi-​Saab insisted on the recognition of previous UN practice as legally relevant. Yet, a French delegate to the Diplomatic Conference, speaking for the majority of Western countries, rejected this third-​world claim out of hand, holding ‘that the United Nations and the [International Committee of the Red Cross] ICRC pursued their activities on entirely different levels. The United Nations was a political body whose role was to find political solutions to specific problems of the moment, whereas humanitarian law must provide protection for all war victims at all times’.16 In his 1979 Hague Lectures, Abi-​Saab forcefully denied the validity of the attempt to distinguish between the UN as a ‘political’ institution and emanations of international legality in other settings: ‘Nobody can deny that the United Nations has become the principle instrumentality for the development of international law’17. Many Western governments and international lawyers from the mid-​1960s onwards attempted to delegitimize all those UN organs as ‘politicized’ that—​with the new Asian/​African majority—​adopted documents that were not in line with their political agenda.18 Given that the battle for international law in the decolonization era had been launched primarily on these institutional platforms, this strategic move of the West went to the heart of the G77 project for a new international law. Conflicts over substantive issues thus increasingly became conflicts over which institution had the power to decide these questions. As long as the Western bloc had been able to mobilize majorities in the UNGA during the late 1940s and early 1950s, it was portrayed as the most democratic and representative organ and actively used by Western states even to bypass the UN Security Council (UNSC), the most famous example being the legally contested US-​led Uniting for Peace campaign during the Korean War. But with the UN Conference for Trade and Development (UNCTAD), the UN Economic and Social Council (ECOSOC), and, ultimately, the entire UNGA becoming sites of third-​world reformism, the UN was increasingly sidelined as ‘politicized’ by Western states and scholars. In that sense, post-​colonial international legal hegemony was also based on the power

16 ibid CDDH/​I/​SR.2, para 49. 17 Georges Abi-​Saab, ‘Wars of National Liberation in the Geneva Conventions and Protocols’ in Collected Courses of the Hague Academy of International Law, vol 165 (Brill Nijhoff 1979) 353, 378. 18 Taslim O Elias, Africa and the Development of International Law (Sijthoff 1972) 74, arguing in general for a legislative function of the GA; cf Christian Tomuschat, ‘Die Charta der wirtschaftlichen Rechte und Pflichten der Staaten:  Zur Gestaltungskraft von Deklarationen der UN-​Generalversammlung’ (1976) 36 Zeitschrift für ausländisches öffentliches Recht und Völkerrecht 444.

60  Jochen von Bernstorff to discursively legitimize or delegitimize institutional settings, inter alia, by attributing the label ‘legal’ versus ‘political’ to various institutional utterances. That Western dismissive arguments regarding the UN’s ‘legal’ credentials were often highly selective is also proven by the discrepancy between the Western perception of the legal ‘irrelevance’ of the arguably ‘politicized’ UNGA and the unabated tendency in other contexts to value UNSC practice as an allegedly clear proof of emerging and generalizable international legal trends. Abi-​Saab’s strategy at the Diplomatic Conference was to advance impeccable practice-​related lawyerly arguments for a full treaty-​based recognition of national liberation movements. By using a classic argumentative pattern, according to which international legal rules had to ‘adapt’ to changing realities, he sought to present the third-​world case as being in line with current international norms. But behind the technical arguments, a deeper symbolic dimension of this battle for recognition became apparent and surfaced in statements of third-​world governments and liberation movements. Qualifying these wars of liberation as ‘internal’ conflicts was seen as an (ex-​post facto) approval of the colonial project and of the prior incorporation of colonial territories into the metropole’s territory and state apparatus. It seemed to deny the historical fact that the metropole and its institutions constituted ‘foreign’ rule over a distinct entity. Hence, constructing resistance against colonial rule as an ‘internal’ affair in the eyes of the newly independent states denied the existence of a separate non-​colonial identity before and during colonial intervention. As the Ugandan representative to the Diplomatic Conference opined: Colonialism was invasion par excellence: the colonial armies came from Europe, they were not local forces. The struggle waged by colonized peoples against the invaders therefore could not be included among the situations envisaged in draft Protocol II. Moreover, the international community, expressing itself through the United Nations, had recognized that colonized peoples had identities of their own, different from that of the metropolitan power which had colonized them, and that it was for the liberation movements of their own region, not for the colonizing Power concerned, to express the aspirations of such peoples.19

It was as if, through the negation of the international character of wars of liberation in this formal treaty document, the recent struggles for complete delegitimation of colonialism through the UN were reversed. From this perspective, by classifying these wars as ‘internal’ conflicts, colonial rule reappeared on the international scene as a prima facie legitimate exercise within and through the formal edifice of the state of the colonizer. Given that most formal colonial empires had



19

‘Summary Records’ (n 1), CDDH/​I/​SR.5, paras 29–​30.

Recognition of Wars of National Liberation  61 ceased to exist at the time of the negotiations, a considerable, if not the main, thrust of the proposed G77 amendment was an ex post formal acknowledgment of the aggressive and interventionist nature of colonialism in its various historical emanations. Those who had been forcibly colonized in the eyes of third-​world elites were a subject of international law, a national entity that now rose to its feet and liberated itself from external occupation and repression. In the words of a representative from the Zimbabwean liberation movement (ZANU): What those who opposed amendment CDDH/​I/​41 and Add.l to 7 were trying to do was to give preferential treatment to the colonialist, racist and imperialist regimes. As the representative of Uganda had stated at an earlier meeting, those regimes could not claim members of the liberation movements as their subjects merely because they had occupied their countries for so long. The fact that such regimes had found their harsh laws incapable of subduing the indigenous inhabitants of the countries they occupied revealed the true state of affairs.20

This statement demonstrates to what extent the third-​world struggle was based on the ontological foundations of European nationalism and that the issue of ‘internal’ versus ‘international’ conflict went to the heart of these foundations. Nations were conceived of as ontological entities that had a formal right not to be governed by external forces. Colonialism was likened to a state of (permanent) military occupation, which in humanitarian law conceptually was not considered to entail the demise of the occupied nation. That was also the deeper reason for the success of the external oppression triad of colonial domination, alien occupation, and racist régimes, which made perfect sense for the G77 not only because of Arab solidarity with the Palestinians and African solidarity with the ANC and ZANU, but also conceptually by combining three structural emanations of external oppression of a pre-​existing nation or people. This pro futuro dimension in the view of the third world attempted to unite past and current ‘anti-​Western’ struggles, including those persisting in the former white settler colonies, in one counter-​hegemonic formula.21 At the same time, the triad was resented by Western experts because it allegedly enmeshed decolonization struggles with two current geopolitically sensitive conflict situations (Palestine and South Africa). Given that the call for decolonization by the independence fighters was generally being justified in the ontological semantic of European nationalism, the denial of the existence of an international conflict repudiated the existence of individual nation-​and statehood in the third world before formal independence. Registering wars of national liberation under the ‘internal’ conflict category thus at least



20 21

ibid CDDH/​I/​SR.6, para 7. On the concept of self-​determination, see Introduction this volume.

62  Jochen von Bernstorff implicitly refused to acknowledge a central ideological substratum of twentieth-​ century decolonization movements.

III.  The Western line-​up Western governments in the Diplomatic Conference defended the classification of wars of national liberation as purely ‘internal’ conflicts with equally impeccable legal arguments. They stated that they did not have the intention to negate the legitimacy of specific national liberation movements while concurrently raising systematic arguments for denying these conflicts an international status in the sense of international humanitarian law. These conflicts took place within one recognized subject of international law and therefore could from an ‘objective’ perspective not be classified as international conflicts: Mr. CASSESE (Italy) said that his delegation was unable to support proposed amendment [ . . . ]. The Italian delegation had always strongly supported the right to self-​determination in accordance with the United Nations Charter, but did not believe that struggles to exercise this right constituted international conflicts. Such struggles came within the purview of Protocol II, since they were, if viewed objectively, internal conflicts. Furthermore, to include them in Protocol I would disrupt the whole system of the Geneva Conventions, which were based on the fundamental distinction between internal and international armed conflicts.22

The claim to ‘objectiveness’ constituted an open or indirect rejection of an allegedly ‘subjective’ approach taken by the G77. According to Western critiques, what the G77 attempted with its proposal was to inject ‘subjective’ criteria into an ‘objective’ system of international humanitarian law. The oppressiveness of a regime or its questionable legitimacy could not serve as relevant legal criteria for the distinction between internal and international conflicts. Another argument was that it was neither helpful nor necessary to include liberation movements in the First Additional Protocol. Liberation movements would be overburdened with the obligations set out in the First Additional Protocol, which were designed to apply to states and their standing armies. Behind these systematic and practical arguments against the G77 amendment were broader political and legal concerns. Strategically, the US-​led Western bloc in the UN was very reluctant to support both the ANC and the PLO, as Israel and the South Africa Apartheid regime were two Western capitalist ‘satellites’ in fragile regions of highest geopolitical importance.



22

‘Summary Records’ (n 1), CDDH/​I/​SR.3, para 36.

Recognition of Wars of National Liberation  63 Additionally, there was the concern that internationalization validated the third-​ world claim that colonial conquest had been an ‘aggressive’ act with significant implications for the ius ad bellum legality of colonialism. In particular, former colonial empires had no interest in any legally binding ius ad bellum incrimination of colonialism as ‘aggression’ or a ‘crime’, which could also have strengthened restitution claims by the colonized. Of course, such broader considerations related to the end of formal empires and the Cold War were not openly addressed by Western states. Governmental experts rather voiced technical, systematic, and formal concerns. At the Diplomatic Conference, the Swiss expert Pictet struck a common Western note, saying that: the other proposed amendments tended to establish a particular category of conflicts on the basis of subjective criteria stemming from the causes of those conflicts and the aims of the parties. That entailed a move from the field of jus in bello to a zone which held dangers for the Conference, namely, jus ad bellum. His delegation believed that it would be very dangerous, and against the spirit of humanitarian law, to classify armed conflicts on the basis of non-​objective and non-​legal criteria. In adopting that position, his delegation was not expressing an opinion on the legitimacy of national liberation struggles with which many people in Switzerland felt in sympathy.23

Cassese’s and Pictet’s statements are representative of a general attitude of Western scholars regarding wars of national liberation. Scholars would generally not question the legitimacy of specific armed struggles against colonialism and repressive regimes; however, they would insist that these were internal conflicts taking place within one single state subject of international law. The duality required for the existence of an ‘international’ conflict could only be the result of the successful liberation struggle. That this attitude on a symbolic level was perceived by third-​world representatives as an ex post validation of the colonial project and a reversal of a significant body of UN practice is either brushed aside by Western experts or considered as not being important enough to rethink the classic Western categorizations of colonial revolts as ‘internal’ rebellions. Moderately sensitive to the position of third-​world representatives and scholars regarding the independence struggles were only a handful of Western scholars, including Charles Chaumont, Bert Röling, Quincy Wright, and Richard Falk. Western scholars advanced three main legal arguments against ‘internationalization’ of wars of national liberation. First, the right to self-​determination under the Charter did not constitute a right to formal decolonization. Second, liberation movements had no right to self-​defence under Article 51 of the UN charter against the armed forces of the



23

ibid CDDH/​I/​SR.3, para 13.

64  Jochen von Bernstorff metropole. Third, the alleged revitalization of ‘just war’ thinking was a dangerous plot by the socialist bloc against Article 2(4) of the UN Charter and the West. Regarding the principle of self-​determination, during the 1960s it became increasingly difficult to deny the existence of this Charter right and its relevance for decolonization struggles. The content of this right, however, was notoriously unclear, and whether it included a right to break away from an existing state entity has never been fully resolved in international legal discourse. Yet, as third-​world scholars could plausibly argue, UN resolution practice had continuously invoked a specific right to self-​determination for the colonized, which included a right to form an independent state and an incrimination of violence used by the metropole to prevent this from happening. Western scholars usually rejected far-​ reaching consequences of an acknowledged legal principle of self-​determination, in particular, the right to form an independent state. For example, in 1967 in a widely quoted ICLQ article, CJR Dugard argued that the UN Charter did not stipulate a right to independence for the colonies. As the Charter provisions on the Trusteeships in his view demonstrated, a right to independence of the colonized had not been inserted in the Charter.24 Moreover, proposals to that effect had been rejected in 1945 in San Francisco. Yes, there was a principle of self-​determination of the colonized but no right to independent statehood. According to the young researcher from Cambridge, UNGA resolutions proclaiming such a right could not amend the Charter and therefore had no legal effects. As to a right to self-​defence against the metropole, national liberation movements had in many instances in practice invoked this justification. Most famously, in 1954 the Algerian FLN had argued that it acted in self-​defence against the French invasion of 1830.25 Moreover, in 1963 at an OAU summit Guinean President Sekou Touré held it to be ‘essential that this conference lays down a deadline for the end of foreign domination in Africa, after which our armed forces should intervene in the legitimate defence of the African Continent against aggressors’.26 Given that active military assistance to armed rebels abroad prima facie violated the prohibition of the use of force in Article 2(4) of the UN Charter, and in the absence of UNSC resolutions authorizing military support for the liberation movements, the decisive legal question was whether or not such support for liberation movements could be justified as collective self-​defence under Article 51 of the UN Charter. Politically, the G77 here also was united in its claim that self-​defence could be invoked against the metropole whenever decolonization movements confronted repression by colonial powers. This claim was regularly also supported in the UN by the Soviet-​led Eastern European bloc and Cuba. After its Goa intervention in

24 Dugard (n 2). 25 Arnold Fraleigh, ‘The Algerian Revolution as a Case Study in International Law’ in Richard A Falk (ed), The International Law of Civil War (Johns Hopkins Press 1971) 190. 26 Quoted in Dugard (n 2) 165.

Recognition of Wars of National Liberation  65 1961, India also argued that it had acted in self-​defence liberating the Goans from colonial rule. For, according to Nehru’s government, the Goans had always been Indians historically.27 Most Western states and scholars were very sceptical as to granting liberation movements a right to self-​defence under Article 51 of the UN Charter. As a reaction to external support for liberation movements, both South Africa and Portugal had complained several times to the UNSC that the African Union had violated the Charter by organizing and providing assistance to liberation movements. Louis Henkin, Quincy Wright, and John Dugard all rejected the self-​defence claims. In these case constellations no current ‘armed attack’ by the colonial power had occurred because the main title-​conferring colonial invasion had taken place long ago. Moreover, colonial ‘discovery’, ‘conquest’, or ‘occupation’ had provided ‘good title’ according to international law in force at the time. It could not retrospectively be turned into ‘aggression’. Invoking self-​defence required existing indigenous statehood—​a state of affairs that most liberation movements aspired to as a result of their current armed struggles and thus a status they had not yet attained in the eyes of most Western scholars. The American scholar Ginsburg even held that claiming a right to self-​defence for national liberation movements was an archaic and unfair reaction of the third world with the result that the colonial powers were left without any legal protection: [ . . . ] the whole plaidoyer simply smacks of an enthusiastic espousal of the tribal rule of an eye for an eye, and a tooth for a tooth. One may counter that by pointing out that even if the original methods by which certain countries acquired colonies were very seldom simon pure, two wrongs have never yet made a right. [ . . . ] Indeed, having thus been branded a past aggressor and virtually placed beyond the pale of the law, a colonial power is expected then meekly to submit to whatever treatment is meted out to it, without reacting, without protecting its interests, without recourse to any remedy except, as it were, to take its medicine without a whimper. It cannot even take defensive measures, for, according to the present point of view, the national-​liberation movement is presumed to be acting in self-​defense and there can be no self-​defense against self-​defense.28

Yet, despite strong opposition against using the notion of self-​defence against permanent colonial ‘aggression’ in the context of wars of national liberation in the West, some authors were more nuanced in their legal analysis than others. Quincy Wright in his AJIL comment on the Goa incident acknowledged that there was a

27 See the Indian statements before the Security Council in Quincy Wright, ‘The Goa Incident’ (1962) 56 American Journal of International Law 617. 28 George Ginsburgs, ‘ “Wars of National Liberation” and the Modern Law of Nations: The Soviet Thesis’ (1964) 29 Law and Contemporary Problems 910, 922–​23 (emphasis in original).

66  Jochen von Bernstorff difference of opinion between third-​world states and Western states on the question of the acquisition of ‘good titles’ by colonialism and in this respect conceded some ground. The peoples in the colonial territories at the time of colonial occupation had, in his view, not been part of the European international legal system, nor had they in a legally valid fashion agreed to be incorporated into European empires.29 European international law had been external to their legal cultures and customs. Even if colonialism had created ‘good title’ from a European perspective, this claim could back then not have produced binding legal effects for the colonized. According to Wright, the only counter-​argument against this valid contention was that, by entering into the state system after independence, the new states had tacitly accepted European international law lock, stock, and barrel, and in all its prior historical emanations.30 That the West regarding ‘good’ colonial ‘titles’ was in a relatively week argumentative position is illustrated by the contemporary need of Western authors and governments to invoke the vague doctrinal metaphors of ‘tacit consent’ and ‘intertemporal law’ in order to construct lawful colonial conquest and interventions.

IV.  ‘Just war’ and the birth of the concept of the ‘terrorist’ The third and perhaps most fundamental Western argument against granting an ius ad bellum to liberation movements was the alleged destruction of the Charter prohibition of the use of force by a new ‘just war’ theory.31 Here, the alleged or real Cold War dimension of the discourse on wars of national liberation is particularly relevant. It is the link between the quest of the colonized for independence and socialist ideologies that, on a theoretical level, had been famously construed by Lenin and Mao; in its various variants for many Western actors it posed a disturbing challenge to international law and the whole capitalist Western hemisphere. Lenin’s theory of the class war against capitalist oppression that had to be fought by irregular forces if necessary was a highly influential interwar approach to the issue of liberation wars. It was based on the Clausewitz dictum that war was a ‘continuation of politics’, and added a Marxist telos to the Prussian concept of liberating a ‘nation’ from foreign rule through a great nationalist uprising. Wars for Lenin in 1915 were ‘defensive’ and ‘just’ when they were waged against an oppressive regime, be it internal or external: 29 Wright (n 27) 630. 30 ibid. 31 Interestingly, only China officially used ‘just war’ arguments in the context of the Diplomatic Conference, while third-​world governments were very sceptical as to this argument, cf Heather A Wilson, International Law and the Use of Force by National Liberation Movements (Clarendon Press 1990) 172.

Recognition of Wars of National Liberation  67 When speaking of the legitimacy of ‘defensive’ war in relation to the wars of such an epoch, Socialists always had in mind precisely these objects, which amounted to revolution against medievalism and serfdom. By ‘defensive’ war Socialists always meant a ‘just’ war in this sense (Liebknecht once expressed himself precisely in this way). Only in this sense have Socialists regarded, and now regard, wars ‘for the defence of the fatherland,’ or ‘defensive’ wars, as legitimate, progressive and just. For example, if tomorrow, Morocco were to declare war on France, India on England, Persia or China on Russia, and so forth, those would be ‘just’, ‘defensive’ wars, irrespective of who attacked first; and every Socialist would sympathize with the victory of the oppressed, dependent, unequal states against the oppressing, slave-​ owning, predatory ‘great’ powers.32

After the Second World War, Mao, with his ‘long march’ to Beijing, became the role model of merging nationalism and Marxism into a powerful ideology supporting an impressive war effort of mainly irregular fighters against two standing governmental armies (Japan and the Chinese Nationalist Party). Inspired by Mao’s theory of warfare, during the 1950s Castro and Guevara cultivated a similar ideological blend of nationalism and Marxism to conduct and justify their guerrilla wars to ‘liberate’ Cuba and other Latin American states. Political links between some decolonization movements and foreign Marxist governments became particularly obvious for the West in the 1975 Guevara-​led Cuban intervention in Angola on the side of Agostinho Neto, the head of the socialist faction of the Angolan independence movement against Portuguese rule. Socialism of course during that era meant different things to different governments and intellectuals. During the 1960s and 1970s, socialist states and intellectuals led heated debates on the limits of a globalized class war and the notion of ‘peaceful co-​existence’.33 The more aggressive version of the armed and irregular struggle on a worldwide level had been propagated in Guevara’s famous message to the 1966 Havana Tricontinental Third World Conference, in which he pointed to hatred as an essential element of the armed struggle: a relentless hatred of the enemy, impelling us over and beyond the natural limitations that man is heir to, and transforming him into an effective, violent, selective, and cold killing machine. Our soldiers must be thus, a people without hatred cannot vanquish a brutal enemy. We must carry the war into every corner,

32 Vladimir I Lenin and Grigory Y Zinovyev, ‘Socialism and War: The Attitude of the Russian Social-​ Democratic Labour Party Towards the War’ in Vladimir I Lenin, Collected Works, vol 21 (first published 1915, Progress Publishers 1977) 299–​317. 33 On this notion, see Edvard Kardelj, Socialism and War: A Survey of Chinese Criticism of the Policy of Coexistence (Jugoslavija Publishing House 1960).

68  Jochen von Bernstorff the enemy happens to carry it: to his home, to his centres of entertainment; a total war.34

Guevara’s vision of an irregular and violent transnational class struggle was in stark contrast to the positions of the third world voiced ten years earlier at the Bandung Conference in 1955. Third-​world representatives under Nehru’s leadership in Bandung still attempted to keep a more neutral stance in the ideological Cold War confrontation between the two superpowers and to uphold and defend central UN Charter principles, including non-​intervention in internal conflicts and the prohibition of the use of force. However, in the final declaration adopted at the 1966 ‘Tricontinental’ Third World Conference in Havana , the so-​called ‘solidarity movement’ had gone one or perhaps two steps further: The Conference proclaims the right of peoples to their political, economic and social liberation by the means they deem necessary, including armed struggle, so as to achieve that goal.35

Here, a right to use force for the purposes of ‘political, economic, and social liberation’ from capitalism and ‘US imperialism’ in Vietnam and elsewhere was explicitly proclaimed—​accompanied by a solemn claim to support such wars of liberation. The conference went well beyond the assumption of a right to engage in wars of liberation against colonial powers by using a broad definition of the legitimate purpose of an armed struggle, including the fight against basically any form of ‘neo-​colonial’ or social domination. The conference included leftist guerrilla movements who at home fought against their new third-​world governments. After the conference the Organization of American States condemned the decisions taken at the Tricontinental as ‘a threat to peace’.36 This more radical stream of liberation rhetoric, however, should not be equated with the UN-​based G77 efforts to internationalize wars of national liberation laid out in Section III. Abi-​Saab’s attempt to achieve full recognition of national wars of liberation in the colonial context aimed at integrating these wars into the pre-​ existing ius in bello and ius ad bellum ‘system’. By doing so, these liberation movements were supposed to take on all humanitarian law obligations usually foreseen for states, hereby also taming and limiting the means of warfare, including restraining violence vis-​à-​vis civilians and prisoners of war. The envisaged result of these legal battles was the exact opposite of the Schmittian ‘total war’ cherished 34 Brian Loveman and Thomas M Davies (eds), Che Guevara: Guerilla Warfare (3rd edn, SR Books 1997) 190. 35 Quoted after Dieter Schröder, Die Konferenzen der ‘Dritten Welt’: Solidarität und Kommunikation zwischen nachkolonialen Staaten (Hamburger Gesellschaft für Völkerrecht und Auswärtige Politik 1968) 194. 36 Chile, Uruguay, and Mexico abstaining.

Recognition of Wars of National Liberation  69 by Guevara. The first Additional Protocol also clearly qualified the making of civilians an ‘object of an attack’ as a war crime in Article 85(3)(a), hereby outlawing this typical form of ‘terrorist’ attacks. Nonetheless, the more radical and completely deformalized approach championed by Guevara, in particular in the eyes of the US government and many of its NATO allies, could be invoked to discredit the G77 battle as a more or less hidden Leninist coup against all Western-​oriented states, and against international law as a whole. It is in this context that the concept of ‘terrorism’ has evolved in international law, pre-​shadowing various unsuccessful efforts in the 1980s to draft international conventions to suppress and combat ‘terrorism’. As the following remark of a high-​ ranking Pentagon official demonstrates, Guevara’s ‘brutal enemy’ and the Western concept of the ‘terrorist’ are symmetric notions, both attempting to create an antagonism (the ‘other’), through which the limits of intra-​and interstate violence can be suspended: In my view, the upshot of the Diplomatic Conference was a pro-​terrorist treaty, that calls itself humanitarian law. It is a vindication of the rhetoric, the aims, and the practices of terrorist organizations.37

Whether or not the US should ratify the Additional Protocols for this very reason was subject of controversial debates among US international legal scholars.38 The concept of the ‘terrorist’ as being a person that has (and deserves) no rights and no protection under international law because of his/​her evil motivations was a US-​ led counter-​reaction to the attempt by the third world to bring legitimate insurgencies against oppressive regimes under the scope of international humanitarian rules. The position according to which irregular fighters promoting non-​Western ideologies had to remain ‘unprivileged fighters’ without any rights under international law has since then evolved into the ubiquitous concept of the ‘terrorist’. To be a ‘terrorist’ in this understanding is to be a person without any rights under international law—​a person that can be killed by everybody everywhere in a limitless global ‘war against terrorism’.

V.  The unlikely victory The successful battle for the recognition of wars of national liberation as international armed conflicts at the Diplomatic Conference in Geneva, despite its

37 Douglas J Feith, ‘Protocol I: Moving Humanitarian Law Backwards’ (1984) 19 Akron Law Review 531, 534, quoted in Oeter (n 4). 38 Cf. Abraham D Sofaer, ‘Agora: The U.S. Decision not to Ratify Protocol I to the Geneva Conventions on the Protection of War Victims’ (1988) 82 American Journal of International Law 784, 910–​25.

70  Jochen von Bernstorff marginal practical relevance, was a historic moment for international law. Article 1(4) of the First Additional Protocol was nothing less than the first treaty-​based proscription of colonialism. By classifying liberation movements as international legal subjects on a par with the colonizer, all prior justifications for colonialism in European international legal discourse were cast into doubt. There was not only a right to strive for decolonization, but also the whole concept of the colonial state was fundamentally challenged with potentially retroactive effects. However, it was an unlikely victory because, in this setting, the third world had to fight using the newly appropriated language of the colonizer, which—​as Nandy diagnosed—​ always comes with inherent limitations for the colonized. At the same time, the claim the G77 made at the conference did transcend the limits of this discourse. Colonialism in its intimate relationship with the idea of European statehood conceptually needed its ‘other’—​the ‘non-​civilized’. The difference between the ‘civilized’ and the ‘non-​civilized’ thus became an essential or even constitutive element of modern international law (Anghie). Hence, the recognition of an international conflict instead of an internal rebellion, and thus the recognition that even before formal decolonization colonizers and colonized were sovereign equals challenged a persisting discursive structure of international law. Even though this fundamental issue was presented by both sides using formal arguments about practice, UN resolutions, existing conventions, systemic constraints, and the like, at a deeper level it went to the heart of modern European international law. If this deeper level had been specifically addressed in these debates or in the legal texts under discussion, the Diplomatic Conference would have imploded. This victory also had a tragic dimension. Not only because the ideology of nationalism endorsed by the third world under many of the post-​independence rulers later stabilized despotic rule, employing all the negative endowments of European statehood, such as excessive militarism and the employment of the repressive (proto-​) state structures left by the colonizers. Another typical postcolonial syndrome according to Ashis Nandy was that the former common feeling of weakness among colonized elites was being replaced ‘with an unending search for masculinity and status’. Colonial violence was thus often perpetuated in the form of governmental oppression in the newly independent states.39 It was a tragic victory also because of the Cold War environment, in which collusive interventionism by the superpowers in internal conflicts on the side of the new governments or by sponsoring coups became a standard practice in what was called proxy warfare. At the end of the twentieth century, the death toll in these post-​decolonization conflicts exceeded that of both World Wars combined.

39 Ibrahim J Gassama, ‘Bandung 1955: The Deceit and the Conceit’ in Luis Eslava, Michael Fakhri and Vasuki Nesiah (eds), Bandung, Global History, and International Law: Critical Pasts and Pending Futures (CUP 2017).

3

The Developmental State Independence, Dependency, and the History of the South Luis Eslava*

I. Introduction The battle for international law during the era of decolonization was to a large extent a battle fought over the nature, function and objectives of the state. Already the pre-​given endpoint of political emancipation according to the international legal order of the mid-​twentieth century, the task facing the first generation of post-​ colonial leaders was to domesticate, harness, and direct the state towards a new future. Crucially, and also tragically, perhaps, their struggles to this end were radically shaped by the development project—​another, this time younger child of the international legal order. The state, development and international law were, in this order of things, three of the main coordinates that came to organize the decolonization of peoples in the South. Today, several decades after the end of formal imperialism, we are still grappling with the very particular political, economic, social and administrative formation that resulted from this battle: the ‘developmental state’. In this chapter, I  examine the genesis and importance of the developmental state for our thinking about the period of decolonization and, more generally, the history of the global order. Using Latin America’s much earlier experience of colonialism and post-​coloniality, I show how some of the core elements that would eventually coalesce into the developmental state emerged first in this context, coming gradually to define the outer limits of what was thinkable and doable in the rest of the decolonizing world . As we shall see, the developmental state proved, during the second half of the twentieth century, a very difficult beast to harness in the interests of Southern populations, both in Latin America and beyond. Too much a part of the larger project of modernity, too close to the institutional machinery of the old colonial powers, and too dependent to the ‘advanced’ economies, the developmental state * I thank Rose Parfitt for her close reading of early versions of this chapter, Eric Loefflad for his invaluable research assistance, and Jenifer Evans for her editorial support. All shortcomings are fully mine. Luis Eslava, The Developmental State: Independence, Dependency, and the History of the South In: The Battle for International Law: South-North Perspectives on the Decolonization Era. Edited by: Jochen von Bernstorff and Philipp Dann, Oxford University Press (2019). © The Several Contributors. DOI: 10.1093/oso/9780198849636.003.0004

72  Luis Eslava promised much yet compromised more at every turn. As Wilder has put it, ‘[t]‌he world-​historical transformation known as “decolonization” was simultaneously an emancipatory awakening of peoples [and] a heteronomous process of imperial restructuring’.1 My argument here is that the developmental state was the vehicle through which this imperial restructuring was executed. The chapter is divided into four sections. Section II explains why the developmental state should be understood as a common feature right across the South, rather than being confined to the description of states in which development is considered to have been successful. Section III shows how Latin America’s experience of independence and participation in the formation of the international legal order from the late-​nineteenth century established decolonization’s enduring coordinates. Section IV analyses the evolution of the developmental state in Latin America from the 1950s to the mid-​1970s as expressed through import substitution industrialization strategies (ISIs)—​the region’s response (and soon the rest of the developing world’s) to the broader international turn to development as a key post-​war geopolitical discourse. Section V then turns to the contestations starting from the mid-​1960s around the modality of development promoted by ISIs. Under the rubric of ‘dependency theory’, radical proposals began to surface in Latin America and beyond, sketching out resilient connections between colonialism and the international order. These proposals questioned traditional readings of the developmental state and its capacity to foster a different future for the South. The state-​centric capitalism of ISIs was thus confronted with a sustained critique that portrayed the ‘modern’ world as an interlocking system of unequal power relations. The post-​war international order was already in motion, however, unfolding in a manner that the dependentistas were unable to counteract. This was an order predicated on legalized patterns of unequal trade, debt accumulation, environmental exploitation, and social inequality. The developmental state both enabled these processes and contained the agitations that resulted from them. In short, this chapter undertakes an unusually long view of the genealogy of the relationship between the institution of the state and the idea of development, and to the disputes it gave rise to concerning independence and dependency. It does so in order to reveal how claims to sovereignty and self-​determination came to be caught up, during the decolonization years, in legalized developmental disciplines attached to the wider project of nation-​building. By the mid-​1970s, when many in the South united around the idea of a New International Economic Order (NIEO), these routines had already shaped the Third World so deeply that it was no longer possible to disentangle the everyday life of its institutions and citizens from neo-​ colonial patterns of economic, political, and social exchange. Meanwhile, radical 1 Gary Wilder, Freedom Time:  Negritude, Decolonization, and the Future of the World (Duke University Press 2014) 241 (hereafter Wilder, Freedom Time). See also, Adom Getachew, Worldmaking after Empire: The Rise and Fall of Self-​Determination (Princeton University Press 2019).

The Developmental State  73 attempts to undo these trends—​to enact other modernities—​were neutralized by organized violence aimed at preserving the state as the preferred unit of capital accumulation and social control. A particular kind of global capitalism, combined with an equally distinctive kind of local disciplining, came to dominate the South, and is today coming increasingly to dominate also those ‘Southern’ parts of the Global North.

II.  Locating the developmental state The origins of the developmental state are usually traced back and contained, in the scholarly literature, to the plan-​driven and economically high-​achieving state that emerged in East and South-​East Asia after the Second World War. Textbook examples include Japan, Singapore, South Korea, and Thailand.2 However, the connection between the state and the development project is in fact historically and substantively much broader. Historically, the form and function of the state have been associated with the larger project of modernity, understood as a European phenomenon that emerged in the fifteenth century and evolved through the sixteenth to the nineteenth centuries.3 Territorial control, the facilitation of transport and circulation, the establishment of national armies and national bureaucracies, the use of public health discourses, and many others were as much expressions of modernity as they were functions of statehood. Modernity, meanwhile, was itself intertwined with ideas of national evolution and progress from the beginning. The history of the state as a ‘developmental’ unit is thus a familiar aspect of its genealogy everywhere. Nonetheless, the ‘developmental state’ as such is a specifically post-​colonial and hence Southern phenomenon. The predecessor of the modern state in Europe was, of course, the ‘absolutist state’, which possessed (thanks to emerging forms of technocratic rule) ‘an entirely new ascendency over society’, both internally and abroad.4 By contrast, the predecessor of the modern state in the South was, more often than not, the ‘colonial state’.5 This, according to Young, was defined, first and foremost, as an alien other by the colonizing power. It was, as a result, the object of differentiated institutions and particular classifications directed towards the subject population, which created and sharpened divisions between metropolitan citizens and colonial 2 See as representative of this approach and for where the term was coined, Chalmers Johnson, Miti and the Japanese Miracle: The Growth of Industrial Policy: 1925–​1975 (Stanford University Press 1982). See also, Meredith Woo-​Cumings (ed), The Developmental State (Cornell University Press 1999). 3 See especially, Quentin Skinner, The Foundations of Modern Political Thought:  The Age of Reformation (CUP 1979). 4 Crawford Young, The Colonial State in Comparative Perspective (Yale University Press 1994) 15 (hereafter ‘Young, The Colonial State’). 5 ibid.

74  Luis Eslava subjects.6 Its construction was underpinned by ‘the institutionalization of agencies of domination that at once perpetuated rule and upheld the polity’s categorization as other’.7 Through these mechanisms of control and differentiation, the colonial state enabled an imperial modality of extraction of resources and social administration predicated on European superiority and, later on, by rubrics like the ‘civilizing mission’ and the ‘dual mandate’.8 This enabled and financed the consolidation of the modern project in Europe and its universalization.9 When the first independent Latin American states began to appear in the early nineteenth century, therefore, the form and functions of the modern state were already in the process of being determined and idealized by the transformational character of modernity and by its close association with European culture and institutions.10 As Giddens describes it, European modernity and its institutions had come to offer a view of the world as in need of transformation via human intervention, industrial production, the harnessing of nature, and the establishment of a market economy—​all of which were enabled by the figure of the state.11 Latin American states emerged, in other words, with a modernizing impetus, yet one that had already been marked by an assumed distance between their own post-​colonial realities and those of their counterparts in Europe, with the latter providing the benchmark against which Latin American and Southern states more generally would be assessed (see Figure 3.1 and 3.2).12 This nexus between modernity and the state in the South was reinforced during the decolonization years, from the 1950s onwards, by the new post-​war international development institutions.13 Although heavily contested, at this point the developmental state—​as a bureaucratic centralized machinery geared towards economic and social ‘modernization’, now embedded in a fully institutionalized international order—​came gradually to be consolidated right across the South.14 6 ibid 44. 7 ibid. 8 See on international law and the different justifications for the exercise of colonial rule, Antony Anghie, Imperialism, Sovereignty and the Making of International Law (CUP 2004). 9 See, for example, Walter Mignolo, The Darker Side of Modernity:  Global Futures, Decolonial Options (Duke University Press 2011). 10 On modernity and its long-​term effects in Latin America, see Jorge A Larrain, Identity and Modernity in Latin America (Polity 2000). 11 Anthony Giddens, Conversations with Anthony Giddens:  Making Sense of Modernity (Stanford University Press 1998). 12 Figures  3.1 and 3.2 were included in Alwin Oppel and Arnold Ludwig (eds), Ferdinand Hirts Geographische Bildertafeln (Hansebooks 1884), a series of popular late-​nineteenth century books, which ‘reinforce the image of civilized Germany via-​á-​vis the rest of the world’. Jennifer Askey, ‘A Library for Girls: Publisher Ferdinand Hirt & Sohn and the Novels of Brigitte Augusti’ in Lynne Tatlock (ed), Publishing Culture and the Reading Nation: German Book History in the Long Nineteenth Century (Camden House 2010) 170. 13 See especially, Gustavo Esteva, ‘Development’ in Wolfgang Sachs (ed), The Development Dictionary: A Guide to Knowledge as Power (Zed Books 1997). 14 On this ‘Weberian’ understanding of the state and its expansion, see especially, Max Weber, ‘Politics as Vocation’ in David Owen and Tracy B Strong (eds), The Vocation Lectures (Rodney Livingstone tr, first published 1919, Hackett 2004); Bertrand Badie, The Imported State: The Westernization of the Political Order (Stanford University Press 2000).

The Developmental State  75

Fig. 3.1.  Engraving of everyday life in the highlands of Colombia. Hirt’s Geographische Bildertafeln (1884).

Fig. 3.2.  Transport in the Andes. Hirt’s Geographische Bildertafeln (1884).

As this alone indicates, in substantive terms the relation between the state and the project of development must be understood more broadly than is usual in traditional accounts of the developmental state. As suggested above, Southern states have functioned from their very inception as modernizing dispositifs, programmed to enact international requirements and aspirations by means of their

76  Luis Eslava domestic administrative actions, norms, and ethos.15 When the development project emerged as such at the end of the Second World War, the state in the South channelled its older modernizing impulse through this new idea, expanding its efforts through an international normative and institutional apparatus now openly committed to the wholesale transformation of domestic realities, from the economic to the political, and from the public to the intimate. The developmental state, then, is not limited to success stories, or to stories about how to achieve ‘development’. It should instead be understood as a ubiquitous, perennial form in the history of the Global South and indeed, in recent years, as increasingly common in the Global North.16 The expansion of the developmental state has never been predicated, however, on the replication of fully able modern figures. Instead, if we extend Echeverría’s analysis of the Latin American state to its peers elsewhere, we find that the states that have proliferated and increasingly coordinated collective life in the South are, more often than not, ‘theatrical versions, mimetic repetitions’; ‘constructions in which . . . the imaginary tends to take the place of the real’.17 ‘Repeatedly blocked off ’ by the political and economic international order, developmental states in the South have remained dependent on ‘other larger states’; ‘a situation which has meant a substantial reduction of their real power and, consequently, of their sovereignty’.18

III.  Latin America and the South By the time decolonization began in Africa, Asia and the Pacific, Latin American states had already experienced around a century and a half not only of formal independence, but also of state-​and nation-​building. Las guerras de independencia of the early nineteenth century gave birth to a new political geography, and with it the challenge of making new states viable entities in an already Eurocentric world. From Haiti (1804) and Mexico (1810) to Guatemala and Costa Rica (1821), and from Perú (1811) to Argentina (1816)—​and indeed to Brazil, with its less clear-​cut experience of independence starting in 1822—​nation-​states in the region engaged in a systematic process of self-​consolidation after their emergence. When decolonization re-​erupted in the mid-​twentieth century—​first with the early (although incomplete) independence of Egypt (1922), then, for example, of Lebanon (1943), 15 I have in mind here Foucault’s definition of dispositif: an ‘ensemble consisting of discourses, institutions, architectural forms, regulatory decisions, laws, administrative measures, scientific statements, philosophical, moral and philanthropic propositions—​in short, the said as much as the unsaid’. ‘The Confession of the Flesh’ in Colin Gordon (ed), Power/​Knowledge Selected Interviews and Other Writings 1972–​1977 (Pantheon Books 1980) 194. 16 See especially Christoph Hermann, ‘Another “Lost Decade”? Crisis and Structural Adjustment in Europe and Latin America’ (2017) 14 Globalizations 519. 17 Bolívar Echeverría, ‘Potemkin Republics’ (2011) 70 New Left Review 53, 53–​55. 18 ibid.

The Developmental State  77 Sri Lanka (1948), Indonesia (1949), and Cambodia (1953), before the Gold Coast (now Ghana), in 1957, initiated the decolonization of sub-​Saharan Africa—​the states of Latin America were already familiar with ‘imagining’ themselves as such. They were, in other words, conversant in the business of ‘looking’ and ‘seeing’ like states.19 As the forbears of the decolonization movement and as the ‘pioneers’ of modern nationalism, to quote Anderson, the experience of the Latin American nation-​states prefigured that of the twentieth century’s post-​colonial states in at least three important ways.20 The first concerns the very adoption of the ‘nation-​ state’ as the form to be taken by collective political emancipation (later formalized as the right of peoples to self-​determination). After the Latin American wars of independence, the leaders who fought the Spanish and French empires—​like Toussaint L’Ouverture in Haiti, Simón Bolívar in Venezuela, Colombia, Ecuador, Perú, Panamá, and Bolivia, José de San Martín in Argentina, Chile, and Perú, and Miguel Hidalgo y Costilla and José María Morelos in México—​adopted the nation-​ state, and for the most part the republican state, as their template. The task was to bring together ‘state’ and ‘nation’ under a single institutional umbrella, giving actual shape to a form of political administration that rearticulated strands of political thinking brewed over the previous two centuries in Europe. ‘Individual liberty’ and ‘popular sovereignty’ were fused, on the one hand, with the ideas of sovereignty, equality, and non-​intervention that resulted from the mythical Peace of Westphalia (1648) and, on the other, with the advent of new property and political interests and the language of rights resulting from the American and French revolutions.21 The state in Latin America ‘took upon itself ’, as a result, ‘the construction of a nation, one nation where ethnicities were supposed to fuse into a unifying entity’.22 This combination of nation with state, and of these two with the aim of moving ahead, later became the dominant model when colonial territories in Africa, Asia and the Pacific began to ‘struggle to integrate different ethnicities, tribal rivalries, and religious differences into a modern unifying version of the nation and the state’.23 The task of creating new ‘national’ identities out of the dispersed realities left by centuries of colonial rule was no easy matter. The objective of the colonial 19 See especially Benedict Anderson, Imagined Communities: Reflections on the Origin and Spread of Nationalism (2nd ed, Verso 2006) (hereafter Anderson, Imagined Communities); James C Scott, Seeing Like a State: How Certain Schemes to Improve the Human Condition Have Failed (Yale University Press 1998). 20 Anderson, Imagined Communities (n 19), 47–​65. 21 See especially Benno Teschke, The Myth of 1648: Class, Geopolitics, and the Making of Modern International Relations (Verso 2003); Don H Doyle and Eric Van Young, ‘Independence and Nationalism in the Americas’ in John Breuilly, The Oxford Handbook of the History of Nationalism (OUP 2013). 22 Fernando López-​Alves, ‘Modernization Theory Revisited: Latin America, Europe, and the U.S. in the Nineteenth and Early Twentieth Century’ (2011) 38 Anuario Colombiano de Historia Social y de la Cultura 243, 267 (hereafter López-​Alvez, ‘Modernization Theory Revisited’). 23 ibid 248.

78  Luis Eslava states had, after all, been to organize ‘coercive, violent institutions and relations into power structures capable of implementing a grand design’—​one oriented towards economic exploitation and a permanent framework of hegemony.24 Thus, while the task of throwing off this exploitative past offered the new Latin American states some sense of internal cohesion and identity useful to the business of nation-​ building, they were building on an inherited national colonial identity at the cost of suppressing—​or of managing in particular ways, as we will see—​the rich ethnic plurality and multiple cosmologies existing within their territories. In many ways, for Indigenous and black communities and rural mestizo peasants, their countries’ independence represented a new chapter in an already long history of colonialism.25 In addition to all of these dramas, the colonial past of Latin American countries also meant that the new states surfaced with their natural resources already over-​ exploited and locked into a productive system geared towards satisfying metropolitan needs, which reduced them basically to primary commodity producers. The independence wars left them, as a result, with decimated populations, factional political and economic systems, and a high level of debt owed to the British Empire, which supported these wars to expand its sphere of influence into the region.26 This debt soon facilitated the extension of what we now know as ‘informal’ British imperialism.27 A second way in which the challenges faced by Latin American states prefigured the experience of the states that emerge during the mid-​twentieth century concerns the principle of uti possidetis iure: the juridical formula that colonial borders, including administrative borders, should remain the same after independence.28 Political and administrative stability, and a neat transfer of sovereignty and economic obligations from colonial to creole elites, gave support to this idea. A long century later, it was deployed again during the decolonization of the rest of the Global South. African states in particular applied it from the beginning of their processes of separation from European powers.29 The official formulation of uti possidetis in Africa came in 1964 with the Organization of African Unity’s

24 Steve Stern, Peru’s Indian Peoples and the Challenges of Spanish Conquest (University of Wisconsin Press 1982) 80, cited in Young, The Colonial (n 4) 57. 25 See, for example, Nicola Miller, ‘Latin America: State-​Building and Nationalism’ in John Breuilly, The Oxford Handbook of the History of Nationalism (OUP 2013). See generally, on the question of ethnicity, Mohammad Shahabuddin, Ethnicity and International Law:  Histories, Politics and Practices (CUP 2016). 26 Luis Bértola and José Antonio Ocampo, The Economic Development of Latin America since Independence (OUP 2013) 48–​80 (hereafter Bértola and Ocampo, Economic Development). 27 John Gallagher and Ronald Robinson, ‘The Imperialism of Free Trade’ (1953) VI Economic History Review 1. 28 See especially Guiseppe Nesi, ‘Uti Possedetis Doctrine’ in Rüdiger Wolfrum (ed), The Max Planck Encyclopedia of Public International Law (OUP 2008). 29 Jörg Fisch, The Right to Self-​Determination of Peoples: The Domestication of an Illusion (CUP 2015) 206 (hereafter Fisch, Self-​Determination).

The Developmental State  79 Resolution 16(I). According to Article 2, ‘all Member States pledge themselves to respect the borders existing on their achievement of national independence’. The effects of the global extrapolation of this aspect of the Latin American experience—​ today considered part of customary international law—​ are still widely felt.30 It ensured that political unities would be created out of violent exercises of partition and aggregation that did not correspond to social expectations or cultural, economic, or environmental realities. Colonial borders came to be regarded ‘as given and virtually unalterable’, silently ridding the emerging ‘right of self-​determination’ of its association with substantive forms of popular will, and thus foreclosing the possibility of different territorial futures.31 Once created, nation-​states could not be reordered without excessive costs in terms of civil war, debt-​acquisition, or accession to often ideologically closed international institutions. South Sudan, formed in 2011, is only the most recent example. Thirdly, in addition to the nation-​state form and uti possidetis, the Latin American region had an important role in constructing the international order that eventually set the conditions for decolonizing the rest of the South. From the late nineteenth century legal internationalist tradition generated by some of their key practitioners (via the Calvo (1868) and Drago Doctrines (1902), Alejandro Alvarez’s Americanismo, etc.) to their founding membership of the League of Nations and the United Nations (UN), the Latin American states were keen participants in the creation of the modern international legal order.32 In practice still marginal, yet procedurally equal to their European counterparts, they advanced a view of international law based on equality, non-​intervention, and self-​determination in the form of state independence. By the 1930s this had opened up the possibility for Latin American governments to articulate their modernizing ambitions in terms of ‘economic development’.33 As Obregón has argued, underlying this new relationship between Latin America and international law was a ‘creole consciousness’, which assumed that these societies were ‘part of the metropolitan center (as descendants of Europeans) while at the same time challenging the center with notions of their own regional uniqueness (as natives of America)’.34 This operated as an explicit instrument of nation and region building predicated on a productive differentiation that reversed 30 Makau Mutua, ‘Why Redraw the Map of Africa:  A Moral and Legal Inquiry’ (1994–​1995) 16 Michigan Journal of International Law 1113. 31 Fisch, Self-​Determination (n 29), 207. 32 Consider also the Estrada Doctrine (1930) and the Montevideo Convention (1933). See especially Arnulf Becker Lorca, Mestizo International Law: A Global Intellectual History 1842–​1933 (CUP 2015) 141–​352. 33 See especially Eric Helleiner, ‘Southern Pioneers of International Development’ (2014) 20 Global Governance 375. On how early proposals for an Inter-​American Development Bank came to inform the US proposal for creating the World Bank, see also Bértola and Ocampo, Economic Development (n 26), 154–​55. 34 Liliana Obregón, ‘Between Civilisation and Barbarism: Creole Interventions in International Law’ (2006) 27 Third World Quarterly 815.

80  Luis Eslava the differentiation to which European empires had subjected these societies, allowing creole elites to claim formal equality while pushing for an international order responsive to regional customs and needs.35 Pressure from the United States (US), during the birth of the Monroe Doctrine (1817–​1825) and then the Roosevelt era of ‘big stick’ diplomacy (1901–​1909), only heightened that demand.36 This take on international law—​based on Latin America’s distinctive qualities vis-​à-​vis Europe—​would have important repercussions for the rest of the Global South in the formation of specific regional organizations and international legal norms. The emphasis on regional differentiation was, however, part of a local elite project, which used the formal equality conceded to Latin American states as an opportunity to coordinate what creole leaders assumed to be a necessary transformation of their countries and populations. Believing that their region formed part of Europe’s ‘universal history’ yet lagged behind due to its weak economies, uneducated populations, and ethnic divisions, they argued for the opportunity to use their states—​equipped formally with European norms and institutions—​ as engines of political, economic, and social change. It was at this point, both in Latin America and elsewhere in the post-​colonial world, that the real ‘imagining’ of nation and state occurred: in fashioning modern nations and cultures out of non-​Western realities.37 In this context, elements of Indigenous cultures, which had been fractured by the colonial project, were resurrected to advance new creole national historiographies. For example, the Aztec Empire, in the case of Mexico, and the Inca Empire, in the case of Perú, were mobilized as evidence of glorious ‘autochthonous’ pasts.38 Homogenizing narratives and new social cartographies also had to be developed; a largely illiterate peasant population educated; agrarian economies ‘modernized’; an industrial and urban transition executed; and the region’s untapped resources had to be marshalled to benefit its nations.39 A clear call for modernization thus came to accompany Latin American nation-​ states’ entry into the international order. Leaders such as Getúlio Vargas in Brazil, Arturo Alessandri in Chile, Alfonso Lopez Pumarejo in Colombia, Augusto Leguía in Perú, and José Maria Velasco Ibarra in Ecuador personified this moment.

35 See, for example, Sara Castro-​Klarén, ‘The Nation in Ruins: Archeology and the Rise of the Nation’ in Sara Castro-​Klarén and John Charles (eds), Beyond Imagined Communities: Reading and Writing the Nation in Nineteenth-​Century Latin American (Johns Hopkins University Press 2003) (hereafter Castro-​ Klarén, ‘The Nation in Ruins’). 36 See, for example, Stewart Brewer, Borders and Bridges: A History of U.S.-​Latin American Relations (Praeger Security International 2006). 37 Partha Chatterjee, ‘Whose Imagined Community?’ in Empire and Nation (Columbia University Press 2010) 23–​36. 38 See, for example, Castro-​Klarén, ‘The Nation in Ruins’ (n 35). 39 See, for example, Barbara Weinstein, The Color of Modernity: São Paulo and the Making of Race and Nation in Brazil (Duke University Press 2015); Nancy Appelbaum, Mapping the Country of Regions: The Chorographic Commission of Nineteenth-​Century Colombia (University of North Carolina Press 2016); Arturo Almandoz, Modernization, Urbanization and Development in Latin America, 1900s–​2000s (Routledge 2014).

The Developmental State  81 Underpinning their projects was not a horizontal ethos of community, but rather a hierarchical conception both of ‘national’ social groups and of their place within the international order. Despite their shared objective of a brighter future for their nations and the region, these ruling elites tended to blame their ‘rural’ economies, ‘backward’ classes, ‘broken’ geographies, and ‘weak’ institutions when their plans did not deliver, and to justify successive new rounds of modernizing policies on this basis.40 Facing widespread colonial resistance in the wake of two world wars and a new non-​traditional imperial power in the form of the US, Europe eventually came to accept a new model of global governance centred on the nation-​state, as prefigured in Latin America.41 European colonial powers had slowly begun to reread claims for independence not as a threat but as an opportunity for local elites to discipline their own populations and economies. The idea of indirect rule, a component of British imperial administration since at least the nineteenth century, became the model of this new form of control. Beginning with Article 22 of the Covenant of the League of Nations (1919), indirect rule in the form of the Mandates Commission aimed at governing and educating colonial subjects in the task of self-​rule through their own authorities and laws, and according to their own ‘stage of development’. By the mid-​1930s, it had been adopted, in diverse ways, by the late-​imperial administrations of France, Belgium, Portugal, Italy and Japan, among others.42 After the Second World War, indirect rule resurfaced in the UN’s Trusteeship Council, which was charged with supervising the administration of ‘trust territories’ (previously ‘mandates’). The Council and trustee powers were commanded, by Chapter XIII of the UN Charter, to ensure that colonial governments took adequate steps ‘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’.43 Trustees were also obliged ‘to promote constructive measures of development . . . with a view to the practical achievement of the social, economic, and scientific purposes set forth’ by the terms of the Trusteeship System.44 Achieving self-​government began to be imagined, in this context, as a neat incremental transition, to be executed with the help, and according to the interests, of colonial powers and the international community as a whole. The result was the production of several new states until November 1994, when the Trusteeship 40 López-​Alves, ‘Modernization Theory Revisited’ (n 22) 269. 41 Roger Louis and Ronald Robinson, ‘The Imperialism of Decolonization’ (1994) 22 The Journal of Imperial and Commonwealth History 462, 508 (hereafter Louis and Robinson, ‘The Imperialism of Decolonization’). 42 See especially Luis Eslava, ‘The Moving Location of Empire: Indirect Rule, International Law, and the Bantu Educational Kinema Experiment’ (2018) 31 Leiden Journal of International Law 539. 43 UN Charter art 73.b. 44 ibid art 73.d.

82  Luis Eslava Council suspended its operations a month after the independence of the last remaining trust territory, Palau. However, this new indirect modality of global governance and decolonization did not always operate in the closely-​supervised and orderly fashion imagined by Chapter XIII of the Charter. On the contrary, the majority of the new states that emerged in the 1950s and 1960s did so through the actions of anti-​colonial movements, with the acquiescence of imperial powers in some cases (a process that Louis and Robinson have called ‘the imperialism of decolonization’).45 The energies of this moment were crystallized in the Declaration on the Granting of Independence to Colonial Countries and Peoples, adopted by the General Assembly Resolution 1514 (XV) of 14 December 1960. The combined outcome of the Trusteeship System and decolonization was the multiplication—​or ‘reproduction’ as Parfitt has called it—​of a particular kind of state, one that had become dominant long before in Latin America.46 This was a territorially bounded state, committed to modernization and embedded in, if no longer directly ruled by, the international order. A testament to the success of this new modality of global governance—​never fully hegemonic, but never fully emancipatory either—​was the sharp increase in new state members accepted to the UN. Having started with fifty-​one members in 1945, by 1980 it had added over 100 more to its ranks.

IV.  States as developmental states The turn to less direct forms of international administration, together with the consolidation of the state as the universal endpoint of political emancipation, set up the coordinates for decolonization in Africa, Asia, and the Pacific. This process was accompanied, as suggested above, by a shift in the central locus of global power from Europe to the US, signalling a move from old imperial logics to the more ‘internationalized’ post-​war legal order. With the Global South increasingly able to dominate the debate thanks to the space opened up for Southern voices through the UN General Assembly (UNGA), the struggle to end colonialism turned rapidly into a struggle over the practical meanings of statehood and development. Under the Mandates and Trusteeship systems, development had already been presented as an apolitical and technical instrument for ending colonialism. After 1945, the US took the lead in endorsing it as the new organizing discourse for a post-​imperial world. In his inaugural speech of January 1949, President Harry Truman famously announced that ‘a program of development’ had to replace what he portrayed as older practices of imperialist exploitation, which had ‘no place’ in 45 Louis and Robinson, ‘The Imperialism of Decolonization’ (n 41). 46 Rose Parfitt, The Process of International Legal Reproduction: Inequality, Historiography, Resistance (CUP 2019).

The Developmental State  83 US plans for the world.47 The challenge ahead, for Truman, was clear: ‘More than half the people of the world are living in conditions approaching misery. [ . . . ] Their poverty is a handicap and a threat both to them and to more prosperous areas.’ What was required, therefore, was ‘a bold new program for making the benefits of [the West’s] scientific advances and industrial progress available for the improvement and growth of underdeveloped areas’. This had to be ‘a cooperative enterprise in which all nations work together through the United Nations and its specialized agencies’. All countries, including the US, would ‘greatly benefit’, at the same time, ‘from a constructive program for the better use of the world’s human and natural resources’. Ironically, as this suggests, the main difference between Truman’s development programme and the nineteenth-​century ‘civilizing mission’ or the early twentieth-​century ‘dual mandate’ was that access to Southern resources would now be formally consented to by ‘sovereign’ nation-​states as a necessary precondition to their ‘growth’. Development was presented, in this way, as a project organized around the economic growth of ‘all’ nations and ‘a wider and more vigorous application of modern scientific and technical knowledge’. This keen attention to technology followed from Truman’s commitment to an international order focused on the sovereignty and (formal) independence of poor nations and of those ‘new nations’ that were now being formed, as he put it, ‘in lands now advancing toward self-​government’. Development was thus not necessarily envisaged as direct economic support for those identified as living in ‘underdeveloped areas’. According to Truman, the US had no funds to share with them, even though he drew attention, in the same speech, to the significant financial resources it was deploying via the Marshall Plan ‘to invigorate and strengthen democracy in Europe, so that the free people of that continent [could] resume their rightful place in the forefront of civilization’. What could (and should) be offered to the South, Truman argued, was technology—​from fertilizers to expert advice. However, this solution carried with it a very specific understanding of Third World problems and how to solve them. Infamously, it also generated astronomical levels of international debt. The old project of modernity thus tightened its grip in the South again through ‘development’, an idea reliant on a specific logic of production and accumulation, and on the view that Southern states were responsible for their economic and social ‘underdevelopment’. This understanding was associated, above all, with the US approach, which soon came to dominate the burgeoning institutional apparatus of

47 Harry S Truman, Inaugural Address (20 January 1949). See on an earlier endorsement of development by the UN: Economic Development of Underdeveloped Countries A/​Res/​198(III), (4 December 1948). For a closer analysis of Truman’s speech and its impact on international law see, Jennifer L Beard, The Political Economy of Desire: Law, International Law, Development, and the Nation State (Routledge-​ Cavendish 2007); Sundhya Pahuja, Decolonizing International Law: Development, Economic Growth and the Politics of Universality (CUP 2011) (hereafter Pahuja, Decolonizing International Law); Luis Eslava, Local Space, Global Life: The Everyday Operation of International Law and Development (CUP 2015).

84  Luis Eslava international development, notwithstanding the many other developmental theories on offer during the Cold War period.48 One of its key articulations came from WW Rostow. An MIT professor of economic history and an influential figure in US foreign policy from the mid-​1940s, Rostow presented the most modular and closely applied version of US capitalist development in his 1960 book The Stages of Economic Growth: A Non-​Communist Manifesto.49 The objective of development for Rostow was to transform ‘traditional societies’ into ‘high mass consumption’ states through specific stages of specialization and industrialization. Rostow’s ‘modernization theory’ was enormously influential on US overseas development and foreign policy under the Eisenhower, Kennedy, and Johnson administrations. He was involved, for example, in the drafting of the Marshall Plan, in the ‘development’ aspects of the Vietnam war, and in other plans to expand US interests in Asia during this period. The World Bank and then the International Monetary Fund drew equally on Rostow’s prescriptions after the mid-​1950s as they turned their attention to the programmatic ‘development’ of Third World countries.50 In this process, many technologies that would later define a new age of global governance were marshalled in support of Rostow’s ideas. One example is Gross Domestic Product (GDP), conceptualized in its modern form by Simon Kuznets in a 1934 US Congress report, which the Bretton Woods institutions eventually began to use to measure ‘levels’ of economic growth and developmental capacity.51 One result of these post-​war developments was a revised understanding of supposedly ‘underdeveloped’ states, as ‘developmental’ states—​as states fully dedicated to transforming their populations and economic systems according to the dictates of Western ‘progress’. This process was aided by the elites of many of the new Southern states, who also came to view their countries and co-​nationals through the lens of development, in an uncanny echo of their predecessors’ actions in Latin America a century before.52 The association between state building and development was reinforced, in turn, by both the Keynesian interventionist energies ascendant on the Western side of the Cold War and the USSR’s planned economic model. The combined result of this concatenation of events and projects was a shared set of ideas oriented around state-​centred development and state legitimacy 48 Richard Peet and Elaine Hartwick, Theories of Development: Contentions, Arguments, Alternatives (3rd ed, Guilford Press 2015) 119–​59 (hereafter Peet and Hartwick, Theories of Development); Gilbert Rist, The History of Development: From Western Origins to Global Faith (Zed Books 2004) 25–​46 (hereafter Rist, The History of Development). 49 Walt Whitman Rostow, The Stages of Economic Growth: A Non-​Communist Manifesto (CUP 1960). On Rostow’s influence on US foreign policy see, Kimber Charles Pearce, Rostow, Kennedy, and the Rhetoric of Foreign Aid (Michigan State University Press 2001). 50 See, for example, Michele Alacevich, The Political Economy of the World Bank: The Early Years (Stanford University Press 2009). 51 Ehsan Masood, The Great Invention:  The Story of GDP and the Making and Unmaking of the Modern World (Pegasus Books 2016). 52 Pahuja, Decolonizing International Law (n 47), 44–​94. See also Alden Young, Transforming Sudan: Decolonization, Economic Development and State Formation (CUP 2017).

The Developmental State  85

Fig. 3.3.  Trucks moving slowly along a mountain road outside Bogotá. In 1961, the World Bank and the International Development Association provided $39 million to Colombia for a highway improvement program designed to solve the condition of its roads, as captured in this photograph. Photo: Austin Motor Co. Ltd. Folder ID 1719780, World Bank Group Archives. License: CC BY NC-​SA 4.0

based on economic growth and industrialization.53 According to Chatterjee, development emerged at this point as a powerful frame within which post-​colonial rule would appear legitimate, both internally and externally, in the face of broadly felt material needs in the Global South (see Figure 3.3).54 It was at this moment that the UN’s Economic Commission for Latin America and the Caribbean (ECLAC), though established in 1948, took centre-​stage, offering a particular South-​oriented articulation of development. Although it remained close to Truman and Rostow’s version, ECLAC’s developmentalism was geared towards the formation of national capital, or ‘national capitalism’, understood as the essential first step towards satisfying local needs and future international integration. Under Raúl Prebisch from 1950 to 1963, ECLAC outlined 53 On the shift of state legitimacy from war and expansion to economic growth, see Peter Evans, ‘Development and the State’ in Neil Smelser and Paul Baltes (eds), International Encyclopedia of the Social & Behavioral Sciences (Elsevier 2001) 3557–​60. 54 Partha Chatterjee, ‘Development and Planning’ in Empire and Nation (Columbia University Press 2010) 241–​66.

86  Luis Eslava a series of policies based on a historical structuralist approach.55 Focusing explicitly on colonialism’s institutional and economic legacy, and drawing on the work of other Southern and South-​oriented economists (Hans Singer, Celso Furtado, Anibal Pinto, and Ifigenia Martínez, for example), it proposed ISI as the most effective way to secure economic development in Latin America. Instead of advocating economic specialization and concentrating on trade and export, ISI strategies (ISIs) aimed at building internal state capacity by backing infant industries via tariffs, import quotas, exchange-​rate controls, preferential licensing for capital goods imports, and subsidized loans. Such policies were widely applied in Latin America from the mid-​1950s until the early 1980s. Their popularity was based on the room they gave governments and local elites—​the ‘national’ bourgeoisie—​to consolidate their national projects and economic base without challenging traditional forms of capital accumulation or neglecting a commitment to ‘modernization’ and future parity with centre-​countries. ISIs were, consequently, rarely attached to fully centrally planned measures and, instead, tended to promote mixed economies. ISIs’ implementation would not have been possible were it not for the leverage obtained by Latin American states on the heated terrain of the Cold War. A key illustration concerns the Alliance for Progress, Kennedy’s plan for the economic development of Latin America, which offered international aid and some level of developmental sovereignty to US allies. Announced at the Inter-​American Conference at Punta del Este in 1961, the Alliance required that recipient countries commit to drafting ‘comprehensive and well-​conceived’ national programmes of development in exchange for US resources. For several recipients, ECLAC helped draft these programmes. It was through this that ISIs came to be institutionalized as part of a general mainstreaming of the idea of development, involving the articulation of virtually all national variables under a single developmental logic. Colombia’s proper first national development plan, for example, was drafted at the behest of the Alliance in 1961, by the newly created National Department of Planning and with ECLAC’s support. The Plan Decenal de Desarrollo Económico y Social—​Plan Decenal was applied from 1962 to 1971. As Colombia’s then-​President Alberto Lleras Camargo (1958–​1962) put it, the time had arrived to mobilize ‘the entire nation, its government, its industry, its agriculture, its rural and urban workers, its small communities, its bankers, its traders, its universities and schools’ in the service of development.56 It would be no exaggeration to say that ISIs transformed Latin America’s political economic cartography. Indeed, they enabled 55 Raúl Prebish, ‘The Economic Development of Latin America and its Principal Problems’ (27 April 1950) UN Doc E/​CN.12/​89/​Rev.1 (United Nations Economic and Social Council). 56 Alberto Lleras Camargo, ‘Presentación’ in Plan de Desarrollo Económico y Social (Departamento Nacional de Planeación Colombia 1961) [Translation by the author]. Colombia had been the object of an earlier planning exercise by the World Bank’s Currier Mission (1949–​1953)—​the Bank’s first significant development operation in the South. See, Eslava, Local Space, Global Life; Arturo Escobar, Encountering Development: The Making and Unmaking of the Third World (2nd ed, Princeton University Press 2011).

The Developmental State  87 almost the entire region, especially larger (Brazil and Mexico) and middle-​sized states (for example, Argentina, Chile, Colombia, Perú, and Venezuela), to take advantage of the nation-​state as a sovereign entity and redistributive unit. According to Bértola and Ocampo, the region experienced during this period ‘the fastest economic and productivity growth rates in history’, not to mention ‘a population explosion and rapid urbanization’.57 Newly decolonized nations in Asia and Africa were quick to follow suit,58 as the preoccupations of the 1955 Bandung Conference, the first large-​scale meeting of independent Asian and African states, made clear.59 Though the attendees and organizers were states aligned on both sides of the Cold War, all were committed to the dual project of sovereignty and nation-​building, the latter understood essentially as coterminous with economic development. The conference’s Final Communiqué called attention, for example, to ‘the urgency of promoting economic development in the Asian-​African region’.60 Just like ECLAC in Latin America, Bandung’s participants anchored their search for development in ‘mutual interest and respect for national sovereignty’—​involving, among other things, the diversification of ‘export trade by processing . . . raw material[s]‌, wherever economically feasible, before export’.61 This commitment to state-​led development reached new heights in General Assembly Resolution 1514 (1960), decolonization’s legal apotheosis. According to the Resolution, ‘inadequacy of political, economic, social or educational preparedness should never serve as a pretext for delaying independence’.62 It held that ‘the continued existence of colonialism prevents the development of international economic co-​operation, impedes the social, cultural and economic development of dependent peoples and militates against the United Nations ideal of universal peace’. Self-​determination was repositioned by the UNGA—​now filled with newly independent states and their allies—​not only as a moral necessity and legal right, but also as the more effective route towards ‘development’.63 This association between development and the state was further underscored in the UNGA’s 1962 Resolution on Permanent Sovereignty over Natural Resources, which declared: ‘The right of peoples and nations to permanent sovereignty over their natural wealth and resources must be exercised in the interest of their national development and of the

57 Bértola and Ocampo, Economic Development (n 26) 138. 58 See, for example, Rajesh Chandra, Industrialization and Development in the Third World (Routledge 1992) 17–​29. 59 See especially, Luis Eslava, Michael Fakhri and Vasuki Nesiah (eds), Bandung Global History and International Law: Critical Pasts and Pending Futures (CUP 2017). 60 Final Communiqué, Asian-​African Conference, Bandung (24 April 1955). 61 ibid. 62 GA Res 1514 (XV) (14 December 1960). 63 On an earlier expression of this connection between self-​determination and development, see ‘Non-​Self-​Governing Peoples’ GA Res 9 (I) (9 February 1946).

88  Luis Eslava well-​being of the people of the State concerned.’64 Against this background, the UN launched the first ‘Development Decade’ in 1961.65 As the 1960s progressed, however, it became clear that state-​led development, in the context of the skewed international trade system—​a legacy both of centuries of colonialism and of the incomplete institutional arrangements set up in the wake of the Second World War—​could not lift Third World living standards alone. The main features of the post-​war international trade order had, after all, been decided without considering the needs of the Global South. The General Agreement on Tariffs and Trade (GATT), the trade framework intended for administration by the future International Trade Organization (ITO), had been drafted in Geneva, during the lead-​up to the UN Conference on Trade and Employment in Havana in 1948—​the key post-​war conference at which questions of trade, labour, and economic relations were to be discussed. During this initial drafting process in Geneva, Southern states had demanded the freedom to use tariffs to promote domestic industrialization but their requests were postponed, and linked to the ITO’s approval later on, in Havana. In Geneva, the US, the United Kingdom, Canada, Australia, France, Belgium, the Netherlands, and Luxembourg were prepared to approve only a much narrower, and as it turned out momentous, agreement: the Protocol of Provisional Application of GATT, which expressed only certain basic guarantees, together with a series of measures protecting the interests of the major trading powers.66 In Cuba, a year later, the South asked, as planned, for a preferential treatment to support their development, but the end result was again far from satisfactory. The Havana Conference did indeed decide to establish the ITO, which had some progressive elements to it, but it never came into existence after the US Congress failed to approve it. This left the GATT as a stand-​alone framework for regulating international trade.67 From the Havana meeting in 1948, at which Southern hopes were elevated only to be dashed, concerns about the international trade order continued to brew, gathering pace as more new states confronted its internal biases. By the late 1950s, the Third World, as it was now known, was eager to engage in further initiatives for Southern trade cooperation to counter those biases at a regional level. In the wake of Bandung, for example, Asian and African countries established the Afro-​Asian Organization for Economic Cooperation (AFROSEC) in 1958, while in 1960, ECLAC helped create the Latin American Free Trade Association, replicated by the African Charter in Casablanca the same year. The Organization of African Unity (today the African Union) and the African Bank for Economic Development were 64 GA Res 1803 (XVII) (14 December 1962). 65 GA Res 1710 (XVI) (19 December 1961). 66 Douglas Irwin, Petros Mavroidis and Alan Sykes, The Genesis of the GATT (CUP 2009) 5–​97 (hereafter Irwin, Mavroidis, and Sykes, Genesis). 67 Vijay Prashad, The Darker Nations: A People’s History of the Third World (The New Press 2007) 68–​71 (hereafter Prashad, The Darker Nations).

The Developmental State  89 formed in 1963, and Francophone Africa established the Afro-​Malagasy Union in 1964. As part of this trajectory of attempts to reformulate the international trade and economic order, but now with growing concerns about the increasing presence of multinational corporations in the South, the Third World came together in 1964 to form a new institution, the United Nations Conference on Trade and Development (UNCTAD). In various renegotiations of the GATT contract since 1947, developing countries had introduced some rules better suited to their preoccupations. However, they now felt that ‘a more drastic redraft of the GATT was warranted’.68 With Prebisch as secretary-​general (1964–​1969), UNCTAD’s work brought together all the energies and experiences of the South, from ECLAC to Bandung to the UNGA, to form a single blueprint for collective existence, operational from Latin America to Africa, Asia and the Pacific. This was the ‘developmental state’ again, but now more clearly thought from, and in the service of, the South. On this, the Joint Declaration of the 77 ‘developing countries’ supporting UNCTAD as a permanent intergovernmental body is clear: the future ‘G77’ demanded not only ‘constructive international action’ to support their development, but also a new international framework ‘wholly consistent with the needs of accelerated development’ in the South.69 Crucially, a particular type of nationalism went hand in hand with this emerging state developmentalism. Prashad defines it as an ‘internationalist nationalism’ aimed at using the colonial past of Third World states as the launch pad for a new international order, from Colombia to Egypt to Bangladesh.70 By the mid-​1970s, this project had solidified into the Declaration for the Establishment of a New International Economic Order (NIEO), adopted by the UNGA on 1 May 1974, and, later that year, the Charter of Economic Rights and Duties of States.71 (See Figures 3.4, 3.5, and 3.6.) The NIEO and the Charter clearly express a desire to reconstitute the terms and conditions of international life. More specifically, their language sought to extend the ideas of sovereign equality and cooperation that had been under discussion in the South for over a century. They showed, in this manner, that a more organized and outspoken South was ready to challenge the biases of international structures more directly, and to anchor the source of their problems in the global maldistribution of resources and the consolidation of corporate power. The NIEO Declaration insisted that ‘alien and colonial domination, foreign occupation, racial discrimination, apartheid and neo-​colonialism in all its forms continues to be among the greatest obstacles to the full emancipation and progress of the developing



68

Irwin, Mavroidis, and Sykes, Genesis (n 66), 124. Joint Declaration of the Seventy-​Seven Countries (Geneva, 15 June 1964). 70 Prashad, The Darker Nations (n 67), 12. 71 GA Res. 3201 (S-​6) (1 May 1974); GA Res. 3281 (XXIX) (12 December 1974). 69

Fig. 3.4.  Students receiving mechanical training at a school in Barranquilla, Colombia in 1971. The school was set up as part of a World Bank project to promote technical education in Colombia. Photo: James Pickerell. Folder ID 1719645, World Bank Group Archives. License: CC BY NC-​SA 4.0

Fig. 3.5.  Cairo train station in 1975. In 1971, the International Development Association approved a loan of $30 million to Egypt for a railway project. Photo: Ray Witlin. Folder ID 1721056, World Bank Group Archives. License: CC BY NC-​SA 4.0

The Developmental State  91

Fig. 3.6.  With credit from the Swedish government and the International Development Association and a Canadian grant, this project, approved in 1972, aimed to increase production and employment in Bangladesh by constructing irrigation systems and supporting agriculture. Photo: Tomas Sennett, 1974. Folder ID 1716085, World Bank Group Archives. License: CC BY NC-​SA 4.0

countries’.72 Not only was it the case that ‘the benefits of technological progress are not shared equitably by all members of the international community’, but developing countries, ‘which constitute 70% of the world’s population, account for only 30% of the world’s income’. Its call for channels securing an ‘adequate flow of real resources’ to developing states was particularly important given that these states had accumulated, by this point, large international debts to support their ‘national’ industrialization processes, as well as to purchase foreign consumer goods where colonial economies had been systematically oriented towards the mono-​ production of commodities. Yet by the mid-​1970s, too, it was becoming apparent that embracing the development project and reshaping it on Southern states’ terms was achieving little substantive result. This downbeat assessment marked the Second Development Decade.73 After years of trying to create more emancipatory paths to development than those articulated by Rostow and Truman, it was clear that Southern states and their citizens were simply being interpellated as subjects worthy of



72 73

GA Res. 3201 (S-​6) (1 May 1974). GA Res. 2626 (XXV) (19 November 1970).

92  Luis Eslava a differentiated process of modernization and industrialization—​a process for which they were held responsible, yet were not able to control. ISIs had not challenged this dynamic sufficiently and, instead, had set countries off on an even more protracted trajectory of dependency. In Latin America, for example, Grosfoguel has described how from the 1950s countries had not only started to import capital goods to ignite their ‘endogenous development’, but had also witnessed the emergence of new alliances between their ‘national’ bourgeoisies and multinational corporations.74 Apart from an inconsistent handful of Asian success stories, the results of almost two decades of ISI-​led development included capture of the state by native and foreign elites, soaring balance of payment and trade deficits, more marginalized populations, mounting inflation, and unmanageable debt levels. Coinciding, as it did, with the first consistent wave of dictatorships across the South, these failures generated a devastating critique of the very legitimacy, let alone the potential, of the developmental state. This critique also gave the claims of the 1974 NIEO Declaration a unique urgency. At this point, the Latin American dependentistas and their fellow travellers come into the picture.

V.  Dependency after independence History continued to be unkind to the Latin American states, in spite of their position at the vanguard of the decolonization movement, and notwithstanding their more recent efforts to enact an alternative modality of development through ECLAC. After a century and a half of republican life, followed by a decade and a half of developmental interventions, the region still suffered from what Frank in 1966 called ‘the development of underdevelopment’.75 According to Frank, the ‘metropolis-​satellite relations’ which characterized, first the imperial, and then the international sphere were no longer limited to the interstate level, but had come to ‘penetrate and structure the very economic, political, and social life of the Latin American colonies and countries’.76 Each satellite—​each city and rural town—​ had been constructed ‘as an instrument to suck capital or economic surplus out of its own satellites and to channel part of this surplus to the world metropolis of which all are satellites’.77 Thus every national and local metropolis in Latin America

74 Ramón Grosfoguel, ‘Developmentalism, Modernity, and Dependency Theory in Latin America’ in Mabel Moraña et al. (eds), Coloniality at Large: Latin America and the Postcolonial Debate (Duke University Press 2008) 305 (hereafter Grosfoguel, ‘Developmentalism). 75 Andre Gunder Frank, ‘The Development of Underdevelopment’ (1966) 18 Monthly Review 17, republished in Robert Rhodes, Imperialism and Underdevelopment:  A Reader (Monthly Review Press 1970). 76 ibid 7. 77 ibid.

The Developmental State  93 functioned as a conduit through which to ‘impose and maintain’ a ‘monopolistic structure and exploitive relationship . . . as long as it serves the interests of the metropoles’. For Frank, these were ‘the principal and still surviving structural characteristics which were implanted in Latin America by the [Spanish and Portuguese] Conquest’.78 At the core of this analysis resided a strong critique of ECLAC’s assessment of the economic situation of post-​war Latin America. In contrast to its assumption that nations were still trapped in feudal structures and must therefore be brought into the realm of capitalist relations via a state-​supported ‘national’ bourgeoisie, Frank argued that Latin America had been incorporated into the world capitalist system since colonial times. Thus, if the region ‘was already capitalist and as capitalism was the cause of its underdevelopment, it was capitalism and not feudalism that needed to be abolished’.79 Frank’s diagnosis and assessment of the road ahead evolved alongside the work of several other intellectuals which came to be identified under the term ‘dependency theory’. The proposals of the dependentistas—​rooted in Latin American economics and American Marxism, and in some cases linked to ECLAC—​varied in degrees of radicality. What they did share, however, was an unease with the standard set of assumptions concerning the nature of economic development, and especially with functionalist structural readings of the reasons for, and solutions to, ‘underdevelopment’. Henrique Cardoso, Enzo Faletto, Anibal Pinto, Anibal Quijano, and Theotonio dos Santos, with Frank and many others, all advanced the idea that Latin America and its productive system was ‘dependent’ on the motions of global capital, and its underdevelopment was therefore a function of the development of the North. Development, or lack thereof, was not then the concern of one state, as mainstream development economics insisted; it was a world relational-​historical process. Similarly, they argued that traditional understandings of ‘modernization’, like Rostow’s or narrow readings of ISIs, further entrenched dependency. For example, policies of import substitution, thanks to their reliance on capitalist interests, ended up subsidizing the profits jointly accumulated by a politically connected local elite and an international bourgeoisie, with local consumers paying vastly higher prices for ‘subsidized’ commodities.80 According to Grosfoguel, the dependentistas were also clear that ‘[f]‌oreign penetration, diffusion, and acculturation of modern values, techniques and ideas from the centers to the periphery do not necessarily produce development’.81 In most cases, they argued, these ideas contributed, instead, to reducing policy, political, and economic

78 ibid. 79 Cristóbal Kay, ‘Andre Gunder Frank: ‘Unity in Diversity’ from the Development of Underdevelopment to the World System’ (2011) 16 New Political Economy 523, 529. 80 Peet and Hartwick, Theories of Development (n 48), 190. 81 Grosfoguel, ‘Developmentalism’ (n 75), 319.

94  Luis Eslava options, exacerbating the subordination of underdeveloped countries to states of the Global North.82 The dependentistas, unlike previous development economists, were thus sceptical about the possibility of Third World countries breaking away from the persistently biased international order without a profound reconsideration of the state’s role in the world economy. As early as 1956, for example, uninhibited by his close affiliation with ECLAC (1949–​1958) and later directorships of the Brazilian Development Bank (1959) and the Ministry of Planning in Brazil (1961–​1964), Celso Furtado had called attention to Latin American countries’ economic dependency. By 1967, Furtado was insisting on the detrimental nature of the relationship between the success of developed nations and the conditions of the underdeveloped Third World, basing his argument on a historical structural analysis far more radical than ECLAC’s official position.83 Similarly, Henrique Cardoso, later president of Brazil (1995–​2003), argued in 1972 that countries in the South were trapped in a kind of ‘associated-​dependent development’, which must be managed and counteracted through social action.84 The dependentistas integrated classical Marxists readings of imperialism by Rosa Luxemburg and Vladimir Lenin into their analyses, together with more recent Marxist thinking on monopoly capitalism and its effects in the South from economists like Paul Baran and Paul Sweezy.85 They also made use of earlier internal Latin American debates about the nature and origins of the region’s relationship with the capitalist system. In their insistence that it had long been embroiled in the capitalist system, they advanced the work of Peruvian journalist, activist, and political philosopher José Carlos Mariátegui, for example, who argued as early as the mid-​1920s that colonization had destroyed an existing indigenous socialist economy and replaced it with endless capitalist accumulation, first controlled by creole colonial agents and later by republican and foreign elites. For Mariátegui, a proper critique of Latin America’s economic situation required a radical recuperation of pre-​existing socialist forms of production.86 For dependency theorists, accordingly, Euro-​American development ‘was based on external destruction rather than international innovation—​brutal conquest, colonial control, stripping 82 ibid. 83 See Celso Furtado, Uma economia dependente (Ministério da Educação e Cultura, 1956); Celso Furtado, Development and Underdevelopment:  A Structural View of the Problems of Developed and Underdeveloped Countries (University of California Press 1967). 84 Henrique Cardoso, ‘Dependency and Development in Latin America’ (1972) 74 New Left Review 83. 85 Vladimir Lenin, Imperialism, the Highest Stage of Capitalism: A Popular Outline (first published 1917, International Publishers 1939); Rosa Luxemburg, The Accumulation of Capital: A Contribution to an Economic Explanation of Imperialism (first published 1913, Routledge 2003); Paul Baran and Paul Sweezy, Monopoly Capital:  An Essay on the American Economic and Social Order (Monthly Review Press 1966). 86 José Carlos Mariátegui, 7 Ensayos de Interpretación de la Realidad Peruana (3rd ed, Biblioteca Ayacucho 2007) 7–​25.

The Developmental State  95 non-​Western societies of their people, resources, and surpluses rather than single-​ mindedly undertaking. . . rational modernization’.87 This approach to the question of development in Latin America was again underpinned by a broader dissatisfaction with the poor outcomes of inward development policies across the Global South. A key concern for the dependentistas was the region’s intense penetration by foreign interests at a time that had been heralded so triumphantly as ‘post-​colonial’. This dissatisfaction hardened further after the successes of the far more radical Cuban Revolution started to become evident. Led by Fidel Castro, the 26th of July Movement had in 1959 overthrown the right-​wing government of Fulgencio Batista, who had been in power since 1952. Importantly, Cuba had followed an overtly state-​directed and socially integrated path, which many dependentistas saw as a more promising model for rethinking the operation of the developmental state, and for eradicating ‘indirect’ forms of international rule. In addition to the Cuban Revolution, the larger Soviet experience of planned economic development was, of course, also on their radar, as was the Chinese Communist Revolution under Mao Zedong, particularly in the late 1960s and 1970s. During this period, the Peoples’ Republic of China itself began to see the developing world as a primary arena of struggle from which to launch a world revolution. Its aim was to support Third World anti-​imperialist efforts, such as the nationalization of foreign businesses and the elimination of foreign military bases. However, in contrast to the Soviet Union, enrolling Southern states into a particular geopolitical faction was only a second-​order consideration for the Chinese, which naturally appealed to the dependentistas.88 Questions of dependency in situations of formal independence came, in this way, to mark the views of these theorists. For them, as Rist came to frame it, the right to self-​determination in the South had been ‘acquired in exchange for a right to self-​definition’.89 In their efforts to end colonial control over their territories and lives, Southern peoples had entered into an economy characterized by policies and institutions that terminated substantive independence before it began. In Latin America, this was exacerbated by the way in which national projects had already been captured, and came increasingly to be captured, by military dictatorships. The peoples of Argentina, Bolivia, Chile, Dominican Republic, Ecuador, El Salvador, Guatemala, Haiti, Honduras, Nicaragua, Panamá, Paraguay, Perú, and Venezuela all became victims of dictators at some point during these decades. In

87 Peet and Hartwick, Theories of Development (n 48), 188. 88 This was reflected in China’s eight principles of aid, laid out in Accra on 15 January 1964, which emphasized mutuality and equality, respect for sovereignty, interest-​free credit, provision of equipment, training of local officials, and living standards for Chinese experts not exceeding their local counterparts. Jeremy Friedman, Shadow Cold War: The Sino-​Soviet Competition for the Third World (University of North Carolina Press 2015) 73, 85, 117–​18 (hereafter Friedmann, Shadow Cold War). 89 Rist, The History of Development (n 48), 79.

96  Luis Eslava short, for the dependentistas, the nation-​state, as a capitalist developmental state, was extremely problematic. These concerns were echoed in many other parts of the South. In 1965, Kwame Nkrumah, who led the Gold Coast to independence from Britain in 1957, encapsulated his frustrations with this post-​colonial order under the rubric of ‘neo-​ colonialism’. As prime minister of colonial Gold Coast (1952–​1957) and then of independent Ghana (1957–​1960), and finally as president of the new nation (1960–​ 1966), Nkrumah confronted the possibilities and limits of the state form and the development project he had inherited. As head of the first British African colony to gain majority-​rule independence, Nkrumah adopted developmental measures designed to solve the country’s reliance on cocoa, its colonial primary commodity, and to ‘modernize’ its cultural makeup. In Africa Must Unite (1963), he stated: When I sat down with my party colleagues after independence to examine our urgent priorities, we framed a short list. We must abolish poverty, ignorance, illiteracy and improve our health services.90

Responding to this challenge, he and his government ‘were fighting to construct, not to destroy’.91 For Nkrumah it was clear that ‘[w]‌e needed to secure the conditions which would allow us to pursue our policy of reconstruction and development’.92 Based on a dependency rationale, he favoured a socialist future for the post-​colonial  world: Recently emergent states like Ghana are having to tackle the task of industrialization at the period of its highest development in the old-​established democracies, in conditions which have precluded the amassing of large capital reserves in the hands of private citizens. Upon the government, therefore, devolves the task of planning and establishing the main base of economic development and of pushing it through at a speedy rate against the formidable odds.93

Nkrumah was clear about the challenging context in which these goals were to be pursued, shaped, perhaps irrevocably, by ‘the devices of neo-​colonialists’, including international institutions like the IMF, the European Common Market, and the North Atlantic Treaty Organization (NATO).94 To counteract these, a strong reconfiguration of national economies and a full-​frontal attack on the imperial policy of breaking Africa up into increasingly smaller units amenable to neo-​colonial influence had to be enacted. Nkrumah’s vision found an institutional

90

Kwame Nkrumah, Africa Must Unite (Frederick A. Praeger 1963) 118. ibid [emphasis in original]. 92 ibid. 93 ibid 78. 94 ibid, xv. 91

The Developmental State  97 home at the Union of African States (UAS), known also as the Ghana–​Guinea–​ Mali Union, active between 1958 and 1963. One of its main aims was to pool member-​states’ legal, diplomatic, military, economic, and cultural resources ‘in order to consolidate their independence and safeguard their territorial integrity; to work jointly to achieve the complete liquidation of imperialism, colonialism and neo-​colonialism in Africa and the building up of African Unity’.95 Like many intellectuals in Latin America and beyond, Nkrumah’s concerns with dependency and neo-​colonialism became more pressing over time as he came to see traditional developmental policies and conceptualizations of the state as directly undermining the future viability of post-​colonial nations. Alluding to Lenin’s classic text, Nkrumah argued in Neo-​Colonialism, the Last Stage of Imperialism (1965), that ‘[t]‌he essence of neo-​colonialism is that the State which is subject to it is, in theory, independent and has all the outward trappings of international sovereignty’, but in reality ‘its economic system and thus its political policy is directed from outside’.96 Julius Nyerere, president of independent Tanzania (1964–​1985), expressed similar concerns about patterns of dependency in the post-​colonial world and the failure of orthodox developmental policies to challenge neo-​colonial exploitation. Nyerere sought to tackle Tanzania’s ‘underdevelopment’, therefore, by collectivizing its agricultural system and urging his new nation to rely upon its own forces. Based on African socialist ideas and with close ties to Mao’s China, Nyerere’s Arusha Declaration, spelling out his ‘new way of escaping poverty’, was adopted by the Tanganyika African National Union in February 1967.97 Like its uti possidetis-​bound state and ISIs, Latin America’s dependency theory came thus to form part of a global post-​colonial repertoire through which the South sought to engage with the world order, this time from a more radical position. The ideas of Nkrumah and Nyerere were expanded, for example, by Guyanese political activist and historian Walter Rodney, who presented a fully rounded account of Africa’s dependency in How Europe Underdeveloped Africa (1972). For Rodney, ‘[i]‌n the search for an understanding of what is now called “underdevelopment” in Africa, the limits of inquiry have had to be fixed as far apart as the fifteenth century, on the one hand, and the end of the colonial period, on the other’.98 By the late 1970s Samir Amin expressed a parallel set of concerns about colonialism’s broad impact on the ‘underdeveloped’ world, bringing in a new focus on the Middle East through his formative text Imperialism and Unequal Development (1977).99 All these thinkers challenged standard accounts of development and traditional readings of the ability of the developmental state to delink itself from the ‘world 95 Union of African States Charter (1961), art 3. See also art 4. 96 Kwame Nkrumah, Neo-​Colonialism, the Last Stage of Imperialism (International Publishers 1965) ix. 97 Rist, The History of Development (n 48), 123–​39. 98 Walter Rodney, How Europe Underdeveloped Africa (Pambazuka 2012) Preface. 99 Samir Amin, Imperialism and Unequal Development (Monthly Review Press 1977).

98  Luis Eslava system’, as Wallerstein came to call it.100 Their proposals even attracted the disapproval of several Soviet economists, who felt they risked diminishing ‘the role of domestic political and economic transformations in favour of an analysis based on global mechanisms’.101 In the Soviet view, dependency theory abandoned the ‘East and West, socialism and capitalism’ division central to its own worldview in favour of a conception of the international order as divided between ‘poor South’ and ‘rich North’. The USSR, of course, fell in the latter group.102 Despite their staunchly critical stance, however, dependency theorists continued to view the state as the main vehicle through which to resolve the most central questions of material need in the South. This faith resulted, in part, from the difficulties they foresaw when it came to building alternative transnational territorial formations in a world already so tightly organized around nation-​states. For example, Nkrumah’s anti-​neo-​colonial regional project lasted, in the form of the UAS, for only five years, and his own administration in Ghana ended shortly afterwards, after a CIA-​sponsored coup deposed him in 1966.103 Nor were attempts by Martinican writer Aimé Césaire and Senegalese thinker Léopold Sédar Senghor to re-​imagine independence from France in a way that moved beyond the figure of state sovereignty successful (or, perhaps, even possible at all).104 A similar attempt to move beyond the state motivated the First Solidarity Conference of the Peoples of Africa, Asia and Latin America—​the Tricontinental Conference—​which in 1966 brought national liberation movements and state representatives to Havana from across these three regions. At the Tricontinental, they were understood, for the first time, as a single South. Advancing the energies that had been present at the Bandung Conference in 1955, but with a much clearer anti-​ imperial agenda, and this time organized explicitly around strands of communist thought, the delegates attempted to devise a framework for an international order that would not be simply inter-​national—​about inter-​state relations—​but would, instead, be predicated on a far wider and deeper understanding of Southern solidarity.105 But the order they sought to challenge was already too well entrenched. This can be seen in the fate of the initially anti-​state national liberation movements attending the Conference. For example, the movement represented by the revolutionary anti-​colonial leader Amilcar Cabral in what was then Portuguese Guinea proved unable to withstand the pull of mainstream statehood, with ‘independence’ 100 Immanuel Wallerstein, The Modern World-​System I: Capitalist Agriculture and the Origins of the European World-​Economy in the Sixteenth Century (Academic Press 1974). 101 Friedman, Shadow Cold War (n 88), 193. 102 ibid. 103 Prashad, The Darker Nations (n 67), 110–​11. 104 See especially Wilder, Freedom Time (n 1). For the possibilities and limits of thinking beyond the nation state, see also Frederick Cooper, Citizenship Between Nation and Empire: Remaking France and French Africa, 1945–​1960 (Princeton University Press 2014); Richard Drayton, ‘Federal Utopias and the Realities of Imperial Power’ (2017) 37 Comparative Studies of South Asia, Africa and the Middle East 401 105 Prashad, The Darker Nations (n 67), 105–​15.

The Developmental State  99 coming eventually to the new state of Guinea-​Bissau in September 1973 (eight months after Cabral’s assassination). From this point its road towards ever-​more standard forms of international disciplining was paved: acceding first to the UN in 1974, Guinea-​Bissau became a member of both the IMF and the World Bank in 1977. Today, after four decades of state independence and intense developmental interventions, it remains one of the world’s poorest nations. The NIEO, signed as Guinea-​Bissau was gaining independence and entering the international order, did little to prevent this trajectory.

VI. Conclusions This chapter suggests that the history of decolonization in Latin America enclosed the promises as well as the struggles of what Chatterjee has aptly described as ‘most of the world’.106 It led the way towards colonial emancipation, but also prefigured, at every step, each forthcoming agony for the Third World as a whole. The post-​colonial state, then, as it was born and evolved in Latin America, and travelled to the rest of the South, proved to be a cul-​de-​sac when it came to thinking about alternative post-​colonial futures. The task of separating the state from its early use as a dispositif through which to discipline territories and populations caught up in the process of differentiated modernization proved to be impossible. Nor could the state’s instrumental nature, particularly as rendered after the Second World War, be disentangled from a narrow set of national and international class interests. Either in the form of ISIs or in the dependency theorists’ more radical prescriptions, the state to which the decolonization period gave birth struggled unsuccessfully to distance itself from unequal trade relations, debt accumulation, environmental exploitation, and increasing social inequality. Decolonization encountered its limits in the NIEO. At that point it became abundantly clear that international institutions and powerful states retained the upper hand when it came to the operation of the world order, even at a time when the ‘developing’ world was at its most outspoken. In Latin America, this upper hand made itself felt via the increasing resort, on the part of the ‘developed’ world, to bilateral arrangements to break solidarity pacts; by the gradual monopolization by multinational corporations of the region’s meagre industries; by the transformation of state infrastructure into collateral; by the denial, on the part of the international financial institutions, of access to special drawing rights and thus to international liquidity, forcing governments to agree to increasingly draconian conditionality requirements, and beyond.107 Direct military intervention also 106 Partha Chatterjee, The Politics of the Governed: Reflections on Popular Politics in Most of the World (Columbia University Press 2004). 107 Jorge Lozoya and Jaime Estevez (eds), Latin America and the New International Economic Order (UNITAR, CEESTEM, University of Texas 1980) xvi–​xvii.

100  Luis Eslava formed part of this repertoire of arms-​length manipulation, with the 1973 coup against Salvador Allende’s democratically elected socialist government in Chile perhaps the most representative case in the region. The state apparatus, the development discourse, international interests, and regressive forces embedded into the logic of international institutions all supported these actions, directly or indirectly, favouring an emerging transnational set of interests and elites, while at the same time disciplining local populations through repeated interventions. I leave the story in the mid-​1970s, just as the Third World’s call for a New International Economic Order was falling on deaf ears, if not actively crushed. In many ways valuable and energizing, this moment represents the high-​point of the non-​European world’s struggle against colonialism and its legacy. Yet when examined as part of the trajectory of the developmental state’s emergence, the fate of the NEIO must also be understood as a red flag, warning of the difficulties involved in realizing a more equitable world. The next chapter of this story has, sadly, been marked by the same paradoxes. The debt crisis at the end of the 1970s, the structural adjustment reforms of the 1980s, and later the arrival of neoliberalism and more intractable forms of path dependency gave rise to a revamped dispositif of social disciplining, the so-​called ‘new developmental state’, now a common feature across the South and certain parts of the Global North.108 However, just like the ‘old’ developmental state, this new developmental state is strongly contested by grassroots activism, Indigenous organizations, alternative transitional alliances, and new ‘post-​developmental theories’ such as ‘buen vivir’, ‘post-​extractivism’, and decolonial thought more generally.109 These forms of resistance confirm that the battle for a different international law is still alive.

108 On the ongoing effects of dependency, see Andrew Fischer, ‘The End of Peripheries? On the Enduring Relevance of Structuralism for Understanding Contemporary Global Development’ (2015) 26 Development and Change 700. 109 See, for example, Arturo Escobar, ‘Degrowth, Postdevelopment, and Transitions: A Preliminary Conversation’ (2015) 10 Sustainability Science 451.

4

Colonial Fragments Decolonization, Concessions, and Acquired Rights Matthew Craven

The twentieth century, when the future looks back on it, will not only be remembered as the era of atomic discoveries and interplanetary explorations. The second upheaval of this period, unquestionably, is the conquest by the peoples of the lands that belong to them.1

I. Introduction In one of a series of anonymous articles written in El Moudjahid in the years between his two most significant works—​Black Skin White Masks (1952) and The Wretched of the Earth (1961)—​Frantz Fanon described what he saw to be an emergent pattern in the process of decolonization. On one side, he saw the parties leading the struggle against colonialist oppression as deciding, at a certain moment, and ‘for practical reasons’, to accept ‘a fragment of independence with the firm intention of arousing the people again within the framework of the fundamental strategy of the total evacuation of the territory and of the effective seizure of all national resources’.2 On the other side, however, he saw an opposite movement at work: the colonial powers, who had formerly privileged the social, cultural, and religious dimensions of the civilizing mission (‘conjuring away’, as he put it, the concessions, expropriations, and exploitation that accompanied it) had suddenly turned things on their head. ‘In the negotiations on independence’, he explains, ‘the first matters in issue were the economic interests: banks, monetary areas, research permits, commercial concessions, inviolability of properties stolen from the peasants at the time of the conquest, etc . . . . Of civilizing, religious, or cultural works, there was no longer any question’.3 The actual ‘rights of the occupant’ he declared, 1 Frantz Fanon, ‘First Truths on the Colonial Problem’, in Toward the African Revolution: Political Essays (Haakon Chevalier tr, Monthly Review Press 1967) 120 (hereafter Fanon, ‘First Truths’). First published in Frantz Fanon, ‘First Truths on the Colonial Problem’ El Moudjahid (22 July 1958). 2 Fanon, First Truths (n 1) 120. 3 ibid 121. Matthew Craven, Colonial Fragments In: The Battle for International Law: South-North Perspectives on the Decolonization Era. Edited by: Jochen von Bernstorff and Philipp Dann, Oxford University Press (2019). © The Several Contributors. DOI: 10.1093/oso/9780198849636.003.0005

102  Matthew Craven ‘were then perfectly identified’:  ‘[a]‌rmed with a revolutionary and spectacular good will, it grants the former colony everything. But in so doing, it wrings from it an economic dependence which becomes an aid and assistance programme’.4 Fanon identifies here a pervasive theme that was to run throughout the course of decolonization—​picked up in one direction by the likes of Nkrumah5 and Rodney6 in their discourses on neo-​colonialism and, in another, by the various initiatives to promote economic self-​determination (most notably in the form of the Declaration on Permanent Sovereignty over Natural Resources,7 and the New International Economic Order8). The theme was as simple as it was seemingly intractable—​that political self-​determination had to be seen as simply the first stage of a broader, anti-​colonial struggle that had to engage, ultimately, with its economic dimensions, and that in order to do so, it had to confront the grounds of its opposition: ‘[t]‌he notorious rights of the occupant, the false appeal to a common past [and] the persistence of a rejuvenated colonial pact’.9 If, as Fanon suggests, the battle over the economic dimensions of decolonization was often a post-​independence preoccupation—​focusing on questions such as the right to nationalize, the necessity and quantum of compensation, the terms of trade and investment, the transfer of technology and aid—​it was always to be pre-​ configured by the prior juridico-​political settlement that was to accompany formal independence itself. And Fanon’s description of the ‘fragment’ was to exemplify a particular, but yet very common, way of thinking about that settlement: that it was to be understood, above all else, as a moment in which the political landscape was to be profoundly changed, but in which the general terms of economic relations were to be maintained intact. The first half of this equation, of course, was almost axiomatic—​decolonization meant, at the very least, the renunciation of political control by the metropole and the emergence to independence of a host of ‘newly independent’ states. And the very formalities of instituting, in each case, a new juridical order and constituting it as ‘sovereign’, seemed to signify something of a revolutionary break. If a transformation of the ‘public’ sphere, thus, was to be taken as read, what remained to be negotiated were the terms under which putatively ‘private’ legal relations were to remain in place, and the extent to which they were immune to changes in the ‘superstructure’ of the public order of the polis. To what extent, it was repeatedly asked, should pre-​independence relations of property, 4 ibid. 5 Kwame Nkrumah, Neo-​Colonialism: The Last Stage of Imperialism (International Publishers Co., Inc. 1966) xiii. 6 Walter Rodney, How Europe Underdeveloped Africa (Bogle-​L’Ouverture Publications 1972). 7 UNGA Res 1803 (XVII) Permanent Sovereignty over Natural Resources (adopted 14 December 1962). On the PSNR see Nico J Schrijver, Sovereignty over Natural Resources:  Balancing Rights and Duties (CUP 1997). 8 UNGA Declaration on the Establishment of a New International Economic Order (1 May 1974) UNGA Res 3201 (S-​VI). On the NIEO see Mohammed Bedjaoui, Towards a New International Economic Order (Holmes Meier 1979). 9 Fanon, First Truths (n 1) 122.

Colonial Fragments  103 contract, or debt be deemed to ‘survive’ the transition to independence? Did the newly independent states ‘succeed’ to obligations concluded in name of the former colonial authorities? And was there, as Fanon noted, an obligation to respect the ‘acquired’ rights of the occupant? Even though the terms of this analytic of (economic) continuity and (political) change were to be largely influential in shaping the discussion of state succession during decolonization—​illustrated most visibly in Bedjaoui’s assault on the doctrine of acquired rights in the early 1970s10—​I want to suggest that it is also largely misleading. Beyond the observation that the rubric of ‘economic continuity and political change’ seemed merely to internalize a set of contested delineations (between the public and the private, the political and the economic), it was also a description that only barely captured the complex legal transformations that were to be necessitated by decolonization. My suggestion is, in fact, that one might better understand the process of decolonization to be precisely the opposite of that proposed—​as being marked, in effect, by political continuity (rather than change) and economic change (rather than continuity). If, on the one side, one may understand the political dimensions of decolonization as being couched in the normalizing language of Western sovereignty—​the preservation of colonial boundaries, the acquisition of the legal, political, and cultural markers of ‘statehood’, the assignment of nationality, and the survival of the administrative structures of the colonial state, etc.11—​so also, on the other, it is apparent that economic relations (of property, contract, and debt) were only capable of being held stable by means of being substantively transformed. Political change, to put it most starkly, was to be achieved largely by keeping the legal arrangements of rule in place, whereas economic continuity necessitated a profound reorganization of existing relations of property, contract, and debt. In subverting the received account, I do not intend to argue with Fanon and others as to the limits of political independence or indeed displace the insights of the critics of neo-​colonialism. Indeed, my account owes much to Nkrumah’s observation that, during decolonization, the former colonial powers had simply exported the contradictions of capitalism so as to turn a local competition between capital and labour into an international competition between the exporters of capital and the producers of raw materials.12 What I do want to call attention to, however, is how the language of legal continuity (and economic stability) provided cover for a fundamental transformation of the legal landscape of the colony, turning regimes of resource extraction into foreign investments, public works into private undertakings, and political institutions into economic enterprises. At the 10 Mohammed Bedjaoui, ‘Second Report on Succession in Respect of Matters other than Treaties’ UN Doc A/​CN.4/​216/​REV.1 (1969-​II) Yearbook of the International Law Commission. 11 See Antony Anghie, Imperialism, Sovereignty, and the Making of International Law (CUP 2005) 204–​07. 12 Nkrumah (n 5) xii–​xiii.

104  Matthew Craven centre of this work of transformation were two institutions/​ideas—​one being the ‘concession agreement’, and the other the idea of ‘acquired rights’.

II.  ‘Concessions’ and the expansion of empire One of the main themes of the critics of imperialism in the early twentieth century was the perception that the imperial project—​associated for several centuries with the establishment of overseas colonies and battles over mercantile trade—​had undergone a transformation in the nineteenth century with the emergence of high finance capitalism, cartels, monopolies, trusts, and combinations, in which capital was seen to be moving out of the European metropole to be invested in speculative initiatives overseas.13 Associated with this were not only projects for the construction of dams, railways, canals, ports, telegraph systems, and other forms of infrastructure for manufacturing and trade, but investments in the extraction of mineral resources (such as gold, diamonds, copper, bauxite, tin, and petroleum) or for the establishment of large-​scale agricultural activities (for the production of sugar, timber, tobacco, rubber, and palm oil). The critics were divided as to what to make of this—​for Luxemburg14 it was a feature of Capital’s ongoing search for new sites of primitive accumulation, for Lenin15 a political dimension of the ‘highest stage’ of imperialism, for Hilferding16 an offshoot of the emergence of centralized banking, and for Hobson17 and Woolf18 a degradation of Metropolitan politics. Whatever the cause for the ‘export’ of capital during this period, the conditions under which such projects were pursued were largely undertaken through the medium of what were to become known as ‘concession agreements’ (later to acquire a variety of designations19 such as economic development agreements,20 13 See generally, Anthony Brewer, Marxist Theories of Imperialism: A Critical Survey (Routledge & Kegan Paul 1980); David K Fieldhouse, The Theory of Capitalist Imperialism (Longmans 1967); Bernard Semmel, The Rise of Free Trade Imperialism: Classical Political Economy the Empire of Free Tade and Imperialism 1750−1850 (CUP 1970). 14 Rosa Luxemburg, The Accumulation of Capital: Translated (Agnes Schwarzschild tr, first published 1913, Routledge & Kegan Paul 1951). 15 Vladimir I Lenin, Imperialism, the highest stage of capitalism (first published 1916, International Publishing Company 1939). 16 Rudolf Hilferding, Das Finanzkapital: Eine Studie über die jüngste Entwicklung des Kapitalismus (Brand 1910). 17 John A Hobson, Imperialism: A Study (James Nisbet & Co 1902). 18 Leonard Woolf, Empire & Commerce in Africa: A Study in Economic Imperialism (Labour Research Department 1920). 19 See Christoph Ohler, ‘Concessions’ in Rüdiger Wolfrum (ed), Max Planck Encyclopedia of Public International Law (OUP 2013) para 4. 20 See James Hyde, ‘Permanent Sovereignty Over Natural Wealth and Resources’ (1956) 50 American Journal of International Law 862; Duncan McNair, ‘The General Principles of International Law Recognized by Civilized Nations’ (1957) 33 British Year Book of International Law 11; Kenneth Carlston, ‘Concession Agreements and Nationalization’ (1958) 52 American Journal of International Law 260; James Hyde, ‘Economic Development Agreements’ (1962) 105 Recueil des Cours de l’Académie de Droit International de La Haye 271; Tom Farer, ‘Economic Development Agreements: A Functional

Colonial Fragments  105 public-​private-​partnerships, or more simply as state contracts21). The terms of such ‘agreements’ varied enormously22 but in the metropolitan context at least they were understood to assume the form of a transaction between a ‘host’ government and a private individual/​corporation in which the latter would commit themselves to certain ‘public’ undertakings (eg, to extract resources, build pipelines, railways, telegraph systems and canals, or supply water and electricity) in return for the right to sell and profit from the resources extracted or recoup investment by operating the undertaking in question.23 O’Connell was to describe them, thus, in the following terms: An economic concession is usually a licence granted by the state to a private individual or corporation to undertake works of a public character, extending over a considerable period of time, and involving the investment of more or less large sums of capital. It may also consist in the grant of mining or mineral and other rights over state property. To this type of concession there are usually annexed rights of marketing and export, as well as provisions concerning royalties. Thirdly, a concession may be merely a grant of occupation of public land for the carrying on of some public purpose, such concession taking the form of a contract between the state and the concessionaire.24

The public character of concession agreements was often marked, furthermore, by the granting of de jure or de facto monopolies (eg, in relation to navigation or the operation of port facilities) or by endowing concessionaires with administrative authority or rights of eminent domain (eg, the right to compulsory purchase of land).25 In many respects, what delineated the concession, as a distinct juridical instrument, was its contrast to other kinds of transaction. Concessions were clearly not merely ‘private contracts’ insofar as one party to the agreement would be a public

Analysis’ (1971) 10 Columbia Journal of Transnational Law 200; Rainer Geiger, ‘The Unilateral Change of Economic Development Agreements’ (1974) 23 International and Comparative Law Quarterly 73. 21 Robert Y Jennings, ‘State Contracts in International Law’ (1961) 37 British Yearbook of International Law 156; Muthucumaraswamy Sornarajah, International Commercial Arbitration:  The Problem of State Contracts (Longman 1990) 3. 22 See Memorial of Reparations Commission (Reparation Commission v German Government) [1923] Annual Digest 341. Huang notes two different usages of the term: (1) a grant by one state to another of political rights over territory (such as the international settlements in China); and (2) ‘in municipal law, a grant of exclusive or non-​exclusive rights, privileges or franchise, affecting public interest, to an individual, a public or private corporation . . . ’. Thomas TF Huang, ‘Some International and Legal Aspects of the Suez Canal Question’ (1957) 51 American Journal of International Law 277, 292. 23 Gauthier Gidel, Des Effets de Vannexation sur les Concessions (1904) 123. 24 David P O’Connell, ‘Economic Concessions in the Law of State Succession’ (1950) 27 British Yearbook of International Law 93 (hereafter O’Connell, ‘Economic Concessions’). 25 McNair (n 20) 3.

106  Matthew Craven agency,26 and the agreements themselves would be visibly oriented towards the achievement of certain designated public ends. Nor for similar reasons could they be regarded as ‘treaties’ even if the concessionaire itself was a state-​owned foreign corporation.27 While some involved the ‘grant’ or ‘lease’ of territory, there would, in addition, be some continued expectation of public benefit (usually revenue in the form of rent or royalties) from the operations of the undertaking. And while many assumed the form of a public ‘license’ or ‘franchise’, substantial variations existed as between, for example, natural resource concessions and those concerned with the operation of public services.28 For those analysing the legal status or characteristics of ‘concessions’ in the early twentieth century, therefore, it was their ‘hybrid’ character that stood out.29 For Moser, they were contracts that ‘touched upon the public interest’;30 for Lauterpacht, they lay ‘somewhere between a “contract” . . . and a treaty’;31 and for O’Connell, they stood ‘midway between the category of a debt owed by the state and the category of the private ownership of land’.32 As he was to explain: The correct opinion would seem to be that the rights of a concessionaire are of mixed public and private character: the matter being public insofar as it involves a concession of sovereignty . . . So far as the concessionaire is concerned, however, the rights which he acquires under the contract are analogous to those to which any contract of private law gives rise.33

If this was (and remains) the received framework for understanding the concession within the metropole, the story was far more complex in the context in 26 David P O’Connell, ‘A Critique of the Iranian Oil Litigation’ (1955) 4 International and Comparative Law Quarterly 267, 268–​69 (hereafter O’Connell, ‘Critique of the Iranian Oil Litigation’). In view of this, Amos S Hershey, ‘The Succession of States’ (1911) 5 American Journal of International Law 285 and Francis B Sayre, ‘Change of Sovereignty and Private Ownership of Land’ (1918) 12 American Journal of International Law 475 were to treat concessions as a species of ‘State contract’. See also, German Reparations Case (Interpretation of London Agreement of 9 August 1924) RIAA 429, 480 (hereafter German Reparations Case). 27 Anglo-​Iranian Oil Co (Preliminary Objection, Judgment) [1952] ICJ Rep 93. See Leo T Kissam and Edmond K Leach, ‘Sovereign Expropriation of Property and Abrogation of Concession Contracts’ (1959) 28 Fordham Law Review 177, 194. 28 Saudi Arabia v Arabian American Oil Co. (ARAMCO) [1963] International Law Reports 117, 157. It noted that the economic conditions of concessions differed—​a mining concession, for example, ‘destroys the very substance of the concession’ whereas a public service or public works concession may not (161). 29 In the Warsaw Electric Company Case (1932) RIAA vol III 1687, the arbitrator (Asser) held that ‘ . . . the concession granted by the City to the Company has, as is generally the case with all concessions, a double character: it falls within the scope of both public and private law’. 30 Hermann Mosler, Wirtschaftskonzessionen bei Änderungen der Staatshoheit: Eine völkerrechtliche Studie zum Hoheitswechsel und zur Hoheitsausübung auf fremdem Staatsgebiet (Kohlhammer 1948) 66. 31 Elihu Lauterpacht, ‘Some Aspects of International Concession Agreements’ (1959) 1 Bulletin of the Harvard International Law Club 5. 32 O’Connell, ‘Critique of the Iranian Oil Litigation’ (n 26) 95. 33 ibid 270.

Colonial Fragments  107 the colonial and ‘semi-​colonial’ periphery. In those sites, the concession served not only as a means to establish (private) rights over putatively public land or resources, but also as a vehicle through which colonial rule would be expanded and deepened. For many of the ‘concession hunters’ of the late nineteenth century,34 concessions were a means by which they could establish, through agreement with those who they took to be local owners of land, their right to use and exploit that land. Typically, this was either for purposes of the construction of a commercial infrastructure (eg, railroads, ports) or for purposes of the exploitation of natural resources (eg, gold, diamonds, tin, copper, iron ore, bauxite, and oil) in areas beyond the frontiers of colonial rule. While the agreements were visibly ‘local’ in the sense that they purported to secure for the concessionaires a basis for their claim of ownership over the land/​resources in question, they also served as a critical resource in persuading the (sometimes reluctant) metropolitan authorities to broaden the reach of imperial power. When Rhodes was to secure, for example, the famous Rudd Concession from Lobengula, the leader of the Ndebele, the agreement purported to provide Rhodes with a ‘complete and exclusive charge over all metals and minerals’ within Lobengula’s several ‘kingdoms, principalities and dominions’.35 This immediately provided Rhodes and Rudd (and the sponsoring Gold Fields of South Africa Company) with something they might both exploit and capitalize through the sale of the rights concerned to the ‘Central Search Association’ (in which they held shares).36 In addition, however, it also provided Rhodes with a means of persuading the British Government to grant a Royal Charter to him in the guise of the British South Africa Company (BSAC).37 The Chartering of the BSAC, in turn, not only endowed the Company with public authority (ultimately assuming responsibility for the administration of Northern and Southern Rhodesia) but also served as a means of confirming the legitimacy of the Rudd Concession itself (which had continued to be widely disputed38). Ultimately, as Galbraith noted, the limits which the government sought to establish for the chartered company ‘had little to do with the rights of an African chief ’.39 ‘The Lobengula who mattered’ he observed, ‘was largely an artificial creation whose power was assumed to be unquestioned in the gold regions of the Mazoe Valley and other areas south of the Zambezi claimed by

34 For an early critique of the role of concession hunters in the expansion of empire in the nineteenth century see Henry N Brailsford, The War of Steel and Gold: A Study of the Armed Peace (Bell 1914) 52–​54,  61–​63. 35 See generally John S Galbraith, Crown and Charter: The Early Years of the British South Africa Company (University of California Press 1974) 72–​80. 36 ibid  84–​86. 37 See Woolf (n 18) 35. 38 See Galbraith (n 35) 72, 120. 39 ibid.

108  Matthew Craven the Portuguese. This invention was essential to undergird the British claim to a sphere of influence as against Portugal.’40 What was put into operation through the institution of the concession agreement in such cases, thus, was not so much a blurring of the (putative) boundaries between public authority and private entitlement, but rather the opposite: an attempt to put those conditions in place. For what they sought to enable was not just the acquisition of rights to exploit resources or acquire land for the purposes of the construction of railroads from native ‘owners’, but the very possibility of such land being owned or possessed in the first place.41 If, as Lipson observes, one of the preconditions for the export of capital in the nineteenth century was the parallel export of Western regimes of property rights,42 the means by which that was to occur was not by erasure of existing regimes of ownership (such as were imagined to exist), but by their subsumption. For in order to create such regimes of entitlement without appearing, at the same time, to undermine the very principles that were to be put in place, those rights had to be visibly ‘acquired’ from their indigenous ‘owners’. In purporting to provide the basis for rights of exploitation or of ownership, then, the concession agreement would have a twofold function—​both vesting rights in the concessionaire, but creating also, in the same imaginary, the authority to vest. The sovereign right to dispose of land or resources (from which one may adduce sovereignty tout court) was thus produced through the instrument of the concession as being its unexpressed precondition. Two points emerge from this. The first is that, in the context of late nineteenth-​ century colonial practice, concession agreements rarely assumed, in any straightforward sense, the character of an agreement between a private party and a sovereign state, nor were they limited to the establishment of private rights or interests. Rather, one finds a complex interweaving of economic and administrative functions, a confluence of public and private initiatives, in which the rights of the concessionaire were intimately connected to the production of public power as much as a consequence of it.43 The second, and more straightforward point, is that 40 ibid 107. He notes elsewhere (73–​74) that ‘[w]‌hatever the translation may have been, Lobengula did not have the power, even if he had the inclination, to alienate land. Also, leaving aside the issue of whether the Ndebele actually controlled the areas of Mashonaland where the gold deposits reputedly were, Lobengula could have granted the concessionaries only the usufruct . . . . These men [Rudd and Rhodes] in pursuit of their own ends credited Lobengula with an absolute power over his own people which he did not possess and control over other peoples which he did not exercise. “Matabeleland” was aggrandized on the maps to include the Shona and the other peoples, and this imagined empire was colored pink. The hue was important—​pink rather than red—​because the object was rule by a British company not by the imperial government.’ 41 See, eg, Concessions Ordinance 1900 (No 14)  of the Gold Coast Colony, and Mining Rights Regulation Ordinance (1905) section 2. 42 Charles Lipson, Standing Guard:  Protecting Foreign Capital in the 19th and 20th Centuries (University of California Press 1985) 14–​15, 20. 43 Woolf notes, for example, that the concessions granted to the British East Africa Association and the German East Africa Company in 1887–​1888 included: ‘A monopoly of the right to purchase public lands, of regulating trade, navigation, and fisheries, of making roads, railways and canals; the right to

Colonial Fragments  109 concession agreements operated as an important technology of imperial expansion in both its ‘formal’ and ‘informal guises’—​providing both its rationale and its ethos, connecting the resources of the South to the commercial networks of business and commerce in the North through the medium of the contract, which ultimately created its own grounds of validity.

III.  Concessions and acquired rights By the time in which decolonization was placed upon the international agenda in the aftermath of the Second World War, not only had the economies of colonial territories become organized around the export of primary materials to manufacturing centres in the North, but a large proportion of the major economic assets in the colonial world (mining, agriculture, oil production, transportation, etc.) were owned or controlled by companies either registered in the Colonial metropole or with majority shareholding there.44 The prospect of decolonization, thus, immediately put in question the fate that might befall such commercial undertakings: was there a duty on the part of the newly independent states to recognize and honour existing concessionary contracts? Did the former colonial powers enjoy a right to seek protection of such interests after independence? Whether they should have been entitled to any kind of protection under international law was not immediately obvious. Quite apart from the merits of any special protection being afforded to those who had already profited significantly from the extraction of resources from the colony, there was a general presumption, as Garcia Amador noted in his reports on State Responsibility at the time, that questions of property and contract (and hence concessions) were matters that presumptively fell within the ‘domestic jurisdiction’ of states45 and that, therefore, newly independent states would be in a position to deal with such matters in the manner of their own choosing. The main qualification here concerned the extent to which certain pre-​existent ‘rights of aliens’ might be implicated and be due protection; and in that respect, two fields of international law appeared to be relevant—​first, the law of diplomatic protection so far as it governed the treatment of aliens, and second, the law of state succession. Formally speaking, the question of state succession appeared to be antecedent to that concerning the treatment of aliens: the responsibility of a new state for a putative violation of the rights of an alien claimant (as might appear, for example, from the non-​performance of a contractual obligation or the discriminatory levy taxes on the inhabitants, to establish customs houses, to levy dues; an exclusive privilege to work mines and to issue notes.’ Woolf (n 18) 246. 44 See generally Rodney (n 6) ch 5; Nkrumah (n 5) ch 6. 45 See Francisco García-​Amador, ‘International Responsibility, Fourth Report’ UN Doc A/​CN.4/​119 (1959-​II) International Law Commission Yearbook 3, para 6.

110  Matthew Craven expropriation of property) depended upon the hypothesis that the rights in question were duly ‘acquired’ in the first place. That prior question, however, could not simply be answered by reference to the requisite legal formalities applicable within the colony or protectorate (ie, whether the rights had been acquired according to the law applicable within the colony), but demanded also an answer to the question whether the newly independent state itself was also condemned to respect and acknowledge all pre-​existent proprietary entitlements—​and that was to be answered, it was clear, by reference to the emergent law of state succession. Despite the formal distinction, however, it became evident that the answer to both sets of questions was to take the same form—​whether, that is, there existed an international obligation to respect ‘acquired rights’. And it was the doctrine of acquired rights that came to be offered as the principal rationale for the protection of concessionary interests during decolonization—​being given particular prominence in the influential work of DP O’Connell on state succession,46 but finding its way also into the work of Garcia-​Amador on state responsibility.47 While United States (US) courts in the early part of the nineteenth century had, under the sway of CJ Marshall’s influential opinion in US v Percheman,48 recognized the continuity of pre-​existent private rights in land in territories acquired by the US, it was not until the early twentieth century that scholars such as Gidel49 and Descamps50 began to rationalize that practice as a principle of public international law and seek to articulate it in terms of the doctrine of acquired rights. The doctrine of acquired rights itself was a concept they borrowed from von Savigny’s work on private international law51 and which had become, in the intervening years,52 a key premise or axiom in the conflict of laws: ‘[e]‌very right which has been acquired under the law of a civilized country’ as Dicey was to put it, ‘is recognized and, in general, enforced by English Courts’.53 46 O’Connell, ‘Economic Concessions’ (n 24). 47 García-​Amador (n 45). 48 US v Perchemann (No. 95) [1833] Peters. See also Strother v Lucas [1838] Peters 410, 435, 438; Smith v United States [1836] Peters 326, 330; United States v Auguisola [1863] Wallace 352, 358; US v Soulard [1830] Peters 511; Ortega v Lara [1906] US 399; Vilas v City of Manila [1911] US 345. For a rationalization of this practice that forefronts the distinction between public and private legal relations see LS Rowe, ‘The Political and Legal Aspects of Change of Sovereignty’ (1902) 50 The American Law Register (1898–​1907) 466, 474–​ 75; and Herbert A Wilkinson, The American Doctrine of State Succession (Johns Hopkins Press 1934). 49 Gidel (n 23). 50 P Descamps, ‘La définition des droits acquis: sa portée générale et son application en matière de succession d’Etat à Etat’ (1908) 15 Revue Générale de Droit International Privé 385. 51 Friedrich C v Savigny, System des heutigen Römischen Rechts (Veit 1849) translated by William Guthrie as Friedrich C v Savigny, Private International Law: A Treatise on the Conflict of Laws: And the Limits of Their Operation in Respect of Place and Time (Stevens &​Sons 1869) 286, 289. 52 Thomas E Holland, The Elements of Jurisprudence (5th edn, Clarendon Press 1890) 359; Albert V Dicey, A Digest of the Law of England with Reference to the Conflict of Laws (2nd edn, Stevens and Sons 1908); A Pillet, La théorie générale des droits acquis (Martinus Nijhoff 1925) 489; Joseph H Beale, A Treatise on the Conflict of Laws (Baker Voorhis & Co 1935). See also Restatement of the Law of Conflict of Laws: As Adopted and Promulgated by the American Law Institute at Washington, DC, May 11, 1934 (American Law International 1934). 53 Dicey (n 52) xxxi.

Colonial Fragments  111 While, as a conflicts doctrine, the principle of acquired rights was primarily concerned with the recognition of rights vested in an individual under the terms of a foreign legal order, it was only a small step for an equation to be made between the laws of a spatially distinct state and those of a temporally distinct state (the ‘predecessor state’). Indeed, in cases in which a portion of the territory of one state was ceded to another, there really was no distinction—​one was dealing, in all instances, with the laws of another state. Once, then, one was able to recognize the existence of a general obligation to recognize and respect pre-​existent acquired (vested) rights, it was only one small further step to the conclusion that the infringement of such a right following the cession or annexation of territory might constitute an international tort if the right in question was that of an alien.54 What was perhaps most significant here in the merging of the doctrine of acquired rights with the doctrine of state succession was the fact that they appeared to share a common generative rationality—​the clue to which being found in von Savigny’s idea that they gave expression to the ‘natural limits’ of legislative authority. What was in contemplation was the desirability of securing the grounds for the recognition of a field of ‘extra-​territorial’ or ‘trans-​national’ legal relations that were to be preserved intact irrespective of the legislative/​sovereign prerogatives of individual states. Private rights would enjoy, in that sense, a permanence that exceeded any political authority—​they survived not in virtue of being ‘recognized’ but in virtue of being left ‘unaffected’. Political authority, for its part, ended at the point at which it encountered private rights. If the animus for the doctrine of acquired rights was evidently to have its origin in the precepts of classical political economy and laissez-​faire government, it was also an idea that Schmitt was to later bring into prominence in his account of the (declining) European spatial order at the end of the nineteenth century. What the doctrine of state succession signified, for him, was the existence of a ‘common economic space’ or ‘free market’ within Europe that was underpinned by ‘a certain relation of public and private law, of state and state-​free society’.55 The theory and practice of State succession, in his view, paralleled that within the law of occupation,56 in the sense that it was premised upon the preservation of the underlying economic order—​that of a ‘common free market transcending he political borders of sovereign states’.57 As he was to explain: Given that state dominion (imperium or jurisdictio) based on public law, on the one hand, and private property (dominium) based on private law, on the other,

54 See G Kaeckenbeeck, ‘The Protection of Vested Rights in International Law’ (1936) 17 British Year Book of International Law 7. 55 Carl Schmitt, The Nomos of the Earth in the International Law of the Jus Publicum Europaeum (Telos Press 2003) 197. 56 cf Article 43, Regulations Respecting the Laws and Customs of War on Land, annex to the Convention (IV) Respecting the Laws and Customs of War on Land (adopted 18 October 1907) (1907). 57 Schmitt (n 55) 197.

112  Matthew Craven were separated sharply, it was possible to isolate from juridical discussions the most difficult question, namely that of a total constitutional change tied to territorial change. Behind the foreground of recognized sovereignty, the private sphere, which in this particular case means the sphere of private economy and private property, largely remained undisturbed by the territorial change. With a territorial change, the international economic order—​the liberal market sustained by private entrepreneurs and businessmen, which was free in the same sense as free world trade, and the free movement of capital and labour—​retained all the international safeguards that it needed to function. All civilized states subscribed to the distinction between public and private law, as well as to the common standards of liberal constitutionalism; for all, property, and thus trade, economy, and industry belonged to the sphere of constitutionally protected private property. This constitutional standard was recognized as fundamental by all states party to the territorial change.58

His conclusion, thus, was that a ‘territorial change was no constitutional change in the sense of the social order and of property’; rather, it was a change only in the public legal sphere, which left unaffected the ‘internal currency of private legal property’.59 While the doctrine was to acquire considerable valence within international law in subsequent years, 60 there were considerable doubts, at the moment of its articulation, as to whether it was a principle applicable in case of the annexation of non-​ European territory.61 In the latter context, concessionary contracts, in particular, became a point of contention. A good deal of practice at the end of the nineteenth century had seen states claiming the right to cancel, or at least review, existing concessionary contracts—​this was the case, for example, following the annexation of Tarapaca by Chile in 1884, the annexation of Madagascar by France in 1896,62 and the annexation of the Boer Republics by Britain in 1900.63 Even the US, which as we

58 ibid. 59 ibid 198. 60 See, eg, Kaeckenbeeck (n 54); Charles Rousseau, Principes généraux du droit international public (Pedone 1944) 901–​06; John B Moore, A Digest of International Law, as Embodied in Diplomatic Discussions, Treaties: In Eight Volumes (US Government Printing Office 1906) 98; Green H Hackworth, Digest of International Law (US Government Printing Office 1940) 562–​67; Alexandre Makarov, Les changements territoriaux et leurs effets sur les droits des particuliers:  Rapport et projet de résolutions (L’Institut de Droit International 1950) 208; McNair (n 20) 16–​18. 61 Arrigo Cavaglieri, La dottrina della successione di stato a stato e il suo valore guridico (Archivio giuridico 1910) 122; Arthur B Keith, The Theory of State Succession: With Special Reference to English and Colonial Law (Waterlow and Sons 1907); see also Alphonse Rivier, Principes du droit des gens (A Rousseau 1896) 437–​38. 62 Moore (n 60) 387–​88. 63 See Parliamentary Papers (Report of the Transvaal Concessions Commission) (1901) (1901) (Cd. 623) in which it stated that ‘a State which has annexed another is not legally bound by any contracts made by the State which has ceased to exist’. Moore (n 60) 411–​14. The report was, no doubt, informed

Colonial Fragments  113 have seen had traditionally sought to preserve all existing private rights following its acquisition of territory by way of cession was far more equivocal when it came to the Spanish concessions in Cuba and the Philippines in 1898.64 In that context it had devised a general formula by which it was prepared to accept the validity of concessions only so far as they were both related to the territory and granted for its exclusive benefit.65 Those that appeared to be solely for the benefit of Spain66 or which concerned the purchase of public positions67 it refused to recognize. There are two main explanations for emergence of this practice. The first of these related to the character of the contracts themselves. Since, as mentioned previously, concessions appeared to be ‘hybrid’ instruments involving a mix of public and private law, the normal ‘test’ for intangibility was unavailable. What had to be brought into the equation was the question of whether the continuity of such legal relations was consistent with the new political settlement68—​and that, broadly speaking, explained the articulation of the US ‘benefit’ test. What needed to be distinguished, at the very least, were contracts that were justifiably open to enforcement as against the successor state from those that were clearly not.69 Not all contracts, it was reasoned, gave rise to proprietary entitlements,70 and not all proprietary entitlements were capable of being enforced against the successor. The second explanation, however, concerns the geographical orientation of the practice in question. Schmitt’s contention that the law of state succession was a productive facet of a specifically European territorial order—​giving expression to the existence of a common economic space—​was to suggest that the operative conditions of the doctrine of acquired rights might be similarly confined. This much, at least, was apparent during the late nineteenth century imperial expansion, in

by the British doctrine of Act of State. See Cook v Sprigg (1899) AC 572 and West Rand Central Gold Mining Company v The King, King’s Bench Division, vol 2 391. 64 See Moore (n 60) 389–​411; Charles E Magoon, Reports on the Law of Civil Government in Territory Subject to Military Occupation by the Military Forces of the United States (Government Printing Office 1902) 177. 65 Sayre (n 26)  712–​13 (referring to the Manila Railway Company case); Moore (n 60)  399–​402; Kaeckenbeeck (n 54) 11; Wilkinson (n 48) 50–​51. 66 Eg, Manila Railway Company cases, Attorney General Griggs, 23 OP 187. 67 See O’Reilly de Camara v Brooke [1908], Magoon (n 64) 209; Alvarez y Sanchez v United States [1910]. See generally Wilkinson (n 48) 46. 68 See, eg, John Westlake, ‘The Nature and Extent of Title by Conquest’ (1901) 17 Law Quarterly Review 392, 395–​98; John Westlake, ‘The South African Railway Case’ in John Westlake and Lassa Oppenheim (eds), The Collected Papers of John Westlake on Public International Law (University Press 1914) 490, 493; Max Huber, Die Staatensuccession: Völkerrechtliche und staatsrechtliche Praxis im XIX. Jahrhundert (Duncker & Humblot 1898) 18–​19. 69 See Sayre (n 26) 707. He cites, by way of illustration, the advice provided by law officer Magoon to the US government denying its liability for a security deposit of 27,503.06 pesos that had been provided to the Spanish collector of customs. See Magoon (n 64) 494. 70 See West (n 63) 411. See also Ernst Feilchenfeld, Public Debts and State Succession (Macmillan 1931) 626.

114  Matthew Craven which the question of succession was marked most by its almost total absence. As Schmitt notes, in that context, that [t]‌he power of indigenous chieftains over completely uncivilised peoples was not considered to be in the public sphere; native use of the soil was not considered to be private property. One could not speak logically of a legal succession in an imperium, not even when a European land-​appropriator had concluded treaties with indigenous princes or chieftains and, for whatever motives, considered them to be binding. The land-​appropriating state did not need to respect any rights to the soil existing within the appropriated land, unless these rights somehow were connected with the private property of a member of a civilised state belonging to the order of interstate, international law. Whether or not the natives’ existing relations to the soil—​in agriculture, herding, or hunting—​were understood by them as property was an issue to be decided by the land-​appropriating state. International law considerations benefiting the property rights of natives, such as those recognized in questions of state succession in the liberal age favouring property rights to land and acquired wealth, did not exist on colonial soil. 71

Such ideas were to certainly inform the approach adopted by colonizing powers in relation to their liability for foreign debt,72 and was to inform also sundry other cases relating to the acquisition of title to property,73 liability for torts,74 and led to a momentary distinction being developed between the annexation and the cession of territory75 (in which ‘annexation’ was to be associated with the appropriation of non-​ European soil, and ‘cession’ associated with that of European soil).76 The doctrine of acquired rights, in other words, was inflected with the engrained supposition that the only rights to be given protection were the ‘rights of occupant’, as Fanon was to put it. If the doctrine of acquired rights found its negation in the annexation of non-​ European soil, it was nevertheless revivified within Europe the aftermath of the First World war having been incorporated as an operative principle in a number of the treaties of Peace, including the (abortive) Treaty of Sèvres (arts 311–​12), the Treaty of Lausanne (Protocol XII, art 9),77 the Treaty of Versailles (arts 297–​98),78 71 Schmitt (n 55) 198. 72 See Feilchenfeld (n 70) 321. 73 In Re Southern Rhodesia [1918] AC 211. 74 Robert E Brown (U.S.) v Great Britain [1923] ILR 66. 75 See, eg, Rivier (n 61) 438. 76 See Keith (n 61); Cecil Hurst, ‘State Succession in Matters of Tort’ (1924) 5 British Year Book of International Law 163. 77 |See Mavrommatis Palestine Concessions (Greece v U.K.) [1925] PCIJ (hereafter Mavrommatis Palestine Concessions (Greece v U.K.)) Series A, No. 2 & 5; Case of the Readaptation of the Mavrommatis Jerusalem Concessions (Greece v Britain) [1927] PCIJ Series A No 11; Lighthouses Case between France and Greece (France v Greece) [1934] PCIJ (hereafter Lighthouses Case between France and Greece (France v Greece)) Series A/​B No. 62; Lighthouses in Crete and Samos Case (Greece v France) [1937] PCIJ Series A/​B, No. 71. 78 German Reparations Case (n 26) 479.

Colonial Fragments  115 the Geneva Convention of 1922 (art 6), as well as being included in a number of the Mandate agreements. Those provisions led the Permanent Court in both the German Settlers79 and the Certain German Interests Case80 to declare it to be a ‘general principle of law’81 and encouraged it also to uphold, in several other cases, the principle of succession to concessionary contracts.82 This was quickly picked up more broadly leading McNair to proclaim it to be a general principle of law,83 and Lauterpacht to endorse it as a central pillar in the emergent law of state succession.84 By the time, then, at which the International Law Commission (ILC) was to survey the state of existing international law in 1949, the voices of sceptics such as Keith and Cavaglieri were crowded out in the apparent, newly found, consensus.85 One notable feature of the doctrine that was to emerge in the interwar years, however, was the way in which it had become increasingly intertwined with the more general question of state responsibility for injury to aliens.86 The backdrop to this, inevitably, was the emergent practice, originating in Mexico and the Soviet Union, of widespread nationalization (a practice which was to become more generalized in the building of welfare states in Europe) but which posed, in the process, questions both as to the conditions under which a power to expropriate property might be exercised and as to the level of compensation that might be payable. Concession agreements were often at the heart of that practice—​agricultural land in Romania, oil in Mexico—​and the principle of acquired rights came into prominence as a doctrine that provided the grounds for limiting the ability of states to legislate away rights formerly granted to aliens. At this point, its function was no longer simply one of determining the basis for the recognition of rights acquired under foreign law87 or of specifying the obligations incumbent upon successor states, but one that was expressive of a more general obligation not to arbitrarily interfere in ‘patrimonial rights of alien private individuals’.88 79 Settlers of German Origin in Poland (Advisory Opinion) [1923] PCIJ Series B, No. 6, 15–​36. 80 Case concerning certain German interests in Polish Upper Silesia (Germany v Poland) [1925] PCIJ Series A, No. 7, 42. See also Oscar Chinn Case (Britain v Belgium) [1934] PCIJ Series A/​B, No. 63, 65, 88. 81 See also Niederstrasser v the Polish State (1932) (Decisions of Upper Silesian Arbitral Tribunal) AD vol II 156, 667; Romania v Germany (Goldenberg & Sons v Germany) [1928] RIAA 909; Jablonsky v German Reich [1935-​1937] Annual Digest, Case No 42; Sopron Köszeg Local Railway Company Arbitration [1929–​1930] Annual Digest, Case No 34. 82 See, eg, Mavrommatis Palestine Concessions (Greece v U.K.) (n 77); Lighthouses Case between France and Greece (France v Greece) (n 77). 83 McNair (n 20) 16–​18. 84 Hersch Lauterpacht, Private Law Sources and Analogies of International Law:  With Special Reference to International Arbitration (Longmans, Green & Company 1927) 129–​30. 85 There were clearly residual voices of opposition. See, eg, Kaeckenbeeck (n 54) 14, 17. 86 For an account of the emergence of the latter see Edwin M Borchard, ‘Theoretical Aspects of the International Responsibility of States’ (1929) 1 Zeitschrift für ausländisches öffentliches Recht und Völkerrecht 223. 87 The doctrine of acquired rights, however, had largely been discarded as a key organizing principle in private international law by the 1950s. See RD Carswell, ‘The Doctrine of Vested Rights in Private International Law’ (1959) 8 International and Comparative Law Quarterly 268. 88 See Francisco García-​Amador, Louis Sohn and Richard Baxter, Recent Codification of the Law of State Responsibility for Injuries to Aliens (Springer 1974) 40.

116  Matthew Craven

IV.  Acquired rights and decolonization Whatever the cautions associated with the doctrine of acquired rights when applied in relation to concessionary contracts in the early part of the twentieth century, the doctrine itself was to be enthusiastically embraced by scholars in the West as a doctrine that would have considerable salience in the emergent practice of decolonization.89 When called upon to advise the ILC as to what topics it should prioritize for purposes of codification, Lauterpacht suggested, in light of India’s and Pakistan’s newly acquired independence, that one of those should be the question of state succession. He went on to suggest, furthermore, that the centrepiece of that work should be the doctrine of acquired rights90 given that it had been widely accepted (even if, he admitted, there was work to be done in determining the extent of its application to various categories of private rights such as ‘those ground in the public debt, in concessionary contracts, in relations of government service, and the like’).91 The first person to answer the call was not the ILC (which only turned to the matter in 1962) but Lauterpacht’s student, DP O’Connell, who, in the following year, published an article in the British Yearbook of International Law where he sought to apply the doctrine of acquired rights to the question of the survival of concession agreements in case of state succession.92 O’Connell was not entirely candid as to why he regarded the question to be important, but by the time at which he was writing, calls for the termination, re-​negotiation, or straightforward expropriation of historic concession agreements were widespread, and had been picked up by various independence movements, such as those in Burma and Indonesia.93 And one may sense that O’Connell was seeking to develop the intellectual groundwork for those within the Metropole who would be addressing such issues in coming years. In that article O’Connell developed the argument that, while a concessionary contract does not per se survive a change in sovereignty (and hence a successor state would not be automatically ‘subrogated in the rights and duties which it created’) the concessionaire would, however, retain ‘an equitable interest in the money which he has invested and the labour he has expended’. That interest, 89 See generally, McNair (n 20)  16–​ 18; Rousseau (n 60)  901–​ 06; Alfred Verdross, ‘Règles internationales concernant le traitement des étrangers’ (1931) 37 Recueil des Cours de l’Académie de Droit International de La Haye 359; Makarov (n 60). 90 Secretary General, ‘Survey of International Law in Relation to the Work of Codification of the International Law Commission: Preparatory work within the purview of article 18, paragraph 1, of the International Law Commission’ (New York 10 February 1949) UN Doc A/​CN.4/​1/​Rev.1, 28–​29. 91 ibid. 92 O’Connell, ‘Economic Concessions’ (n 24) 93. 93 On Indonesian nationalization, see Martin Domke, ‘Indonesian Nationalization Measures Before Foreign Courts’ (1960) 54 American Journal of International Law 305; Hans W Baade, ‘Indonesian Nationalization Measures Before Foreign Courts: A Reply’ (1960) 54 American Journal of International Law 801.

Colonial Fragments  117 furthermore, ‘constitutes an acquired right which the successor state is obliged by international law to respect’.94 The consequence of this was that the successor state would have the option of either subrogating itself into the concessionary contract by novation, or, alternatively, expropriating the concession (in whole or part) with the payment of equitable compensation.95 While we have seen that O’Connell could rely upon the decisions of various courts and tribunals in the interwar years to underpin this argument for the existence of an obligation to respect acquired rights, most of the article was concerned with a constructive reinterpretation of the somewhat more inconsistent practice of the pre-​war years with that conclusion in mind. 96 It was only later in his book of 1956 that O’Connell came to spell out in more detail the underlying rationale for his thesis. His argument ran as follows: in any case of state succession there must be some ‘legal continuity bridging the gap created by change of sovereignty’,97 and that is not because the successor has ‘willed’ the continuance of law, nor indeed, as a consequence of a rule of international law, but in virtue of a ‘principle of philosophy without which human society would fall into anarchy’.98 If the law survives, so do legal rights (with the exception of those that are ‘political in character’). The successor state, however, is competent like any other to abrogate or modify such rights by legislative act, but if it chooses to abrogate the vested rights of foreign nationals, it could only do so subject to the payment of full compensation.99 As regards state contracts, while the contract itself could not survive, the equitable interest does. He explains: A man who invests capital and labour in the construction of works of profit and value to a State acquires an equity in that investment that is not destroyed by change of sovereignty. If there were no security of investment, there would be no investment; and a universal refusal to recognize these equities would be destructive of one of the essential economic bases of modern State and international organization. If international law prescribes an obligation on a State to respect investment of foreign nationals there is no theoretical objection to assuming a similar obligation on the part of its successor.100

94 O’Connell, ‘Economic Concessions’ (n 24) 124. 95 The grounds for which were based upon the concept of unjust enrichment, see ibid 121. O’Connell was later to suggest that compensation should include damnum emergens and lucrum cessans, David P O’Connell, ‘Independence and Problems of State Succession’ in William V O’Brien (ed), The New Nations in International Law and Diplomacy (Stevens 1965) 28. 96 O’Connell, ‘Economic Concessions’ (n 24) 109. 97 David P O’Connell, The Law of State Succession (CUP 1956) (hereafter O’Connell, State Succession) 267. 98 David P O’Connell, ‘Recent Problems of State Succession in Relation to New States’ (1970) 130/​II Recueil des Cours de l’Académie de Droit International de La Haye 127. 99 O’Connell, State Succession (n 97) 267–​68. 100 ibid.

118  Matthew Craven It is at this point that O’Connell’s scheme becomes transparent. The key to the whole field, as he saw it, was the securing of ‘equity’ and the prohibition of unjust enrichment. The timeless quality of his principle of philosophy undergirding legal continuity was thus supplemented by a contingent, ‘modern’, economic rationality that underscored the protection of foreign investments through the medium of a surviving equitable interest. The clear thrust of O’Connell’s argument here was to forge an analogy between the obligations of a newly independent state in respect of concessionary contracts, and those that applied more generally in relation to the treatment of concessions owned by foreign nationals.101 And it was that analogy that led him to import into the legal regime governing decolonization the corpus of doctrine relating to the protection of foreign investments (and specifically the obligation to compensate foreign investors upon expropriation of their interests). Quite apart from the fact that the underpinnings of O’Connell’s analysis was to achieve precisely that which was denied by the ICJ in the Anglo-​Iranian Oil Company Case102—​namely the effective ‘internationalization’ of the concessionary contract103—​it may be asked, more pertinently, whether the analogy was really an appropriate one? Were colonial concession holders really ‘foreign investors’ when operating under the umbrella of colonial authority? Was it always to be assumed that their ‘investments’ were to the benefit of the territory concerned such as to give rise to an equitable interest on the part of the concession holders? Would it really make sense to suggest that a former colonial power should be entitled to assert diplomatic protection in order to protect the legal interests of a concessionaire that it, the colonial power, had granted in the first place? Was it appropriate to conceptualize as equivalent the act of a state in terminating a concession agreement to which it was party with that of a new state in determining the political and economic conditions of its own formation?

V.  From concession to foreign investment—​the legal re-​ordering of economic relations As much as O’Connell worked with an imaginary that equated colonial concessions with foreign investments, it was clear that in the following years, whether as 101 This is made apparent in his commentary on the Anglo-​Iranian Oil Company case. See O’Connell, ‘Critique of the Iranian Oil Litigation’ (n 26) 270–​71. 102 Anglo-​Iranian Oil Co (Preliminary Objection, Judgment) (n 27). 103 O’Connell’s position, here, was informed by two contested propositions: first, that adequate compensation pre-​conditioned any right to expropriate (ie, that it functioned not so much as a remedy as a limitation on the sovereign right to expropriate); secondly, that the right to compensation was enjoyed by the foreign concession holder, rather than by the state of nationality. His position on both scores paralleled that of Sohn and Baxter in their Harvard Draft Convention on the International Responsibility of States for Injuries to Aliens. See Louis B Sohn and RR Baxter, ‘Responsibility of States for Injuries to the Economic Interests of Aliens’ (1961) 55 American Journal of International Law 545.

Colonial Fragments  119 a consequence of treaty arrangements prior to independence or by way of constitutional enactment, the vast majority of pre-​existent concessions were continued uninterrupted after independence. Many were also subsequently the object of nationalization decrees104 leading, in some cases, to financial settlements that contributed to the further indebtedness of states emerging from colonial rule. What went unacknowledged, however, was the complex remapping of the architecture of concession agreements that was to accompany their ‘continuation’. Far from being ‘unaffected’ by decolonization (in the manner described by Justice Marshall in the Percheman case) concessions had to be conceptually reconfigured from top to bottom in order to remain in place. In the first place, in order for the concessions in question to come within the purview of international law at all, they would have to be invested with the character of ‘foreignness’ (in the sense that they would then be entitled to the vaunted ‘international minimum standard of treatment’). While it was certainly not unknown for concession agreements to be awarded to companies incorporated in territories other than that of the metropolitan state, in the vast majority of cases, the companies concerned were either registered and had their operations in the colony itself (albeit frequently as subsidiaries of metropolitan corporations), or alternatively were incorporated within the financial heartland of the Metropolitan state itself. In original guise, thus, most would merely have been ‘local’ investments for purposes of international law prior to independence governed solely by the terms of municipal law. After that moment, their foreign character would be dependent upon the subsequent arrangements governing the nationality of legal persons situated within the former colony—​and that would be determined by the respective terms of both the law of the metropole and the former colony itself. 105 While in cases of companies registered, or incorporated, within the metropole it might naturally have been assumed that they would automatically become ‘foreign’ in relation to their site of operations in virtue of the mere fact of independence—​and that the former metropolitan power would retain the right to seek protection of its interests under guise of the law of diplomatic protection. There was, however, no guarantee that such companies would continue to have legal personality within the legal order of the newly independent state. Only by avoidance of a requirement of local registration, then, could such corporations effectively secure their status as foreign investors after independence. Given that, in many cases, the main shareholding interests tended to be located within the metropole, the Colonial powers thus routinely either sought to extract guarantees from the new states prior to 104 Eg, Indonesia, Burma, Ghana, Nigeria, Democratic Republic of Congo. 105 For a fairly inconclusive review of the nationality of legal entities in case of succession, see Vaclav Mikulka, ‘Second report on State Succession and its impact on the nationality of natural and legal persons, Succession of States with respect to nationality/​Nationality in relation to the succession of States’ UN Doc A/​CN.4/​474 and Corr. 1 & 2 (1996-​II/​1) Yearbook of the International Law Commission, 147–​48.

120  Matthew Craven independence to protect the interests under concession agreements, or superintended the ‘relocation’ of the centre of operations of the corporations concerned back to the metropole prior to independence.106 In the second place, there had to be a subtle interpretive reconfiguration of the concession agreement itself. Whereas, as we have seen, it was widely conceived that concession agreements assumed a hybrid form—​part public, part private; part political, part economic. For them to assume the form of a foreign ‘investment’ as opposed to part of the apparatus of colonial rule, then, their public/​political dimensions had to be imaginatively excised, and part of that process was to construe all grants, privileges, powers, and responsibilities that had previously been enjoyed by concessionaires—​which extended, in some cases, to a right to acquire and colonize land, to extract revenues, or to police and enforce the rule of law—​as essentially ‘commercial’ or ‘private’ interests, irrespective of their content.107 In the same measure, the concessionaires were to be definitively cast as ‘private’ agencies—​ mere corporations—​rather than armatures of colonial authority.108 Through this imaginative reinterpretation then, concession agreements themselves were then given a definitively new form—​not as hybrid legal instruments, but simply as ‘state contracts’.109 In the third place, as O’Connell himself intimated, in order for concession agreements to survive, a necessary first step was for them to be legally extinguished.110 The importance of this was to both displace any responsibility on the part of the metropolitan state for performance, and to preclude the possibility that the continuation of the concessions would be a matter of choice on the part of the newly decolonized state. The problem, here, was not that one the authors of the original contract had ‘disappeared’ so much as that the metropolitan state would no longer be in a position to guarantee its performance (bringing into play the doctrine of ‘frustration’). An obvious response to this might then have been to suggest that the effective unilateral termination of the contract on the part of the metropolitan

106 Eg, Belgian Law of 17 June 1960, which purported to move the headquarters of the Compagnie du Katanga to Brussels. See ‘Explanatory Statement’ to Decree-​Law of November 29, 1964 (Democratic Republic of the Congo) (1965) 4 ILM 232, 234–​35. More generally, Nkrumah (n 5); Wolf Radmann, ‘The Nationalization of Zaire’s Copper: From Union Minière to Gecamines’ (1978) 25 Africa Today 25. 107 For example, while concession contracts often ‘impose obligations of a semi-​political character’, they are ‘not substantially different from ordinary contracts’. See García-​Amador (n 45) 25, para 101. See also McNair (n 20) 10. 108 See, eg, Schwebel’s account of the Watercourses in Katanga case in which, having noted that the rights of the Union Miniere ‘were so extensive as to partake of quasi-​governmental powers akin to those accorded the great trading companies of an earlier concessions era’, he was to go on to assert that ‘the Company was clearly a company and the State clearly a State’. Gillis J Wetter and Stephen M Schwebel, ‘Some Little-​Known Cases on Concessions’ (1964) 40 British Year Book of International Law 183, 193. 109 See, eg, FA Mann, ‘State Contracts and State Responsibility’ (1960) 54 American Journal of International Law 572; Jennings (n 21) 161. 110 See JG Starke, Introduction to International Law (5th edn, Butterworths 1963) 272; Robert Delson, ‘Comments on State Succession’ (1966) 60 Proceedings of the American Society of International Law at its Annual Meeting 111, 112.

Colonial Fragments  121 power (by way of relinquishing its claim to administer the territory concerned) gave rise to an unliquidated debt on its part for which it (the metropolitan power) would be primarily responsible (unless, and to the extent that, it was ‘localized’ and thereby ‘passed’ to the successor).111 Perhaps unsurprisingly, this was not an option widely canvassed. The alternative, furthermore, that it remained open for the successor state to step into the shoes of the metropolitan state for purposes of continuing the contract was equally unappealing. To admit as much would be to suggest that the fate of concessionary contracts would depend entirely upon the willingness of the latter to recognize the contracts as remaining in force, and that there would be no obligation to compensate the ‘investor’ if the undertaking were to be appropriated by the agencies of the new state. The advantage, then, of pronouncing the contract to have ‘lapsed’, as O’Connell was to suggest, was that rights and interests in question could be detached from the agreement itself, and presented as independent juridical/​factual datum—​or, in O’Connell’s formulation, as ‘equitable interests’—​the denial of which would lead to an unjust enrichment on the part of the state. And in his view, it was the threat of unjust enrichment that underpinned the obligation of novation/​compensation. This formulation—​which appeared to involve the subtle reconceptualization of contractual interests as beneficial interests—​was dependent, however, upon a particular way of accounting for that interest. In O’Connell’s account, the existence of such an equitable interest would be determined by the overall value of the investment concerned, and, in turn, that value would be determined by reference to the level of compensation putatively required in case of its expropriation.112 So, as he was to conclude, a refusal to recognize a pre-​existent concessionary interest on the part of a successor state would require compensation for ‘the amount of capital and the value of the labour expended on the concession’ or ‘ . . . the lowest market value of the works immediately anterior to the expropriation’.113 Two very subtle analytical moves are put in place here. To begin with, in order to identify the very existence of a beneficial interest, O’Connell has resort to the imagined level of compensation that would be payable as a consequence of an act of expropriation. He draws, in other words, a factual inference as to the existence of a beneficial interest from a normative criterion for compensation, and in the process, his argument becomes almost irreducible circular—​a legal interest exists because compensation would be payable if that legal interest were to exist. His conclusion, in other words, is manufactured by being embedded in the chain of reasoning as an imagined predicate. In the second place, the evaluative framework he employs is one that shares the orientation of the Hull formula (which was incorporated into the doctrine of

111

See, eg, Manila Railway Co Claim, Magoon (n 64) 177. See Delson (n 110) 112–​13. 113 O’Connell, State Succession (n 97) 277. 112

122  Matthew Craven unjust enrichment by its early proponents114). The principal concern, there, being to evaluate the equities on one side alone—​by reference to what the concessionaires ‘invested’, or by way of calculation of the present value of the investment as determined by current assets and future (projected) profits. What this entirely removes from view is the extent to which the concessionaires might themselves have benefitted from the undertaking in question—​it focuses on inputs, not profits, dividends or repatriated capital. The point here is not that the concessionaire might have drawn ‘excess profits’ from its investment at the expense of the host state, but that in order to determine whether or not a newly independent state would be ‘unjustly enriched’ as a consequence of its refusal to continue a concessionary contract would seem to require as much attention being paid to what had been extracted (oils, minerals, etc.) as to what had been invested. In that respect, O’Connell’s apparent assumption that every concessionary contract gave rise to an equitable interest on the part of the investor was somewhat at odds with the historical role of concessionary interests within the colony, particularly given the suggestion that, in some cases, the companies concerned had engaged in massive withdrawals of capital from the colonies prior to independence.115

VI. Conclusion By the time at which the ILC was to come to draft articles on state succession and address, in the process, the question of concessionary contracts, most of the former colonies had already gained their independence. The assault launched by Mohammed Bedjaoui against the doctrine of acquired rights in his second report had, as a consequence, a certain sense of futility. As much as he managed to wrest the ILC away from the temptation to codify the doctrine of acquired rights into the draft Vienna Convention on State Succession in Respect of Property, Archives and Debt, it was all too late to have any real significance in shaping the pattern of decolonization itself. In practice, the vast majority of concession agreements appear to have been continued in force either by way of agreement prior to independence116 or as a consequence of constitutional provisions guaranteeing respect for existing rights in property. It had, indeed, been rare for any incoming authorities to recognize that there was a moment, prior to independence, in which much more ground could be made in renegotiating the terms of concessionary contracts—​that the protections they would later be afforded as ‘foreign investments’ were not yet available, 114 See Lena Goldfields Arbitration (Lena Goldfields Ltd. v USSR) [1930] ILR 3; McNair (n 20). 115 Nkrumah (n 5) 219. 116 See, eg, Évian Accords. In return for French recognition of Algerian sovereignty, the new state would recognize the acquired rights of the concessionary companies that had established the infrastructure for oil exploitation. Under the terms, then, of the Évian agreements of 19 March 1962, Algeria was to acquire sovereignty over the territory, including the Sahara. See ‘Algeria: France-​Algeria Independence Agreements (Évian Agreements)’ (1962) 1 ILM 214, ch II, A, I. All acquired rights were

Colonial Fragments  123 that headway could be made in accounting for resources already extracted, and that the arguments in favour of the sanctity of the acquired rights of concession holders were not beyond effective scrutiny.117 All of this, however, stands as testament to the extraordinary effectiveness of the idea that what was to be obtained at the moment of decolonization was ‘public power’, and that all ‘private’ relations of property and contract should remain ‘unaffected’ by the transition to independence. That this was to become the default assumption was itself partly a consequence of the instantiation within the colony of a set of relations of power, authority, and ownership in which concessions themselves would serve as vital sources of income for the new regimes. It was also a consequence of the subtle, imaginative re-​configuration of concession agreements into private ‘foreign investments’ whose sanctity was, prospectively, to be guaranteed by international law. The subsequent ‘battles’ over permanent sovereignty, the right to nationalize, or the requisite standard of treatment of foreign investments, thus, were all battles that took place on ground that had already been largely conceded, and in terms that barely touched upon the historic role such ‘investments’ had in advancing and deepening colonial rule.

to be respected, see ‘Declaration of Principles Concerning Economic and Financial Cooperation’, in ‘Agreements relating to Algerian Independence’ (n 116) 224, Title IV, article 12 (‘Algeria will ensure without discrimination the free and peaceful enjoyment of patrimonial rights acquired on its territory before self-​determination. No one will be deprived of these rights without fair compensation previously agreed upon.’). Rights ‘attached to mining titles granted by France’ in application of the Petroleum Code were to be respected and ‘preference’ would be given under a cooperation agreement to French companies in respect of the granting of new mining titles (‘General Declaration’, ‘Agreements relating to Algerian Independence’ (n 116) ch II, B). 117 O’Connell observes that ‘[t]‌here is very little material collected on the treatment accorded contractors by the new governments, but one may take a fairly accurate guess that the discontinuance thought of has not even crossed the minds of either governmental officials or the contractors themselves in 999 cases out of 1000’; see O’Connell, ‘Economic Concessions’ (n 24) 27. The one notable exception here concerns the termination of the concession of the British South Africa Company’s concession in Northern Rhodesia shortly before Zambian Independence in 1964. See Peter Slinn, ‘Commercial Concessions and Politics during the Colonial Period: The Role of the British South Africa Company in Northern Rhodesia 1890–​1964’ (1971) 70 African Affairs 365, 378–​84.

5

Acquired Rights and State Succession The Rise and Fall of the Third World in the International Law Commission Anna Brunner

I.  Introduction Already at the climax of decolonization in the early 1960s, the idea of post-​ colonialism1 developed and an initial form of post-​colonial discourse spread all over the discipline of international law, namely in the branches of human rights, international trade and state succession. The right of state succession was of crucial importance to international lawyers in the new states as a means to get rid of the established (post-​)colonial system and advance their ‘global-​solidary project’2 of a New International Economic Order (NIEO). They argued that the new states should have the power to ‘pick and choose’ which rules of the established international system corresponded to their needs and were accordingly acceptable to them, while other rules were not. In contrast, traditional Western scholars favoured the theory of continuity in the law of state succession. Along these battle lines, the International Law Commission (ILC) was occupied by issues of state succession for years. Against strong, mainly Western opposition in the ILC and at diplomatic conferences, the third world largely pushed through the application of the clean slate principle for former colonies in the two new state succession conventions. The most controversial topic in this regard was the question of so-​called ‘acquired rights’. Because of its far-​reaching economic implications, the fate of rights acquired by foreign companies through colonial concession regimes was vital to scholars in the new states. 1 See María do Mar Castro Varela and Nikita Dhawan, Postkoloniale Theorie:  Eine kritische Einführung (Transcript 2005); Robert Young, White Mythologies:  Writing History and the West (Routledge 1990); Robert Young, Colonial Desire:  Hybridity in Theory Culture and Race (Routledge 1995); Patrick Williams and Laura Chrisman (eds), Colonial Discourse and Post Colonial Theory: A Reader (Columbia University Press 1994) 66, 84; Bill Ashcroft, Gareth Griffiths and Helen Tiffin (eds), The Post-​Colonial Studies Reader (2nd edn, Routledge Taylor & Francis Group 2006); Patrick Williams and Laura Chrisman, Colonial Discourse and Post-​Colonial Theory:  A Reader (Columbia University Press 1994). 2 See the author’s doctoral thesis published under her maiden name Anna Krueger, Die Bindung der Dritten Welt an das postkoloniale Völkerrecht: Die Völkerrechtskommission das Recht der Verträge und das Recht der Staatennachfolge in der Dekolonialisierung (Springer 2018) ch 4. Anna Brunner, Acquired Rights and State Succession In: The Battle for International Law: South-North Perspectives on the Decolonization Era. Edited by: Jochen von Bernstorff and Philipp Dann, Oxford University Press (2019). © The Several Contributors. DOI: 10.1093/oso/9780198849636.003.0006

Acquired Rights and State Succession  125 In this respect, the debate was shaped by recurrence to the principle of permanent sovereignty of natural resources (PSNR). Taking a closer look at ILC debates concerning the question of acquired rights, one might recognize the rise and fall of post-​colonial international law discourse in the second half of twentieth century. Even though the third world had mobilized the United Nations General Assembly (UNGA) and the ILC for two decades to gain leeway to better control and regulate foreign investors, in the 1980s, legal developments led to more protection of investors against public regulation.

II.  Continuity or clean slate? State succession as post-​colonial topic After decolonization, the number of newly independent states grew remarkably in the 1960s, former colonies soon constituted the majority of member states in the United Nations (UN). Directly linked to battle lines during the Cold War, the third world gained importance as a global actor between East and West, and the world started to focus on the new states’ political and economic claims and related topics in international law. The main question was how international law had been shaped by colonialism and how it now had to be changed. After winning the struggle for national independence, many new States were challenged by massive economic problems which, according to dependency theory,3 resulted from colonialism. On the outside, they were confronted with an international legal order that had developed in times of colonialism without the participation of the former colonies.4 International lawyers in the former colonies were critical of the established international legal order, which they viewed as a European product.5 For the Indian international lawyer Ram Prakash Anand, for example, international law was shaped by the social context of colonialism in which it had developed and did not serve the needs of the newly independent states: The present body of international law is, therefore, naturally affected by the power interests of the last and the early part of the present century and is to a great extent a legacy of the age of colonialism and imperialism. This law was meant to serve the interests of a limited number of powerful states and was 3 Giorgio Secondi (ed), The Development Economics Reader (Routledge 2008) 58–​64. 4 Taslim O Elias, Africa and the Development of International Law (Sijthoff 1972) 21. 5 Tirthankar Roy, ‘Is the Law of Responsibility of States for Injuries to Aliens a Part of Universal International Law?’ (1961) 55 American Journal of International Law 863, 865; Georges Abi-​Saab, ‘The Newly Independent States and the Rules of International Law: An Outline’ (1962) 8 Howard Law Journal 95, 99; Francisco García-​Amador, ‘The Proposed New International Economic Order: A New Approach to the Law Governing Nationalization and Compensation’ (1980) 12 Lawyer of The Americas 1, 5 et seq (hereafter García-​Amador, ‘Economic Order’); Jorge Castañeda, ‘The Underdeveloped Nations and the Development of International Law’ (1961) 15 International Organization 33.

126  Anna Brunner supposed to be applicable between themselves in their relations with each other. The vast majority of peoples had neither any voice nor any right and were meant to be exploited and, if necessary, colonized to serve the interests of their masters.6

The Algerian international legal activist Mohammed Bedjaoui was even more critical of the established international order, which he viewed as a means for economic and political subjugation: The historical and political reasons for the present disorder can be mainly expressed in terms of imperialism, colonialism and neo-​ colonialism. Dependence, exploitation, the looting of the resources of the Third World, and the introduction of zones of influence, have marked international relations with ‘organized’ or ‘institutionalized’ disorder. The cruel, inhuman law of maximum profit has finally succeeded in establishing disorder, with the Faustian power of multinational firms, the gigantism of military-​industrial complexes, and the ecological disaster.7

International lawyers in the third world considered the established international order to be colonial in nature. In many sectors, for example, international economic law, this order was therefore not acceptable to the new States. However, international lawyers in the third world did not turn their back on international law, which the new States found a useful instrument to protect their newly won independence and to bring their demands to the attention of the industrial states. Instead, they believed in what might be called their global solidary project: They placed their hope in the UN system and tried to change international law from within, aiming for a world order oriented towards justice, solidarity, development, and wealth for all as common goals of the ‘international community’,8 resulting in the establishment of a NIEO. From their point of view, international law had to be changed in accordance with the needs of new States. The logical starting point for such a demand within the traditional framework of international law was the topic of state succession, in which changes in sovereignty had been dealt with. Traditionally, theorists favoured universal succession of a new State in the rights of duties of its predecessor and continuity of international

6 Ram P Anand, New States and International Law (Vikas 1972) 114. 7 Mohammed Bedjaoui, Towards a New International Economic Order (Holmes Meier 1979) 20 (hereafter Bedjaoui, Towards a New NIEO). 8 Anand (n 6) 86, 101; AA Fatouros, ‘International Law and the Third World’ (1964) 50 Virginia Law Review 783, 786; Francisco García-​Amador, ‘Current Attempts to Revise International Law: A Comparative Analysis’ (1983) 77 American Journal of International Law 286, 294; Bedjaoui, Towards a New NIEO (n 7) 196; Daniel P O’Connell, ‘Recent Problems of State Succession in Relation to New States’ (1970) 130/​II Recueil des Cours de l’Académie de Droit International de La Haye 95.

Acquired Rights and State Succession  127 relations.9 This view was confronted with the new states’ claim ‘to start with a tabula rasa, a clean slate’.10 According to the predominant Western view, if the newly independent states wanted to play the game of international law, they had to accept its rules. Some Western jurists argued that when a new State comes into being and joins the international society, it implicitly consents to the rules of international law in existence at that moment.11 New states, it was said, could not, on the one hand, claim sovereign equality, a right stipulated by customary international law, and on the other hand, refuse to be bound by international law on that very basis: New States can hardly claim the privileges and faculties of States and yet repudiate the system from which these derive; yet this is precisely what the argument involves. It overlooks that a State, when it commences to exist as a State, does so in a structural context which gains its form from law, just as a child when born into a society becomes subjected to it by virtue of the order of being in which it is integrated.12

This traditional view seemed ultimately unfair to scholars from the third world because of the colonial legacies of established international law. They argued that the new States should have the power to ‘pick and choose’ which rules of the established international system corresponded to their needs, and which did not.13 Facing this disagreement, as well as the urgency of the question, the ILC decided to put the topic on its agenda, along with other topics that were pertinent in the context of decolonization, for example, subjects and sources of international law, recognition of states and governments, fundamental rights and duties of states, regime of the high seas and territorial waters, treatment of aliens, the law of treaties, and state responsibility.14 The new States placed great hope in the work of the ILC since this commission of experts seemed to be a platform for scholars from the third world to change international law from within in accordance with their global solidary project.15 It was 9 Matthew Maloney, ‘Succession of States in Respect of Treaties: The Vienna Convention of 1978’ (1979) 19 Virginia Journal of International Law 885, 886ff; Matthew Craven, The Decolonization of International Law: State Succession and the Law of Treaties (OUP 2007) 30ff. 10 Abi-​Saab (n 5)  95, 113; Prakash Sinha, ‘Perspective of the Newly Independent States on the Binding Quality of International Law’ (1965) 14 International and Comparative Law Quarterly 121, 126; Maloney (n 9) 885, 894. 11 Walther Schönborn, Staatensukzession (Kohlhammer 1913) 71ff; Hersch Lauterpacht, Oppenheim’s International Law: A Treatise, vol 1 (7th edn, Longmans, Green & Company 1948) 18, 19 (hereafter Lauterpacht, Oppenheim’s International Law); Hans-​Ernst Folz, ‘Zur Frage der Bindung Neuer Staaten an das Völkerrecht’ (1963) 2 Der Staat 319, 329ff. 12 Mary E O’Connell, ‘The Role of International Law’ (1966) 95 Daedalus 627, 636; Craven (n 9) 88. 13 Prakash Sinha, New Nations and the Law of Nations (Sijthoff Leyden 1967) 142. 14 International Law Commission (ILC), ‘Report of the International Law Commission on the Work of its first Session, 12 April 1949’, UN Doc A/​CN.4/​13 and Corr. 1-​3 (1974-​I), Yearbook of the International Law Commission 277, 281; Craven (n 9) 96. 15 Anand (n 6) 73ff; Elias (n 4) 24, 65.

128  Anna Brunner predictable that the ILC would put great emphasis on the special context of decolonization while discussing the topic of state succession, since the UNGA requested the ILC to adequately take into account the third world’s view in this regard.16 The ILC’s work on the topic of state succession finally resulted in two conventions: the Vienna Convention on Succession of States in respect of Treaties of 1978, and the Vienna Convention on Succession of States in respect of State Property, Archives and Debts (VCSSPAD) of 1983. The most controversial question in the context of state succession was the handling of acquired rights.

III.  History and concept of acquired rights While the notion of acquired rights lacks precision and has been interpreted in different ways, the focal question after decolonization was whether rights acquired by foreign investors—​because of concessions given by colonial masters with regard to their colonies—​should also be binding for the newly independent states.17 From the sixteenth century onwards, companies with limited jurisdiction from European countries had been an important vehicle of colonization.18 These companies gained concessions to use natural resources like oil or territorial rights, for example, the Suez canal.19 The foreign companies made remarkable investments to exploit their concessions, resulting in huge profits.20 The protection of these rights acquired by foreign companies was no original question of international law, but of the conflict of laws; nevertheless, it was treated in the context of the international law of state responsibility and of state succession.21 Until the twentieth century, most international lawyers claimed that acquired rights were not affected by changes of sovereignty.22 Expropriation of former companies by the host country was thought to be unlawful under the law of aliens, leading to compensation claims under the law of state responsibility.23 This absolute 16 See UNGA Res/​16/​1686 (18 December 1961)  UN Doc A/​Res/​1686(XVI); UNGA Res 1902 (XVIII) (18 November 1963) UN Doc A/​Res/​1902. 17 Christoph Ohler, ‘Concessions’ in Rüdiger Wolfrum (ed), Max Planck Encyclopedia of Public International Law (OUP 2013). 18 Mohammed Bedjaoui, ‘Second Report on Succession in Respect of Matters other than Treaties, Economic and Financial Acquired Rights and State Succession’ UN Doc A/​CN.4/​216/​Rev.1 (1969-​II) Yearbook of the International Law Commission, 69, 92 para 114 (hereafter Bedjaoui, ‘Second Report’). 19 Nico J Schrijver, Sovereignty over Natural Resources: Balancing Rights and Duties (CUP 1997) 34. 20 Anand (n 6) 23. 21 cf David P O’Connell, ‘Recent Problems of State Succession in Relation to New States’ (1970) 130/​ II Recueil des Cours de l’Académie de Droit International de La Haye 95, 135. 22 Hersch Lauterpacht, Private Law Sources and Analogies of International Law:  With Special Reference to International Arbitration (Longmans, Green & Company 1927) 125; Ernst Feilchenfeld, Public Debts and State Succession (Macmillan 1931) 396; see Antony Anghie, Imperialism, Sovereignty and the Making of International Law (CUP 2008) 213. 23 Franceso Francioni, ‘Compensation for Nationalisation of Foreign Property: The Borderline between Law and Equity’ (1975) 24 International and Comparative Law Quarterly 255, 259; David P O’Connell, The Law of State Succession (CUP 1956) 100 (hereafter O’Connell, State Succession).

Acquired Rights and State Succession  129 theory of the protection of acquired rights was later replaced by a more liberal theory allowing for expropriation under certain circumstances.24 However, there was disagreement about the standards an expropriation had to fulfil according to the law of aliens: Western jurists tended to claim an international minimum standard, according to which the expropriating state had to pay full compensation to the company.25 This was specified by the so-​called Hull formula, via which prompt, adequate, and effective compensation should be granted.26 On the other hand, Latin American states had taken an opposing view as early as the nineteenth century. According to the so-​called Calvo doctrine, nationals and aliens had to be treated equally, and the question of equal compensation was one of the national jurisdiction of the expropriating state, not of international law.27 After the Russian revolution, nationalization without compensation became a more frequent phenomenon,28 which also inspired international theory.29 Francioni wrote: Equity is in such doctrine identified with the principles of socialist justice; in that view, the suppression of private property, in so far as it implies a restitution of private wealth to the collectivity from which it had been arbitrarily taken, is an act of justice that does not entail any sort of reparation.30

For many third-​world countries, expropriation and nationalization became welcome means for a redistribution of wealth in their struggle for economic ‘development’. They used the notion of PSNR in order to enforce a right of expropriation without having to pay compensation, which they could not afford. The development of the PSNR illustrates the rise of post-​colonial discourse in international law. In the 1950s, PSNR was discussed in the context of human rights as an economic dimension of the right of self-​determination, resulting in the Common Article 1 para 2 of the International Covenant on Civil and Political Rights, and the International Covenant on Economic, Social and Cultural Rights.31 24 O’Connell, State Succession (n 23) 130. 25 Francioni (n 23) 255, 262; Maarten Muller, ‘Compensation for Nationalization: A North-​South Dialogue’ (1981) 19 Columbia Journal of Transnational Law 35, 36; Fritz Visser, ‘The Principle of Permanent Sovereignty over Natural Resources and the Nationalisation of Foreign Interests’ (1988) 21 Comparative and International Law Journal of South Africa 76, 80; Schrijver (n 19) 176ff. 26 Francioni (n 23) 255, 263. 27 García-​Amador, ‘Economic Order’ (n 5) 1. 28 Allan Kelly, ‘Nationalization: Effective Compensation and International Law’ (1964) 4 Virginia Journal of International Law, 97, 99; Francioni (n 23) 255, 266. 29 Charles de Visscher, Théories et Réalités en Droit International Public (Pedone 1953) 238; Arrigo Cavaglieri, ‘La Notion des Droits Acquis et son Application en Droit International Public’ (1931) 38 Revue générale de droit international public 206. 30 Francioni (n 23) 255, 268. 31 See Francisco García-​Amador, The Emerging International Law of Development: A New Dimension of International Economic Law (Oceana Publications 1990) 132; Azadon Tiewul, ‘The Evolution of the Doctrine of Permanent Sovereignty over Natural Resources’ (1978–​1981) 15 Ghana Law Journal 55, 63; James Hyde, ‘Permanent Sovereignty Over Natural Wealth and Resources’ (1956) 50 American Journal of International Law 854, 855; Visser (n 25) 76; García-​Amador, ‘Economic Order’ (n 5) 1, 21.

130  Anna Brunner In parallel, the new states used the UNGA to establish the PSNR as a new principle of international economic law, aiming to establish the right of peoples to freely use and exploit their natural wealth and resources as inherent in their sovereignty, corresponding to a right to expropriation without compensation. In the beginning, third-​world States tried to reach agreement with the West, leading to equivocal compromise resolutions in the UNGA that granted at least limited protection of acquired rights and established a duty to pay ‘appropriate compensation’ after expropriation ‘in accordance with international law’.32 In the 1970s, under growing pressure of UNCTAD, the new states pressed for progressive changes in the international law of investment protection against strong Western opposition.33 At this point in time, the UNGA resolutions only referred to possible, instead of obligatory, compensation in accordance with the national legislation of the expropriating State.34 The protection of acquired rights became an embattled concept, which, in the eyes of third-​world scholars, did not have a place in contemporary international law. The third world aimed to stipulate a right to expropriation without compensation. This development finally resulted in 1974 in the well-​known Declaration on the Establishment of a New International Economic Order and the Charter of Economic Rights and Duties of States, probably constituting the climax of post-​colonial discourse in international economic law.35

IV.  Acquired rights in the ILC The rise of a profound critique of the notion of acquired rights and its subsequent fall may best be understood by taking a closer look at the respective developments in the ILC.

32 UNGA Res 3171 (XXVIII) (17.12.1973) UN Doc A/​Res/​3171 (XXVIII). 33 Mohammed Bedjaoui, ‘Sixth Report on Succession of States in Respect of Matters other than Treaties, Draft Articles with Commentaries on Succession to Public Property’ UN Doc A/​CN.4/​ 267 (1973-​II) Yearbook of the International Law Commission, 3, 10, 24 (hereafter Bedjaoui, ‘Sixth Report’); Mohammed Bedjaoui, ‘Seventh Report on Succession of States in Respect of Matters other than Treaties’ UN Doc A/​CN.4/​282 (1974-​II) Yearbook of the International Law Commission. 34 ‘[ . . . ] affirms that the application of the principle of nationalization carried out by States, as an expression of their sovereignty in order to safeguard their natural resources, implies that each State is entitled to determine the amount of possible compensation and the mode of payment, and that any disputes which might arise should be settled in accordance with the national legislation of each State carrying out such measures [ . . . ]’; UNGA Res 3171 (XXVIII) (17.12.1973) UN Doc A/​Res/​3171 (XXVIII) para 3. 35 See Katja Gelinsky, Der Schutz des Eigentums gemäß Art. 1 des Ersten Zusatzprotokolls zur Europäischen Menschenrechtskonvention:  Eine Analyse der Rechtsprechung der Straßburger Organe (Duncker & Humblot 1996) 157; UNGA Res 3201 (S-​VI) (1 May 1974) UN Doc A/​Res/​3201 (S-​VI) principle 5; UNGA Res 29/​3281 (12 December 1974) UN Doc A/​Res/​29/​3281.

Acquired Rights and State Succession  131 Originally, the question of acquired rights was considered to belong to the right of state responsibility in a rather material sense.36 As competent Special Rapporteur on State Responsibility in the ILC, Francisco V.  García-​Amador propagated an international minimum standard of compensation for expropriation of acquired rights, regardless of the nationality of the affected individual, placing the question in the context of diplomatic protection for injuries to aliens.37 Already in this context, the ILC’s opinion on the topic of acquired rights was divided. Since such investment protection standards were highly disputed,38 Roberto Ago, García-​ Amador’s predecessor as Special Rapporteur, turned to a different approach to state responsibility, focusing on a secondary law matrix, thereby sidestepping the problem of acquired rights.39 Consequently, the Sub-​Committee on Succession of States and Governments took up the matter.40 The Sub-​Committee had decided to divide the right of state succession into three parts: in treaties, in sources other than treaties, and in international organizations.41 Sir Humphrey Waldock became Special Rapporteur for the first part, Mohammed Bedjaoui became Special Rapporteur for the second part, and the third part was postponed.42 Although the members of the Sub-​Committee were well aware of the controversy about acquired rights,43 they nevertheless decided to put it on their agenda because of the topic’s great importance, especially to the newly independent states.44 36 Todd Weiler, ‘A Historical Analysis of the Function of the Minimum Standard of Treatment in International Investment Law’ in Todd Weiler and Freya Baetens (eds), New Directions in International Economic Law: In Memoriam Thomas Wälde (Nijhoff 2011) 357. 37 Francisco García-​ Amador ‘International Responsibility, First Report’ UN Doc A/​ CN.4/​ 96 (1956-​ II) Yearbook of the International Law Commission 173; Francisco García-​ Amador ‘International Responsibility, Second Report’ UN Doc A/​CN.4/​106 (1957-​II) Yearbook of the International Law Commission 104; Francisco García-​Amador ‘International Responsibility, Third Report’ UN Doc A/​CN.4/​111 (1958-​II) Yearbook of the International Law Commission 47; Francisco García-​Amador ‘International Responsibility, Fourth Report’ UN Doc A/​CN.4/​119 (1959-​II) ILC-​Yearbook 1; Francisco García-​Amador ‘International Responsibility, Fifth Report’ UN Doc A/​CN.4/​125 (1960-​II) Yearbook of the International Law Commission 41; Francisco García-​Amador ‘International Responsibility, Sixth Report’ UN Doc A/​CN.4/​134 & ADD.l (1961-​II) Yearbook of the International Law Commission 1; Francisco García-​Amador, Louis Sohn and Richard Baxter, Recent Codification of the Law of State Responsibility for Injuries to Aliens (Springer 1974). 38 See, for example, Jimenez de Aréchaga, International Law Commission (ILC) ‘Report of the International Law Commission Covering the Work of its fifteenth Session, 6 May–​12 July 1963’ UN Doc Doc A/​5509 (1963-​II) Yearbook of the International Law Commission 237. 39 Roberto Ago, ‘First Report on State Responsibility’, UN Doc A/​ CN.4/​ 217/​ Add.2 (1969-​ II) Yearbook of the International Law Commission 125 para 5; James Crawford, ‘State Responsibility’ in Rüdiger Wolfrum (ed), Max Planck Encyclopedia of Public International Law, para 7 (OUP 2013). 40 Manfred Lachs, ‘Report by Mr. Manfred Lachs, Chairman of the Sub-​committee on Succession of States and Governments (Approved by the Sub-​Committee)’, UN Doc A/​CN.4/​160 and Corr.1 (1963-​ II) Yearbook of the International Law Commission 266; Shabtai Rosenne, in Lachs (n 41) 285, 288; Erik Castrén, in Lachs (n 41) 290, 292; Milan Bartoš, in Lachs (n 41) 293, 294. 41 Lachs (n 41) 260, 261 para 13. 42 International Law Commission (ILC), ‘Reports of the Commission to the General Assembly’, UN Doc A/​6309/​Rev. 1 (1966-​II) Yearbook of the International Law Commission 169, 368 para 39. 43 TO Elias, in Lachs (n 41) 282 para 3; Milan Bartoš, in Lachs (n 41) 293, 294. 44 Lachs (n 41) 260, 261 para 15.

132  Anna Brunner In 1968, Bedjaoui already had focused on the question of acquired rights in his first report as Special Rapporteur for the Succession of States in respect of matters other than treaties. In Bedjaoui’s view, the question whether new states were bound by concessions given by their predecessor state was of decisive importance to the economic development of the third world.45 Bedjaoui’s goal was to establish a norm of international law according to which states had the right to expropriate acquired rights without paying compensation, at least in the context of decolonization. He attached great value on the specific economic (that is to say, colonial) circumstances in which a concession was granted as well as on the expropriating state’s need to establish its own commercial policy while downgrading the question of the rights of foreign investors. Bedjaoui’s reasoning was clearly shaped by ideas originating from socialism and dependency theory.46 Contrary to former Special Rapporteurs, Bedjaoui was less concerned about evaluating different sources of international law concerning this topic, but rather wrote a pamphlet supporting the cause of the former colonies. Most ILC member reacted positively on Bedjaoui’s first report, but also quietly pointed out their surprise concerning the unusual methodology of the Special Rapporteurs.47 Concerning the substance of his report, Western ILC members especially stressed the importance to satisfy the rights dimension (particular property rights) of concessions.48 However, members from the third world welcomed Bedjaoui’s focus on decolonization.49 That being said, most members prioritized general economic and financial relations between the predecessor State and the successor State; the question of acquired rights should be deduced from the result of this general inquiry.50 Bedjaoui initially agreed to preliminary focus on ‘Succession of States in Economic and Financial Matters’ instead of concentrating on the question of acquired rights at the very beginning.51 45 Mohammed Bedjaoui, ‘First Report on Succession of States in Respect of Rights and Duties Resulting from Sources other than Treaties’, UN Doc A/​CN.4/​204 (1968-​II) Yearbook of the International Law Commission 94, 116 para 144ff. 46 Sundhya Pahuja, Decolonising International Law: Development, Economic Growth, and the Politics of Universality (CUP 2011) 125. 47 International Law Commission (ILC), ‘Summary Record of the 961st Meeting, Succession of States in Respect of Matters other than Treaties’, UN Doc A/​CN.4/​SR.961 (1968-​I), Yearbook of the International Law Commission 105 para 8 (hereafter ILC, ‘961st Meeting’); International Law Commission (ILC), ‘Summary Record of the 962nd Meeting, Succession of States in Respect of Matters other than Treaties’ UN Doc A/​CN.4/​SR.962 (1968-​I), Yearbook of the International Law Commission 111, 114 para 35 (hereafter ILC, ‘962nd Meeting’). 48 ILC, ‘961st Meeting’ (n 48) 105, 107 para 23, 109 para 56. 49 International Law Commission (ILC), ‘Summary Record of the 963rd meeting, Succession of States in Respect of Matters other than Treaties’, UN Doc A/​CN.4/​SR.963 (1968-​I), Yearbook of the International Law Commission 118, 120 para 19: ‘The international community intervened to prevent a de facto and necessarily provisional settlement—​usually the outcome of an attempt by the colonial Power to maintain its prerogatives—​from taking the place of a permanent solution of the problems of State succession. State succession in the context of decolonization therefore deserved special study.’ 50 ILC, ‘962nd Meeting’ (n 48) 111, 117 para 81. 51 International Law Commission (ILC), ‘Summary Record of the 965th Meeting’, UN Doc A/​CN.4/​ SR.965 (1968-​I -​), Yearbook of the International Law Commission 127, 130 para 36, 38.

Acquired Rights and State Succession  133 Despite this commitment, Bedjaoui named his 1969 Second Report ‘Economic and Financial Acquired Rights and State Succession’, in which he argued that he considered the question of acquired rights to be at the heart of all state succession problems and therefore wanted to reflect on it first.52 He argued passionately and at length against a duty to compensate in cases of expropriation after decolonization because of sociological, historical, economical, or juristic-​logical reasons. According to Bedjaoui, the very controversial views on the question of acquired rights resulted from its sociological underpinnings and the conflicting interests at stake,53 saying: Basically, these conflicts are nothing more than a reflection of the struggle which inevitably occurs, after every upheaval, between the old structures which resist with waning strength and the new structures which assert themselves with increasing vigour. At the end of this necessary transitional phase, which varies in length and is regulated by the intertemporal law and is the sum and the reflection of the contradictions between what is accepted and what is contested, a normalized period begins. This does not mean that ‘the fight is over, because there is no one left to fight’, but simply that society has assimilated the new norms and harmonized them into a new equilibrium. This situation will last until such time as it is once again disrupted by further normative upheavals, when the same doctrinal conflicts will break out anew. This is a problem as old as the world, constantly occurring and recurring, and it is always solved without the supporters of acquired rights having fully learnt the lesson that change is inevitable, because force of habit engenders a feeling of hostility towards everything new and because it is in the nature of things that novelty should arouse resistance for a time.54

Bedjaoui saw the concept of acquired rights as being reactionary per se, putting it in the context of liberalism: With the disappearance of the patrimonial State in the seventeenth century, a distinction began to be drawn between imperium, which was reserved for the liberal State, and dominium, which enabled individuals to exercise the right of property. When there was a change of sovereignty, imperium alone changed hands, while dominium remained undisturbed. The rights of individuals (dominium) constituted acquired rights. Traditional State succession involved only the substitution of one sovereign—​who was often a monarch—​for another and left the legal relationships between individuals intact. This trend was reinforced during the nineteenth century in Great Britain by the laissez-​faire doctrine of property

52

Bedjaoui, ‘Second Report’ (n 18) 71 para 3. ibid, 71 para 7. 54 ibid. 53

134  Anna Brunner and in the United States by the provisions of the Constitution relating to property rights. [ . . . ] Hence, if the doctrine of acquired rights is, as has been seen, inseparable from political liberalism, it may be expected a priori to be called in question again in an age and an environment where the liberalism which nurtured it is itself under attack. From a more general standpoint, it may be said that the political regime of a given community is linked to the private property regime in the territory which it controls, and the political upheavals which affect it automatically involve, sooner or later, new property arrangements. It is therefore not surprising that failure to respect acquired rights in cases either of succession or of non-​succession constitutes a fairly marked trend in modern times, which are characterized by the growing denial of the absolute nature of private property and by the possibility of creating other forms of ownership. His Holiness Paul VI stated in his encyclical Populorum Progressio that ‘private property does not constitute an absolute and unconditional right for anyone’.55

To Bedjaoui, liberalism was challenged by decolonization, and so was the concept of acquired rights: If the colonial system cannot operate without a hierarchical economic order, characterized by the predominance of the interests of the metropolitan country and of its nationals and by the existence of a structural imbalance between the colony and the metropolitan country, conversely decolonization can only be the restoration of egalitarian structures, which implies the rejection of certain economic situations resulting from the colonial regime. Thus, it is clear that decolonization and the renewal of acquired rights are contradictory. Either decolonization or acquired rights must be sacrificed. [ . . . ] The fundamental incompatibility between decolonization and acquired rights derives from the fact that the successor State is confronted with a choice, over which it cannot hesitate, between the possible equity which requires it to respect private rights and the real necessity which forces it to consider the public interest and national development. It was for no other reasons at bottom that the United Nations recognized the right of peoples to dispose of their natural resources and exploit them themselves, and exempted former colonies from any acquired right and from payment of any compensation.56

While ILC members from the second and third world applauded his report,57 Western members were massively affronted and criticized Bedjaoui vehemently,

55 ibid 73 para 14. 56 ibid 91 para 108. 57 International Law Commission (ILC), ‘Summary Record of the 1000th Meeting’, UN Doc A/​CN.4/​ SR.1000 (1969-​I-​) Yearbook of the International Law Commission 53, 56 para 25.

Acquired Rights and State Succession  135 and even personally.58 The American ILC member Richard D. Kearney described at length the ‘technical imperfections’, the ‘unsystematic approach’, and the ‘pure Marxist mythology’ from which he found the report to suffer.59 Kearney was also substantively opposed to Bedjaoui’s approach: That statement seemed to pay too much deference to legal formalism and too little to the basic principles which law was intended to serve. Law, after all, was not a mere abstraction, but was intended for the achievement of peace and harmony in human society. If the theory of acquired rights was regarded from that point of view, it was difficult to reach the bald conclusion that it was useless, since it undoubtedly did tend to promote stability, especially in the financial and economic spheres, and to encourage capital investment and technical assistance. It also avoided certain possible consequences that might result from a denial of the concept of acquired rights, such as the possibility of a resort to sanctions by a foreign State which had lost what it considered to be acquired rights. Foreign investment, after all, was an important element in the finances of many States, particularly in their balance-​of-​payments situation, so that any large-​scale nationalization without compensation might involve their interests either directly or indirectly.60

Quickly it became obvious that the ILC was not able to reach any agreement on the question of acquired rights. Most members favoured setting the topic aside and returning to the original plan to preliminarily focus on ‘Succession of States in Economic and Financial Matters’.61 While Bedjaoui raised concern that the urgent matter of acquired rights might be swept under the carpet,62 he also had to realize that he would not be able to establish an international right to expropriation without compensation. Bedjaoui’s following reports were much tamer, but he had changed his strategy. In line with the new position of the UNGA, he now aimed to establish that all questions concerning concessions and acquired rights fell within the national jurisdiction of the expropriating state, which would result in a new state’s right to expropriation without compensation. But to avoid another open conflict between ILC members, he tried to establish this principle in a less confrontational way:

58 ibid 57 59 para 17ff. 59 ibid. 60 International Law Commission (ILC), ‘Summary Record of the 1008th Meeting, Succession of States in Respect of Matters other than Treaties’, UN Doc A/​CN.4/​SR.1008 (1969-​I), Yearbook of the International Law Commission 90, 93 para 18. 61 See International Law Commission (ILC), ‘Summary Record of the 1005th Meeting, Succession of States in Respect of Matters other than Treaties’, UN Doc A/​CN.4/​SR.1005 (1969-​I-​), Yearbook of the International Law Commission 73, 75 para 21, 76 para 31. 62 ILC, ‘961st Meeting’ (n 48); International Law Commission (ILC), ‘Summary Record of the 1009th Meeting, Succession of States in Respect of Matters other than Treaties’, UN Doc A/​CN.4/​SR.1009 (1969-​I) Yearbook of the International Law Commission 95, 96 para 20ff.

136  Anna Brunner In his Sixth Report in 1973, Bedjaoui formulated an article concerning the right to grant concessions instead of a duty to protect concessions: Article 10. Rights in respect of the authority to grant concessions

1. For the purposes of the present article, the term ‘concession’ means the act whereby the State confers, in the territory within its national jurisdiction, on a private enterprise, a person in private law or another State, the management of a public service or the exploitation of a natural resource. 2. Irrespective of the type of succession of States, the successor State shall replace the predecessor State in its rights of ownership of all public property covered by a concession in the territory affected by the change of sovereignty. 3. The existence of devolution agreements regulating the treatment to be accorded to concessions shall not affect the right of eminent domain of the State over public property and natural resources in its territory.63





Bedjaoui explained that he did not aim to resume the debate on acquired rights, but merely to guarantee the rights of the successor state.64 In 1975, he put his position as follows: United Nations practice showed that for about fifteen years the General Assembly had been referring, in numerous resolutions, to ‘permanent sovereignty over natural resources’. That sovereignty might be defined as the use by the State of the sum total of its powers—​its ‘paramount competence’ (competence majeure)—​to regulate the status of natural resources. Why, then, speak of ‘permanent sovereignty over natural resources’? Resources were not an additional attribute of sovereignty, but an object, or subject-​matter, over which single and indivisible sovereignty was exercised. And yet the expression ‘sovereignty over resources’ was used, as though it referred to some particular kind of sovereignty. In fact, the word ‘sovereignty’ in that instance meant ‘ownership’ of natural resources, and the words ‘permanent sovereignty’ meant that such sovereignty was inalienable, although to say so might be thought redundant. [  .  .  .  ] The traditional conception of sovereignty, disembodied, formal and based on the rules of classical law, was giving way, together with the problem of natural resources, to a new conception based on the principle of national economic independence. That principle had been given a new and very important



63 64

Bedjaoui, ‘Sixth Report’ (n 34) 3, 10, 24. ibid 24 para 2ff.

Acquired Rights and State Succession  137 legal function and had thus been erected into a principle of modern public international law.65

Other ILC members felt provoked to ask Bedjaoui about the aim of his provision, since every state obviously had the right to grant concessions because of its sovereignty according to national law; therefore, the proposed article would be unnecessary.66 This was exactly the reaction Bedjaoui had hoped for, because without directly reanimating the question of acquired rights, he had gained consensus at least insofar as the right to grant concessions was generally considered to be a question of national law. In his opinion, the step from this point to a right to expropriation without compensation was comparatively smaller. However, even though the UN Conference on Succession of States in Respect of State Property, Archives and Debts adopted the VCSSPAD in 1983, it was done regardless of the strong opposition of many industrial states.67 The VCSSPAD should never come into force, and Bedjaoui’s efforts faded. According to Craven, one issue was ‘that the idea of decolonization was a radical or constitutive moment: a moment at which international lawyers were faced not only with the task of managing political changes on the “outside”, but of managing the decolonization of the legal imagination itself ’.68 Therefore, the whole debate, as well as the resulting VCSSPAD, focused too much on decolonization, ignoring the dimensions state succession could develop in a different context.69 In accordance with the Western conception, the question of acquired rights became specified by the law of aliens.70 In the 1980s, the demand for a NIEO and corresponding new international investment law standards (for example, concerning acquired rights) collapsed and were replaced by neoclassic, liberal development theory, which led to a system of bilateral investment treaties (BITs) protected according to the Hull formula and 65 International Law Commission (ILC), ‘Summary Record of the 1320th Meeting, Succession of States in Respect of Matters other than Treaties’, UN Doc UN Doc A/​CN.4/​SR.1320 (1975-​I) Yearbook of the International Law Commission 82, 87 para 40ff. 66 ibid para 46ff. 67 ‘In favour:  Algeria, Angola, Argentina, Brazil, Bulgaria, Byelorussian SSR, Chile, Costa Rica, Cuba, Czechoslovakia, Democratic Yemen, Ecuador, Egypt, Gabon, German Democratic Republic, Guatemala, Hungary, India, Indonesia, Iran, Islamic Republic of, Iraq, Jordan, Kenya, Kuwait, Lebanon, Libyan Arab Jamahiriya, Mali, Mexico, Morocco, Mozambique, Namibia, Nigeria, Pakistan, Panama, Peru, Philippines, Poland, Republic of Korea, Romania, Senegal, Suriname, Syrian Arab Republic, Thailand, Tunisia, Turkey, Ukrainian SSR, USSR, United Arab Emirates, Uruguay, Venezuela, Viet Nam, Yemen, Yugoslavia, Zaire. Against:  Belgium, Canada, France, Germany, Federal Republic of, Israel, Italy, Luxembourg, Netherlands, Switzerland, United Kingdom of Great Britain and Northern Ireland, United States of America. Abstaining:  Australia, Austria, Denmark, Finland, Greece, Ireland, Japan, Norway, Portugal, Spain, Sweden’, ‘Meeting Records’, United Nations Conference on Succession of States in Respect of State Property, Archives and Debts: Official Records, vol I (United Nations 1983) 31, para 62. 68 Craven (n 9) 5. 69 David P O’Connell, ‘Reflections on the State Succession Convention’ (1979) 39 Zeitschrift für ausländisches öffentliches Recht und Völkerrecht 725; Craven (n 9) 16. 70 cf Visser (n 25) 76, 86ff.

138  Anna Brunner the dominance of liberal institutions as the International Monetary Fund and the World Bank for Reconstruction and Development.71

V. Conclusion A closer look at ILC debates concerning the question of acquired rights exemplifies the rise and fall of the third-​world battle for international law in the second half of twentieth century, which not only occurred in the field of state succession, but also in international economic law. While the concept of acquired rights had not been fundamentally challenged before the Second World War, decolonization led to a softening of this notion, to a certain extent even with Western support. The third world tried to lower further the level of protection for foreign investments, aiming to establish an international right of expropriation without compensation. Bedjaoui, who openly addressed this radical claim in the ILC, was confronted with insurmountably resistance. Hence, he tried—​as the UNGA did in its early years—​to push the question from the international to the national level. Bedjaoui’s endeavours and the third-​world position on acquired rights per se was even more marginalized by the industrialized nations’ refusal to sign the VCSSPAD. Whereas the third world mobilized for decades to gain leeway to deal with foreign investors, in the end the debate led to even rising standards in investment protection law. Taking a closer look at this debate, a certain pattern of Western argumentative structure and discursive strategy, as well as its logical pitfalls, become as obvious as the third world’s attempts to answer these tactics. Established customary international law had developed though state practice and opinio iuris of a number of states in the colonial ‘state community’, to which the colonies themselves did obviously not belong. International lawyers in the West considered the former colonies to be bound by this established international law, particularly by general norms of international customary law concerning acquired rights of aliens. New states, it was said, could not, on the one hand claim sovereign equality, a right stipulated by customary international law, and on the other hand, refuse to be bound by international law on that very basis.72 The acceptance of international law was viewed to be the price new states had to pay in return for their acceptance as a state by other states.73 In this theory, a new state had no opportunity to reject international law, or parts of it, at all since it was bound automatically and

71 Philipp Dann, Stefan Kadelbach and Markus Kaltenborn (eds), Entwicklung und Recht:  Eine systematische Einführung (Nomos 2014) 71, 88; Pahuja (n 47) 168; Schrijver (n 19) 183. 72 O’Connell (n 12) 627, 636; on O’Connell’s position see also Craven (n 9) 88. 73 Schönborn (n 11)  71ff; Lauterpacht, Oppenheim’s International Law (n 11)  18, 19; Folz (n 11)  319, 329ff.

Acquired Rights and State Succession  139 consequently de facto in a non-​consensual way. However, international lawyers in the third world wanted to reform international law so that it corresponded to the interests of all members of the new international society, including the former colonies.74 The West claimed that changing this customary international law by opposite state practice was not sufficient to establish a state practice and opinio iuris of the majority of the post-​colonial ‘state community’, which consisted of newly established states; instead, ‘representative’ consent of nation states from all state groups (first-​, second-​, and third-​world) was required.75 So while customary international law developed without consent of the former colonies, which were nevertheless bound by these respective rules, new rules required the consent of the Western nations. Since the change of customary international law seemed as a much too slow and inflexible means to change international order, the third world turned towards the making of multilateral treaty law, using the ILC to reach its goals. But the West simply refused its consent to change the rules concerning, for example, acquired rights of aliens. While García-​Amador tried to pull the question of acquired rights into the international legal field of state responsibility, Ago pushed it away by redefining the subject. Bedjaoui tried to pull the issue of acquired rights into the subject of state succession but failed against the resistance of mainly Western international lawyers. Many third-​world initiatives to change international law from within had already failed,76 and Bedjaoui’s hope in what today might be called ‘emancipatory power of international law’77 was noticeably shaken, notwithstanding his critical attitude to law in general.78 Bedjaoui’s attempt to pull the question away from international law and push it into the sphere of the national jurisdiction of the newly independent states did also not succeed as the VCSSPAD never came in force. This is even more remarkable because the most controversial questions in the field of state succession in respect of state property, archives, and debts had been solved in the convention according to the view of the Western states, who nevertheless refused to sign it. The idea of a minimum standard in accordance with customary international law was finally reinforced by the conclusion of a network of BITs between third-​world states acting under economic pressure and Western countries. In this way, third-​ world attempts to reform international customary law concerning acquired rights became marginalized. While international lawyers from the first world as well as from the third world pushed and pulled the debate between consent and community, between different

74 Bernard Röling, International Law in an Expanded World (1960) 124 ff; Anand (n 6) 115. 75 See, for example, North Sea Continental Shelf (W Germany v Denmark, W Germany v Netherlands) [1969] ICJ Rep 3, 42. 76 Concerning the law of treaties and state succession in respect of treaties, see Krueger (n 2) 125ff, 279ff. 77 Bedjaoui, Towards a New NIEO (n 7) 97. 78 ibid 50.

140  Anna Brunner topics of international law as well as between international and national jurisdiction, in the end, the Western view prevailed. International law has therefore become a platform for fundamental challenges to concepts protecting colonial and neo-​colonial domination . However, it has also revealed itself to be mostly resistant against these discursive upheavals.79

79 cf Anghie (n 22) 222; Balakrishnan Rajagopal, International Law from Below: Development Social Movements and Third World Resistance (CUP 2003) 14; Pahuja (n 47) 95.

6

Rival Worlds and the Place of the Corporation in International Law Sundhya Pahuja and Anna Saunders

I.  Introduction Struggles in the arena of international law and institutions in the years between 1955 and 1974 should be understood not so much as a battle to control a pre-​ existing international law in an already-​constituted world, but rather as marking a series of encounters between rival practices of world-​making,1 which travelled with rival accounts of international law. The question of the corporation2—​how it should be understood, its relationship to both law and the state, and how it travels—​was a key element of those rival worlds. This chapter sketches the lineaments of that encounter through an account of the (successful) effort to establish the UN Commission on Transnational Corporations, and the (unsuccessful) attempt to draft a binding treaty.3 In our critical redescription of this telling institutional moment, we pay particular attention to how legal forms emerge and are stabilized as authoritative, and to what might be at stake in that stabilization.4 In historically inflecting the legal and institutional 1 Nelson Goodman, Ways of Worldmaking (Hackett Publishing Company 1978). 2 We are using the terms ‘company’ and ‘corporation’ interchangeably in this chapter, but there is a story to be written about the different traditions of thought to which they each belong, and the implications of their respective usages. 3 For a succinct account of the shift in institutional placement (and framing) of the corporation, from the United Nations Centre on Transnational Corporations (UNCTC) and its task of drafting a binding Code of Conduct, to the Human Rights Council, and its Draft Norms and Guiding Principles, see Jennifer Bair, ‘Corporations at the United Nations? Echoes of the New International Economic Order’ (2015) 6 Humanity 159. For recent scholarship that doubles as a ‘collective memoir’ of the work of the Commission and its associated research body, the UNCTC, see Khalil Hamdani and Lorraine Ruffing (eds), United Nations Centre on Transnational Corporations:  Corporate Conduct and the Public Interest (Routledge 2015); Karl P Sauvant, ‘The Negotiations of the United Nations Code of Conduct on Transnational Corporations: Experience and Lessons Learnt’ (2015) 16 Journal of World Investment and Trade 11. 4 Our methodological orientation is engaged, rather than explained, in this short chapter. The idiom in which we are writing may be described as a novel methodological orientation toward an ‘historically inflected jurisprudence’. For previous engagements with this, see Sundhya Pahuja, ‘Letters from Bandung:  Encounters with Another Inter-​National Law’ in Luis Eslava, Michael Fakhri and Vasuki Nesiah (eds), Bandung, Global History and International Law:  Critical Pasts and Pending Futures (CUP 2017) (hereafter Pahuja, ‘Letters from Bandung’); Sundhya Pahuja and Cait Storr, ‘Rethinking Iran and International Law:  The Anglo-​Iranian Oil Company Case Revisited’ in James Crawford, Abdul Koroma, Said Mahmoudi and Alain Pellet (eds), The International Legal Order: Current Needs Sundhya Pahuja and Anna Saunders, Rival Worlds and the Place of the Corporation in International Law In: The Battle for International Law: South-North Perspectives on the Decolonization Era. Edited by: Jochen von Bernstorff and Philipp Dann, Oxford University Press (2019). © The Several Contributors. DOI: 10.1093/oso/9780198849636.003.0007

142  Sundhya Pahuja and Anna Saunders story in this way, we discover that the struggle over the proper understanding of the relationship between international law, the state, and the ‘multinational’ corporation had two distinct layers: one that operated within what has retrospectively become the usual frame of reference, and another more radical layer that contested the frame itself. Looking back, we tend to see only the more familiar level of the contest which centres on the question of whether or not the presence of foreign corporations, and foreign investment more generally, were ‘good for development’. This battle appears as a set of pre-​constituted actors (companies, developed states, developing states, and international institutions) disagreeing about the nature and effect of the interactions between them. But if we slow down our reading and take a different imaginative vantage point than the present, the struggle over the corporation reveals itself to engage two a priori issues, both questions of authority and of form. The first was whether a company should be understood as a ‘private’ or ‘political’ entity. 5 The second was whether a corporation could ‘travel’, or  —​maintain its legal personality across jurisdictional lines, —​and if so, under what conditions.6 Together these questions of form were expressed as the problem of how to control the negative social, economic, and distributive effects generated by highly mobile and economically powerful corporations. In contrast to these a priori questions of enframing, the redescribed question as to whether or not the presence of foreign corporations was ‘good for development’ was empirically unresolvable at any level of generality—​the devil was always in the detail.7 Slowing down our reading of the period also reveals that the battle lines around that question were more complex than they now appear. Those lines were drawn in ways which upset a comfortable rehearsal of a North-​South divide.8 The

and Possible Responses: Essays in Honour of Djamchid Momtaz (Brill 2017) 53 (hereafter Pahuja and Storr, ‘Rethinking Iran’); Sundhya Pahuja, ‘Public Debt, the Peace of Utrecht and the Rivalry between Company and State’ in Alfred Soons (ed), The 1713 Peace of Utrecht and Its Enduring Effects (Brill 2016). On ‘critical redescription’, see Sundhya Pahuja, ‘Laws of Encounter: A Jurisdictional Account of International Law’ (2013) 1 London Review of International Law 63 (hereafter Pahuja, ‘Laws of Encounter’). 5 On this question, see David Ciepley, ‘Beyond Public and Private: Toward a Political Theory of the Corporation’ (2013) 107 American Political Science Review 139. See also Morton J Horwitz, ‘History of the Public/​Private Distinction’ (1982) 130 University of Pennsylvania Law Review 1423 (hereafter Horwitz, ‘Public/​Private Distinction’). See also Shaunnagh Dorsett and Shaun McVeigh, ‘Jurisprudences of Jurisdiction: Matters of Public Authority’ (2014) 23 Griffith Law Review 569 (hereafter Dorsett and McVeigh, ‘Jurisprudences’). 6 Horwitz discusses the seminal cases exploring this question across state lines within the US, Western Union Telegraph Co v Kansas 216 US 1 (1910); Pullman Co v Kansas 216 US 56 (1910); Ludwig v Western Union Telegraph Co 216 US 146 (1910); Southern Railway Co v Greene 216 US 400 (1910); Horwitz, ‘Public/​Private Distinction’ (n 5). 7 David K Fieldhouse, The West and the Third World:  Trade, Colonialism, Dependence, and Development (Wiley 1999) (hereafter Fieldhouse, The West and the Third World). 8 Natasa Miskovic, Harald Fischer-​Tiné and Nada Boskovska (eds), The Non-​Aligned Movement and the Cold War: Delhi–​Bandung–​Belgrade (Routledge 2014).

Rival Worlds and the Corporation  143 incipient ‘Cold War’, Sino-​Soviet Rivalry,9 the invention of ‘Development’, and the implementation of a (Marshall) plan to (re)construct Europe all played into generating rival imaginaries and competing anxieties and produced both unexpected commonalities across what was to become a North-​South ‘divide’ and instructive alliances of interest between what we now think of as ‘public’ and ‘private’ actors. And yet precisely because of its political valencies and empirical irresolvability, the ‘mere’ redescription of the issue through a developmentalist lens was key to the stabilization of the juridical outcomes sought by the United States (US) and its allies. These were ‘formal’ outcomes in the strictest sense of the word. Specifically, the framing of the disagreements as political questions over whether the ‘protection’ of foreign property belonged in the domestic or international sphere and over whether the regulation of corporate conduct should be internationalized or left to the domestic sphere effected an implicit resolution of crucial questions of legal form. Thus, in the ‘success’ of establishing the United Nations Centre on Transnational Corporations (UNCTC) as a forum for disputes over the relationship between companies and states, what was stabilized was an enframing of that dispute that carried with it an account of private property as a universal institution, and the corporation as both ‘private’ and as able to travel freely with its personality intact. And so, what was experienced as a (minor) victory is perhaps better understood in the genre of tragedy.10 That juridical (or more properly ‘jurisdictional’)11 defeat paved the way not only for political defeat in the failure of the attempt to craft a treaty that addressed the conduct of multinational corporations directly, but also in the subsequent efflorescence of investor-​state arbitration, which together produced a series of outcomes precisely opposite to those sought by the third world and its friends.

II.  Instituting the battle lines The multinational companies are the ‘chartered companies’ of modern times. Mohammed Bedjaoui, 197912

9 Jeremy Friedman, Shadow Cold War: The Sino-​Soviet Competition for the Third World (UNC Press Books 2015). 10 See David Scott, Conscripts of Modernity: The Tragedy of Colonial Enlightenment (Duke University Press 2004). For an account of the ‘narrative arc of tragedy’ see Simon Critchley, ‘Tragedy’s Philosophy and Philosophy’s Tragedy’ (As part of the series What is Philosophy?, Humanities Center Annual Lecture, Brigham Young University, 2014). See also Adil H Khan, ‘Inheriting a Tragic Ethos: Learning from Radhabinod Pal’ (2 August 2016) 110 AJIL Unbound 25. 11 See generally Shaunnagh Dorsett and Shaun McVeigh, Jurisdiction (Routledge-​Cavendish 2012); Pahuja, ‘Laws of Encounter’ (n 4). 12 Mohammed Bedjaoui, Towards a New International Economic Order (UNESCO 1979) 36–​37 (hereafter Bedjaoui, Towards a New International Economic Order).

144  Sundhya Pahuja and Anna Saunders The long backstory to the question of the multinational corporation is colonialism. The jurisdictional and historical story of companies in that context is too complex for our purposes here, but two elements bear mentioning. First, regardless of how they are theorized, the chartered or ‘colonial’ companies had been experienced in much of the world not simply as agents of empire, but as themselves imperial masters.13 This mastery was not effected simply through the exercise of ‘private’ power, but of political, or public, authority.14 As Bedjaoui was later to put it, the chartered companies enjoyed ‘the right to recruit armed forces, levy taxes and make regulations’.15 They also made laws, adjudicated disputes, and administered territory.16 Second, by the middle of the nineteenth century, and after several crucial shifts in the quality of the ongoing encounters between the European and non-​European worlds,17 the idea of private property and its ownership by foreigners, was being protected outside Europe through multiple modalities of violence. Colonialism, economic coercion, and the use (or threat) of force in the form of ‘gunboat diplomacy’18 were all elements of that protection. As the twentieth century dawned and the legitimacy of protecting foreign property ownership through force was questioned, both the US and European states tried to assert a legal basis for the protection of private property, including that being claimed by foreign corporations. But this ‘legal’ basis remained both putative and contested,19 and as decolonization

13 See for example, Ngũgĩ wa Thiong’o, Resisting Metaphysical Empire: Language as War Zone (New Beacon Books Limited 2014) (John La Rose Memorial Lecture, 2013) (hereafter Ngũgĩ, War Zone). See also Philip J Stern, The Company State: Corporate Sovereignty and the Early Modern Foundations of the British Empire in India (OUP 2011) (hereafter Stern, The Company State). 14 This is mostly theorized as delegated sovereignty, although Sundhya Pahuja’s current research relates to a different theorization of this authority that is beyond the scope of this chapter. On the question of the exercise of public authority, see also Dorsett and McVeigh, ‘Jurisprudences’ (n 5); Janet McLean, Searching for the State in British Legal Thought: Competing Conceptions of the Public Sphere (CUP 2012); Paul G Mahoney, ‘Contract or Concession? An Essay on the History of Corporate Law’ (2000) 34 Georgia Law Review 873, 874. 15 Bedjaoui, Towards a New International Economic Order (n 12). 16 Stern, The Company State (n 13). 17 Two tipping points but with complex implications around this time were the Opium Wars between Britain and China (1839–​1842), and later, Britain and France and China (1856–​1860), and the acquisition of ruling powers over India in August 1858 (after the 1857 Rebellion) by the Government of India Act 1858—​pursuant to which the East India Company was formally dissolved and its ruling powers over India were transferred to the British Crown. 18 Alfred Vagts, Defense and Diplomacy: The Soldier and the Conduct of Foreign Relations (King’s Crown Press 1956); Charles Lipson, Standing Guard: Protecting Foreign Capital in the Nineteenth and Twentieth Centuries (University of California Press 1985) (hereafter Lipson, Standing Guard). 19 Borchard, for instance, in 1915, writes in relation to the question of legal personality, that ‘there is more uncertainty as to the extent of the obligation to recognize the legal capacity of foreign corporations’: Edwin M Borchard, The Diplomatic Protection of Citizens Abroad, or, the Law of International Claims (The Banks Law Publishing Co. 1915) 41. The Drago (debt) and Calvo (investor–​state disputes) doctrines were both opposed to the idea that a right of diplomatic protection inhered in states with respect to the treatment of foreign property. See Muthucumaraswamy Sornarajah, The Pursuit of Nationalized Property (Martinus Nijhoff Publishers 1986) 11. Contrast this to some extent with the argument made in Lipson, Standing Guard (n 20).

Rival Worlds and the Corporation  145 proceeded, the foreign ownership of property—​ particularly by transnational 20 corporations—​became a key site of struggle. The new post-​war institutions quickly became sites of that struggle. In the context of the success of the anti-​colonial struggles, those institutions (and institutionalization itself) seemed to hold out the glimmer of a promise of an international society organized around nation-​states, rather than empires, and in which the fragile principle of formal sovereign equality held at least some meaning. That meaning centred on staving off the ‘neo-​colonial’ international order, which threatened to replicate the political economy of empire in the guise of universal legality.21 And despite its fragility, such a society seemed to offer the chance to assert a form of legal authority over companies long seen as illegitimate and exploitative.22 By the time of the Bandung conference of 1955, the non-​European World was using international fora to denounce imperial systems of labour, production, agriculture, extraction, and finance in both the formal colonies and in the wider ‘spheres of influence’, as having been geared toward the satisfaction of the needs of the ‘metropole’, and the immiseration of the rightful inhabitants of the colonies.23 The experience of the Latin American states, nominally independent since the nineteenth century,24 also provided evidence for many that the colonial mode of ‘integrating’ places and people into a ‘world economy’, as well as developing an ‘international division of labour’,25 created enduring economic structures and patterns of integration that would continue the impoverishment of the third world into the future and deepen international inequalities.26 From the perspective of 20 Indeed, the NIEO was eventually to address this problem head on. See, for example, Anthony Anghie, ‘Legal Aspects of the New International Economic Order’ (2015) 6 Humanity 145. 21 On neo-​colonialism, see, for example, Frantz Fanon, ‘First Truths on the Colonial Problem’ in Frantz Fanon, Toward the African Revolution (Francois Maspero tr, first published 1964, Grove Press 1967). 22 A good example of this is the Anglo–​Persian oil company in Iran: See Pahuja and Storr, ‘Rethinking Iran’ (n 4). 23 If not well before. See Luis Eslava, Michael Fakhri and Vasuki Nesiah (eds), Bandung, Global History and International Law: Critical Pasts and Pending Futures (CUP 2017). 24 For example, Ecuador, 1810; Venezuela, 1810; Paraguay, 1811; Argentina, 1816; Chile, 1818; Colombia, 1819; Mexico, 1821; Peru, 1821; Guatemala, 1821; Nicaragua, 1821; Costa Rica, 1821; Panama, 1821; Brazil, 1822; Bolivia, 1825; Uruguay, 1825. But Cuba and the Dominican Republic did not gain independence from the US until 1902 and 1924, respectively, while Puerto Rico remains a territory. 25 Fieldhouse, The West and the Third World (n 7). See generally ch 6, ‘The Concept of a Colonial Economy’, which contains a magisterial survey of much of the literature. 26 The ‘dependency theorists’ argued that that the way poor states are integrated into the ‘world system’ creates a resource flow from a ‘periphery’ of poor and underdeveloped states to a ‘core’ of wealthy states, further enriching the latter at the expense of the former; on this point, see Hans W Singer, ‘The Distribution of Gains between Investing and Borrowing Countries’ (1950) 40 American Economic Review 473, 479; Raul Prebisch, The Economic Development of Latin America and Its Principal Problems (United Nations Department of Economic Affairs 1950); Andre Gunder Frank, ‘The Development of Underdevelopment’ (1966) 4 Monthly Review:  An Independent Socialist Magazine; Celso Furtado, Economic Development of Latin America:  Historical Background and Contemporary Problems (CUP 1976); Paul A Baran, The Political Economy of Growth (Monthly Review Press 1957). See also Walter Rodney, How Europe Underdeveloped Africa (Bogle-​L’Ouverture Publications 1972) (on Africa); Samir Amin, ‘L’Afrique de l’ouest bloquée: l’économie politique de la colonisation, 1880–​1970’ (1974)

146  Sundhya Pahuja and Anna Saunders both the second and third worlds, the ‘multinational corporation’, as it came to be known after about 1960,27 was widely understood to be a key moving part in this structural account of the ‘world economy,’ potentially continuing the role of the chartered companies. But by the very early 1960s, despite the invention of an international rubric addressed to the question of material need,28 and a decade inaugurated by international institutions in its name,29 it had become clear that countries in the third world were not benefitting from these institutional efforts. Indeed for many, relative to the first world, their economic position was declining.30 At the international institutional level, Latin American economists led the drive to change the structural features of the ‘world economy’ that were seen to induce the dependency of the ‘periphery’.31 They did this through a range of measures, starting with a series of resolutions in the UN General Assembly (UNGA) asserting the right to nationalize land and resources as part of the doctrine of Permanent Sovereignty over Natural Resources,32 and later through the initiation of an intergovernmental forum at the United Nations (UN) on trade and development as a way of tackling the unfavourable terms of trade.33 The realization that the position of the third world was not likely to improve under current rules encouraged those in the South increasingly to assert a radical account of the emergent concept of development understood in terms of political economy rather than through the technical lens (favoured by the first world) of ‘development economics’.34 It also prompted a push for the 29 Annales:  Histoire, Sciences Sociales 291 (on West Africa); PJ Marshall, ‘Conclusion:  Empire in Retrospect’ in Peter J Marshall (ed), The Cambridge Illustrated History of the British Empire (CUP 1996). 27 Fieldhouse, The West and the Third World (n 7) 260. Fieldhouse (following Mira Wilkins) attributes the neologism to David Lilienthal, one-​time head of the Tennessee Valley Authority, who it seems probably coined the term between 1958 and 1960. 28 This was, of course, ‘development’. See Sundhya Pahuja, Decolonising International Law:  Development, Economic Growth and the Politics of Universality (CUP 2011) (hereafter Pahuja, Decolonising International Law). On the continuity between development, the civilizing mission, and before that, Christian tropes of salvation, see Jennifer L Beard, The Political Economy of Desire: International Law, Development and the Nation State (Routledge-​Cavendish 2007). 29 United Nations Department of Economic and Social Affairs, The United Nations Development Decade: Proposals for Action: Report of the Secretary-​General (United Nations Publications 1962). 30 See Karl P Sauvant, ‘From Economic to Socio-​Cultural Emancipation: The Historical Context of the new International Economic Order and the New International Socio-​Cultural Order’ (1981) 3 Third World Quarterly 48, 50 (hereafter Sauvant, ‘From Economic to Socio-​Cultural Emancipation). 31 Examples include the establishment of the UN Economic Commission for Latin America and the Caribbean (ECLAC or CEPAL in Spanish). Argentine economist Raúl Prebisch was a key figure in this kind of structuralist economic thought. Prebisch was appointed as the inaugural Secretary-​General of UNCTAD: Diego Cordovez, ‘The Making of UNCTAD: Institutional Background and Legislative History’ (1967) 1 Journal of World Trade Law 243, 272 (hereafter Cordovez, ‘The Making of UNCTAD’). 32 Pahuja, Decolonising International Law (n 28). See also United Nations General Assembly Res 1803 (XVII) (14 December 1962) 17th Session: 1962. 33 This started life as an ad hoc conference but became a permanent institution in 1964: GA Res 1995 (XIX) (30 December 1964) 19th Session; see also Cordovez, ‘The Making of UNCTAD’ (n 31). 34 Sauvant writes that, prior to the 1970s, economic development had largely been approached as a technical, rather than a political, matter: see Karl P Sauvant, The Group of 77: Evolution, Structure Organization (Oceana Publications 1981) 4 (hereafter Sauvant, The Group of 77); see also Sauvant,

Rival Worlds and the Corporation  147 establishment and strengthening of institutional arenas in which new policies for ‘international development’ could be formulated. The establishment of the UN Conference on Trade and Development (UNCTAD) was one expression of that push. At a meeting in Cairo in 1962, thirty-​ six states drawn from each of the three regions of the South (Asia, Africa, and the Middle East) came together to call for the creation of a forum in which to discuss ‘all vital questions relating to international trade, primary commodity trade, [and] economic relations between developing and developed countries’.35 Despite opposition from almost all nations of the European Economic Community, many of whom feared such a conference would threaten the prevailing legal–​economic order underpinned by the (European) Common Market and the GATT,36 UNCTAD was eventually convened, although it was inaugurated as a conference, rather than the permanent institution it was later to become.37 At the conclusion of the first conference in June of 1964, seventy-​five countries issued a joint declaration on a new agenda for trade and development.38 Along with the promotion of that agenda, in which UNCTAD I was positioned as a ‘significant step towards creating a new and just world economic order’,39 the declaration was a forging place of the Group of 77 (G77).40 In order to achieve the desired transformation, the Group stressed the importance of establishing ‘international machinery in the field of trade and development’ that was democratically run and which provided equal representation to all states.41 Maintaining a sense of political solidarity between the Group was to be key to achieving their aims within the fora of the UN, as recognized by the timing of their meetings. At its next meeting in Algiers in 1967, the Group resolved to hold a Ministerial Meeting prior to each session of UNCTAD ‘in order to harmonize the positions of developing countries

‘From Economic to Socio-​Cultural Emancipation’ (n 32) 55; GA Res 3202 (S-​VI) (1 May 1974) A/​Res/​ S-​6/​3202 GA Sixth Special session Agenda item 7; For a brief account of the emergence of the discipline of development economics, see Susan N Engel, ‘Development Economics: From Classical to Critical Analysis’ in Robert A Denemark (ed), The International Studies Encyclopedia Volume II (Blackwell Publishing 2010) 874–​92. 35 Giuliano Garavini, After Empires: European Integration, Decolonization, and the Challenge from the Global South (Richard R Nybakken tr, OUP 2012) 35 (hereafter Garavini, After Empires). See also Cairo Declaration of Developing Countries (18 July 1962). 36 With the exception of the Netherlands: Garavini, After Empires (n 35) 35. 37 ECOSOC Res 917 (XXXIV), (3 August 1962)  Agenda Item 27:  Arrangements Regarding the Report of the Council to the General Assembly; GA Res 1785 (XVII) (8 December 1962). 38 Joint Declaration of the Seventy-​Seven Developing Countries Made at the Conclusion of the United Nations Conference on Trade and Development (UNCTAD) (Geneva, 15 June 1964) (hereafter Joint Declaration of the Seventy-​Seven Developing Countries). 39 ibid. 40 Sauvant, ‘From Economic to Socio-​Cultural Emancipation’ (n 30) 50. The two subsequent recruits were the Republic of Korea and the Republic of Vietnam: Sauvant, The Group of 77 (n 34) 18–​19. The name persisted despite the membership numbering 122 countries by 1980. 41 Joint Declaration of the Seventy-​Seven Developing Countries (n 38).

148  Sundhya Pahuja and Anna Saunders and to formulate joint programmes of action in all matters related to trade and development’.42 Levels of cooperation of this kind were internationally unprecedented, and although the political orientations of this large group of countries were inevitably disparate,43 a sense of solidarity operated as a counterweight to the effect of political diversity. This sense arose from the shared burden of history, the experience of the ‘racialism’ of Europe and the US,44 the legacies of empire, the either/​or choices being produced by the ‘Cold War’, and to a different extent, between Soviet and Chinese communism,45 and the explicit attempts to take control of the new international fora by Europe and the US. And so, political solidarity sought its expression in a new institutional, as well as legal, framework—​with the first seen from the outset as being critical to the second. This drove several initiatives, including the agenda of what was to be a fateful third conference from the perspective of the corporations question.46

III.  UNCTAD III: decolonizing political economic imaginaries? The third session of UNCTAD was held between 13 April and 21 May 1972 in Santiago, Chile. As president of the host country, Salvador Allende gave the opening speech.,47 Allende’s speech must have been electrifying.48 In a clarion 42 Charter of Algiers, 25 October 1967. The second such meeting was held in Lima in 1971, producing the Declaration and Principles of the Action Programme of Lima. See UNCTAD Group of 77. Ministerial Meeting, Declaration and Principles of the Action Programme of Lima: Adopted by the Group of 77 at the Second Ministerial Meeting on 7 November 1971 (UNCTAD 1971). For a discussion of the Algiers ministerial conference and the opening statement made by Algerian president Hourari Boumedienne, see Garavini, After Empires (n 35) 75–​76. 43 Ranging from more pragmatic (Asia and Africa) to radically progressive (Latin America): ibid 134. 44 Pahuja, ‘Letters from Bandung’ (n 4). 45 See, for example, Natasa Miškovic, Harald Fischer-​Tiné and Nada Boškovska, The Non-​Aligned Movement and the Cold War: Delhi, Bandung, Belgrade (Routledge 2014) and Jeremy Friedman, Shadow Cold War: The Sino-​Soviet Competition for the Third World (University of California Press 2015). 46 Sauvant, The Group of 77 (n 34) 2–​3, 9–​10. 47 Allende was a democratically elected socialist and accordingly, a troubling figure for the US, which had expended much effort in trying to prevent his election and topple him when he was elected, finally engineering the infamous coup of General Augusto Pinochet. On the investigations by the US Senate of such covert activities, see US Senate, ‘Hearings before the Select Committee to Study Governmental Operations with Respect to Intelligence Activities of the United States Senate:  Covert Action’ (4/​5 December 1975) (Ninety Fourth Congress, First Session, Volume 7, US Government Printing Office 1976)  accessed 10 June 2017. 48 The journalist for the Observer wrote that ‘Western delegates, expecting a platitudinous inauguration, writhed in their seats as the Chilean leader, conscious that he was speaking for virtually the whole of the Third World, tore into the trade and aid practices of rich countries. [ . . . ] Few orators could successfully have followed that speech [ . . . ] As Allende left the rostrum . . . covered symbolically in Chile’s main export, copper, the atmosphere was electric. One Western European Cabinet Minister looked almost apoplectic. A Scandinavian delegate chuckled quietly that one could have expected nothing less

Rival Worlds and the Corporation  149 call to action, he outlined the mission of the third session as continuing the work of replacing the ‘outdated and essentially unjust economic and trade order’.49 Colonialism could not be forgotten while it cast long shadows over both national and international political economies. Even after their formal decolonization, many countries ‘exist[ed] under unbearable conditions . . . their economy [still] dominated by foreign powers; outsiders hold[ing] all or part of their territory; they still endure[d]‌the yoke of colonialism . . . deep social disparities oppress[ed] the masses and benefit[ted] only the privileged few’.50 And yet despite these tentacular legacies of empire, Allende was hopeful. World developments since the last session of the Conference had created a moment in which transformative change was possible.51 ‘The financial conceptions of the post-​war period are tottering,’ he said, and the ‘new or strengthened centres of political and economic power [would generate] striking changes of front among the industrialized countries’.52 Having already seen the beginnings of a new era of ‘coexistence and dialogue’ between capitalist and socialist countries, Allende speculated that the same might be possible for the colonial powers and formerly colonized ‘dependent peoples’.53 Growing instances of successful resistance, and imperial defeats, as well as the energizing political solidarity between the peoples of the global South led him to be certain that they would reject an international order which perpetuated ‘their backward state’. Instead, ‘they will seek and they will obtain their economic independence and will conquer underdevelopment’.54 But if his rhetoric was impassioned, Allende’s analysis offered no illusions.55 Chile was under immense pressure from multinational corporations resistant to its plans to nationalize key sections of the Chilean economy, and they were openly

from a country which was being squeezed in a vice by the US’. Hugh O’Shaughnessy, ‘Poor Nations Warn: Give Us a Better Deal or Else’ (16 April 1972) The Observer. 49 UNCTAD, ‘Address Delivered by Mr Salvador Allende Gossens, President of Chile, at the Inaugural Ceremony on 13 April 1972’ in ‘Proceedings of the United Nations Conference on Trade and Development: Third Session Santiago de Chile, 13 April to 21 May 1972, Vol 1’ (1973) UN Doc TD/​180 (Vol 1) 9 (hereafter UNCTAD, ‘Allende’s UNCTAD III Address’). 50 ibid para 12. 51 ibid paras 49, 96. Here he refers to both China’s recent entry into the ‘international community’ and to the ‘invincible heroism’ of Vietnam, where communism, as an alternative model of socio-​ economic ordering, had risen despite resistance from both former imperial powers and local elites. 52 ibid para 50. He also attributed the potential for change to ‘a tide of new technical and scientific discoveries’: ibid para 54. 53 ibid para 97. 54 Whether peacefully, through ‘cooperation, based on solidarity, justice and respect for human rights’ or alternatively being forced to take the path of ‘conflict, violence and suffering’:  ibid paras 108–​09. 55 One could also read his hope as threatening from the perspective of those with vested interests in the maintenance of the system he was attacking. As much is plain from the CIA-​backed coup d’état led by Augusto Pinochet which, on 11 September 1973, deposed Allende and led to his death. See, for example, William Blum, Killing Hope: US Military and CIA Interventions since World War II (first published 1995, Common Courage Press 2004).

150  Sundhya Pahuja and Anna Saunders interfering in Chilean sovereignty.56 The concert between the American Central Intelligence Agency and those same corporations to destabilize Allende, as they had others before him, was already notorious. For Allende, not only was a more just Chile under threat, but the unchecked power and further expansion of multinational corporations would be fatal to the new worlds being made through third-​ world solidarity and would scuttle the possibility of cooperation between the developed and the developing world. The question of the large multinational corporation was thus thrust onto the stage of international institutionalism, and the agenda for the rest of the conference was set. Allende’s critique of the corporation operated at the radical—​or ‘root’—​level alluded to earlier, engaging a priori questions of how the company should be understood, and how the company–​state relation should be enframed. Although Allende deployed the term ‘development’57 as a rhetorical proxy for the question of material well-​being,58 he related it neither to an internationalized promise, nor to an instrumentalized programme. Instead, he reminded the assembled conference of the imperial origins of foreign investment, which although ‘often presented as an instrument for progress, has almost always proved negative in its effects,’59 and made it clear that it was through its recent conceptual connection to ‘development’ that ‘self-​interest and altruism’ seemed suddenly to be compatible. He understood that the rhetorical merger between self-​interest and altruism—​a ‘dual mandate’ for the present day60—​had long been deployed by foreign corporations who represented their actions as being in the interests of those whose resources they exploited, but even more crucially, that this story provided authority for their actions.61 Multinational corporations ‘which arrogate to themselves the role of agents promoting the progress of the poorer countries [ . . . ] have become a supranational force that is threatening to get completely out of control’.62 Acting with authority in his account, rather than simply exercising power, Allende suggested that corporations should be understood as political, rather than private, entities who threatened to compete with states on the international stage. These

56 Anthony Sampson, The Sovereign State of ITT (Stein and Day 1973). See also Paul E Sigmund, Multinationals in Latin America: The Politics of Nationalization (University of Wisconsin Press 1980); Laura Randall, The Political Economy of Latin America in the Postwar Period (University of Texas Austin 1997); Edgar J Dosman, The Life and Times of Raúl Prebisch, 1901–​1986 (McGill-​Queen’s University Press 2008). 57 On the institutionalisation of development, see Pahuja, Decolonising International Law (n 28). 58 By now the term was thoroughly institutionalized as a proxy for this conversation. See generally Gilbert Rist, The History of Development: From Western Origins to Global Faith (Patrick Camiller tr, University of Chicago Press 2014). 59 UNCTAD, ‘Allende’s UNCTAD III Address’ (n 49) para 16. 60 Frederick JD Lugard, The Dual Mandate in British Tropical Africa (W Blackwood and Sons 1922). 61 One could also say that it provided ‘legitimacy’. However, here we place emphasis on the question of authority and practices of authorization rather than legitimacy and legitimization. 62 UNCTAD, ‘Allende’s UNCTAD III Address’ (n 49) para 58.

Rival Worlds and the Corporation  151 companies would not act in conformity with agreements among states, he warned, but would instead adhere to their own interests and policies: [t]‌hey have their objectives, their own policies with regard to trade, shipping, international affairs and economic integration, their own view of things, their own activity, their own world. We spend our time at international meetings discussing the visible features of the third world’s structure of dependence, while its underlying determinants slip by us unseen, like the submerged three quarters of an iceberg.63

As Allende repeatedly pointed out, this was not an historically new phenomenon. Through the control of key industries such as telecommunications and mining, multinational corporations threatened to capture the current moment of change and to repeat the experience of the Industrial Revolution, which had represented ‘a mere transition from colonial to neo-​colonial status’.64 And, by subtle yet pervasive methods of intervention, he warned, they would eventually undermine the norm of non-​intervention that, for Allende, was the foundation of the international legal order.65 Allende offered the Chilean experience as instructive, both in respect of corporate interventions in the South as well as with respect to the claims of the first world, that multinationals brought beneficial flows of foreign direct investment.66 In order to counter the influence of multinationals and to capitalize on the possibilities offered by the Conference, continued cooperation and unity among the countries of the developing world was essential.67 The delegates would need both to ‘face the world as it is, defending [themselves] against illusions and mystifications’, but also to ‘throw[] . . . wide the gates of imagination’ to create a replacement for the post-​colonial order.68 Otherwise, in Allende’s words, the ‘new hopes that promise liberation may lead only to new forms of colonialism’.69 For Allende, a key element of the power of the transnational corporation lay in both its mobility vis-​à-​vis the state, and detachment from the nation in both

63 ibid 59–​61. Another story to be told is the way in which the secrecy shrouding the commercial world, or the world of the corporation, becomes or remains unquestionable—​the Chilean example being an exception to this general rule. 64 ibid para 55. 65 ibid para 62. 66 See Fieldhouse, The West and the Third World (n 7). Allende had begun the process of nationalizing the copper and minerals industries after his election, but much harm to the Chilean economy had already been done. According to the financial records of the copper companies, the original investment they had made in Chile was $30 million, but they had since extracted over $4,000 million from Chile—​ almost equalling the Chilean debt—​without any further investment: UNCTAD, ‘Allende’s UNCTAD III Address’ (n 51) para 40. 67 ibid paras 27–​28. 68 ibid para 11. 69 ibid para 53.

152  Sundhya Pahuja and Anna Saunders effective and affective terms. His speech to the UNGA on 4 December 1972 puts the point succinctly; We are witnessing a pitched battle between the great transnational corporations and sovereign states, for the latter’s fundamental political, economic and military decisions are being interfered with by worldwide organisations which are not dependent on any single State, and which, [ . . . ] activities, are not accountable to or regulated by any parliament or institution representing the collective interest. In a word, the entire political structure of the world is being undermined. ‘Merchants have no country of their own. Wherever they may be they have no ties with the soil. All they are interested in is the source of their profits.’ Those are not my own words; they were spoken by Jefferson.70

The mobility of the large corporations, and the corresponding challenge that posed for the existing political order prompted the delegates at UNCTAD III to argue for new, internationalized forms of regulation. As the Chilean representative stated, it was ‘no longer possible to ignore the serious gap in the system of international institutions, namely, the lack of any arrangements for the supervision and regulation of the activities of multinational corporations’.71 De Seynes, then Under-​Secretary General for Economic and Social Affairs, emphasized that, in the absence of such regulation, ‘it would be increasingly difficult to rely, for a development policy, on the combined advantages of financial resources, technology, managerial capacity and world-​wide distribution networks that international corporations could offer’.72 Instead, according to Argentinian economist Raul Prebisch, what was needed was for the developed world to abandon its ‘geocentric approach’ and to take seriously the interests and concerns of the developing countries, acknowledging them as different from its own.73

70 UNGA, ‘Address by Mr Salvador Allende, President of the Republic of Chile on 4 December 1972 Summary Records of the 2096th Meeting of the UN General Assembly’ (4 December 1972) UN Doc. A/​PV.2096, 59 (hereafter UNGA, ‘Address by Mr Salvador Allende’). The origin of the quote is found in Thomas Jefferson, The Writings of Thomas Jefferson (HW Derby 1861) 334. 71 UNCTAD, ‘Summary of Statement made at the 93rd Plenary Meeting, 20 April 1972, by H. E. Hernan Santa Cruz, Ambassador with Rank of Minister of State Chile’, in ‘Proceedings of the United Nations Conference on Trade and Development: Third Session, Santiago de Chile, 13 April to 21 May 1972, Vol Ia, part 1 (1973) UN Doc TD/​180, 57. 72 UNCTAD, ‘Summary of Statement made at the 89th Plenary Meeting, 18 April 1972, by Mr. P De Seynes Under-​Secretary-​General for Economic and Social Affairs of the United Nations’ in ‘Proceedings of the United Nations Conference on Trade and Development: Third Session, Santiago de Chile, 13 April to 21 May 1972, Vol Ia, part 1’ (1973) UN Doc TD/​180, 57 (hereafter UNCTAD, ‘Summary of the Statement by P De Seynes’). 73 Then Under-​Secretary General and Director of the Latin American Institute for Economic and Social Planning, as well as former Secretary-​General of UNCTAD, ‘Summary of Statement Made at the 103rd Plenary Meeting, 26 April 1972, by Raúl Prebisch Under-​Secretary-​General of the United Nations’ in ‘Proceedings of the United Nations Conference on Trade and Development: Third Session, Santiago de Chile, 13 April to 21 May 1972, Volume I (1973) UN TD/​180, 383.

Rival Worlds and the Corporation  153 Ultimately, Allende’s critique and the shared concerns of many of the delegates would be taken up at the Conference in two forms. The first was through conceptualizing the problem of corporate behaviour through the lens of ‘restrictive business practices’.74 The second, in response to the mounting evidence that foreign private investment had a detrimental impact on the economies of the countries that received such investment, was to ask how such impact might be remediated and minimized through law—​whether domestic or international. Although still much broader than the turn to business and human rights that was to come some thirty years later, what was already being lost in this enframing were the more radical questions about the benefits of private foreign investment per se, as well as an attention to the continuities between older forms of corporate activity and the current international order.

1.  Second Committee—​restrictive business practices The question of the effect of ‘restrictive business practices on developing countries, and the possibility of their regulation’ was taken up by the Second Committee of the 1972 conference.75 This question had been agreed on during the previous UNCTAD due to a growing perception that the practices of companies from the ‘developed’ world were inhibiting the ability of states from the global South to create wealth through increasing exports.76 However, the definition of restrictive business practices’ was contested from the outset. Most could agree that cartel practices of companies should be included, but based on their experience, many from the South would also include contractual practices impeding integration with the local economy and intellectual property protections that kneecapped the promised benefits of technology transfer,77 as well as a number of other practices about 74 On the future of the code on restrictive business practices, see Joel Davidow, ‘The UNCTAD Restrictive Business Practices Code’ (1979) 13 The International Lawyer 587; Dale A Oesterle, ‘United Nations Conference on Restrictive Business Practices’ (1981) 14 Cornell International Law Journal 1. 75 Following the pattern established by the work of the Preparatory Committee in setting up the first Conference, each Conference creates a number of sessional bodies—​both numbered Committees and Working Groups—​in order to facilitate the work of the Conference. The Committees are each assigned agenda items and participation in the Committees is ordinarily open to all participating States. The Conference in plenary considers and votes on resolutions either recommended or referred for further consideration by the Committees: see Cordovez, ‘The Making of UNCTAD’ (n 33) 281. For examples, see UNCTAD, ‘Proceedings of the United Nations Conference on Trade and Development Vol I’ (1964) E/​CONF.46/​141, Vol I, 101–​106; UNCTAD, ‘Proceedings of the United Nations Conference on Trade and Development, Third Session Vol I: 13 April to 21 May 1972’ (1973) UN Doc TD/​80, 15–​17 and annexes (hereafter UNCTAD, ‘Proceedings of the UNCTAD Third Session, vol 1’). 76 UNCTAD Res 25(II) (27 March 1968) (hereafter UNCTAD Res 25 (II)); UNCTAD, ‘Proceedings of the UNCTAD Third Session, vol 1’ (n 77)  agenda item 14(d). Before them was a report of the UNCTAD secretariat which had been instructed to consider these practices specifically ‘from the standpoint of the trade and development of developing countries’: see UNCTAD Res 25(II); ‘Second Committee, Summary Records of the Fifth Meeting’(24 April 1972)  UN Doc TD/​III/​C.2/​SR.5, 57 (hereafter ‘Summary Records of the Fifth Meeting’) (Krishnamurti, Director, Manufactures Division). 77 Krishnamutri, ‘Summary Records of the Fifth Meeting’ (n 76).

154  Sundhya Pahuja and Anna Saunders which little was known.78 As Director of Manufactures, Krishnamurti pointed out ‘[i]‌n some cases, the restrictions were not explicit in contractual arrangements but implicit in the nature of control exercised by a foreign enterprise over a firm in a developing country’.79 The language of restrictive business practices had been used to capture these problems since at least the Havana Charter of 1948.80 However, participants at the 1972 Conference agreed that although the Havana Charter could usefully be examined as part of the work of the proposed expert group, the regime on restrictive business practices81 would need to be revisited in light of the changed role of multinational corporations.82 Older attempts to regulate restrictive business practices were founded on a benign image both of the corporation as an actor which could easily be subjected to legal control, and of the state as willing and able to assert this control, which could no longer be assumed.83 At the meeting of the Second Committee, representatives drew attention to the sizeable and growing power of multinational corporations as compared to most countries of the global South. Viewed through the prism of trade, for instance, de Rivero from Peru highlighted that just 300 multinational companies controlled over 40 per cent of the total volume of trade in manufactured exports from developing countries and approximately 30 per cent of international trade as a whole.84 And following Allende’s evidence of corporate intervention in Chilean elections, in the view of many, this power was clearly spilling over into areas of sovereign authority.85 Against this background, the broadening of the definition was an attempt

78 ibid. 79 ibid. 80 See Havana Charter for an International Trade Organization, concluded 24 March 1948. The Havana Charter, negotiated at the beginning of the post-​war era, sought to create principles for the uniform regulation of international trade, administered by an International Trade Organization: Clair Wilcox, A Charter for World Trade (Macmillan Company 1949) vi–​ix (hereafter Wilcox, A Charter for World Trade). See further Richard Toye, ‘Developing Multilateralism:  The Havana Charter and the Fight for the International Trade Organization, 1947–​1948’ (2003) 2 International History Review 282. It was concluded in 1948 but never entered into force after the US withdrew its support: Dale B Furnish, ‘A Transnational Approach to Restrictive Business Practices’ (1970) 4 International Lawyer 317, 326. 81 Chapter V of that Charter contained a list of ‘restrictive business practices’ that could be subject to complaint by aggrieved member states, largely reflecting concerns around corporate cartel practices which might reduce competition: Wilcox, A Charter for World Trade (n 82) 110. 82 The regime in the Havana Charter contemplated only ‘the publication of infringements and the pressure of public opinion’ as a consequence of breaching its provisions; it relied on proof of harm as a result of any infringement rather than imposing prospective rules against particular behaviours; and enforcement of the Charter was left to individual states: see Second Committee, ‘Summary Records of the Seventh Meeting’ UN Doc TD/​III/​C.2/​SR.7, 83 (Israel). 83 The story of the Havana Charter is also relevant to this story, but has been removed for reasons of space. 84 Second Committee, ‘Summary Records of the Seventh Meeting’ UN Doc TD/​III/​C.2/​SR.7, 74. See also Second Committee, ‘Summary Records of the Sixth Meeting’ UN Doc TD/​III/​C.2/​SR.6, 65 (Bulgaria). 85 Second Committee, ‘Summary Records of the Sixth Meeting’ UN Doc TD/​III/​C.2/​SR.6, 60 (Mexico).

Rival Worlds and the Corporation  155 to capture the increasingly evident power relationship between company and state in political–​economic context. However, the extent to which these restrictive business practices should be understood as harmful to developing countries—​and the proper role of law in dealing with such practices—​was also contested. On the one hand, countries in which transnational corporations were operating subsidiary companies were experiencing the operations as making few, or even negative, contributions to the ‘development project’.86 Supporting the calls for enhanced regulation were the many damaging practices that had come to light through studies conducted in developing countries and detailed in the secretariat’s report.87 Ethiopia, for example, pointed to the way in which multinational corporations discouraged exports from developing countries because it was against their interests to create competition between their subsidiary companies.88 The Bolivian representative added that half of the parent companies were based in the US, and around one-​quarter in the United Kingdom (UK), and that it was through these extensive subsidiary networks that multinational corporations could and did exert influence over the exports of developing countries.89 Other states cited their experience of parent firms based in the global North using contractual clauses to restrict exports of firms in the South,90 and the impact of the emerging international patent and trademark system increasingly used to restrict the export of competing goods manufactured using intellectual property created in the global North.91 While states hosting investments tended to characterize these concerns as an unwanted corollary of corporate activity, the socialist countries saw them as intrinsic to Western European practices of investment. The size of these companies, coupled with the control exerted by their parent through the corporate structure, translated into the domination of domestic economies. For Bulgaria, for instance, this both posed ‘an obstacle to the development of the economies of the developing countries and . . . [had] a nefarious impact on the exports of those countries’.92 As the report showed, even where corporations professed a desire to assist in the creation of industry in parts of Asia, Africa, and Latin America, their aim in doing so

86 For their part, first world countries warned that hasty regulation would prove fatal to the ability to attract corporate activity sufficient to transform ‘backward’ economies. And on the part of the socialist countries (the third grouping), there was at best an agnosticism toward the idea of potential benefits, and often a wholesale rejection of the idea of foreign investment, echoing Allende’s warning that such benefits would always come at the cost of independence. For further exploration of these three approaches to the economic effects of multinational corporations on the host state that prevailed at the time, see Fieldhouse, The West and the Third World (n 7) 267–​71. 87 UNCTAD, ‘Proceedings of the UNCTAD Third Session, vol 1’ (n 75), Annex VI, Report of the Second Committee 182. 88 Second Committee, ‘Summary Records of the Sixth Meeting’ UN Doc TD/​III/​C.2/​SR.6, 62. 89 ibid 62–​63 (Bolivia). 90 ibid 66 (Malaysia) 91 ibid 62 (Ethiopia); 92 ibid 65.

156  Sundhya Pahuja and Anna Saunders was to ‘consolidate the dependent status of the developing countries . . . to limit their industrial exports while deriving benefits from them’.93 Thus, for the socialist countries, the ‘supposed advantages [of foreign investment] were more than offset by the outflow of financial resources which they generated’.94 In direct contrast to the idea that restrictive business practices might (and should) be addressed through an international agreement of some kind, first world countries took the view that it was the responsibility of developing countries themselves to enact legislation dealing with corporate conduct. This position was based on the promise that such activity could make an ‘overriding contribution’.95 Should tighter controls be put in place around these contributions, they argued, multinational corporations would be deterred from investing and developing countries would lose the benefits of such investment.96 The ‘benefits’ promised were conceptually aggregated, tutelary, and amorphous.97 It was further underpinned by the fiction of the large corporation as a ‘multinational’ enterprise, collaboratively conducting a business venture emanating from multiple sites, rather than a ‘transnational’ one, which was controlled in one place but operative in others. Ellis from the International Chamber of Commerce told delegates that the ‘multinational enterprise’ was not a single entity, but a parent company with a web of subsidiaries. As such, ‘each of the subsidiaries was subject to the sovereign powers of the State in whose territory it operated . . . [which] had the sovereign authority to enact legislation and to introduce controls to curb any harmful restrictive business practices’.98 In this respect, some developed countries offered their own national laws as a model for emulation.99 Insistence that the proper sphere of regulation was domestic was joined by the scepticism of some toward the potential for international law to reduce these practices.100 And yet for many, the very fact of both the obvious need for domestic legislation and its proven inadequacy in controlling the activities of multinational corporations pointed to the need for new international legal principles. As Ceylon’s representative stated, ‘the majority of developing countries had no means of controlling 93 Second Committee, ‘Summary Records of the Seventh Meeting’ UN Doc TD/​III/​C.2/​SR.7, 75 (Byelorussian Soviet Socialist Republic). 94 Second Committee, ‘Summary Records of the Eighth Meeting’ TD/​III/​C.2/​SR.8, 93 (Cuba). 95 UNCTAD, ‘Proceedings of the UNCTAD Third Session, vol 1’ (n 75) Annex VI, Report of the Second Committee 185, 196. 96 ibid. 97 See the comments of Japan and the US:  Second Committee, ‘Summary Records of the Sixth Meeting’ UN Doc TD/​III/​C.2/​SR.6, 63. 98 ibid 79–​80 (International Chamber of Commerce). 99 UNCTAD, ‘Proceedings of the UNCTAD Third Session, vol 1’ (n 75) Annex VI, Report of the Second Committee 191. See especially Second Committee, ‘Summary Records of the Seventh Meeting’ UN Doc TD/​III/​C.2/​SR.7, 70 (UK), 84 (Denmark); Second Committee, ‘Summary Records of the Eighth Meeting’ UN Doc TD/​III/​C.2/​SR.8, 95–​96 (Australia). 100 Second Committee, ‘Summary Records of the Seventh Meeting’, UN Doc TD/​III/​C.2/​SR.7, 86 (France).

Rival Worlds and the Corporation  157 the restrictive business practices of private enterprise . . . The time had therefore come to study the problem and to take measures at the national and international level’.101 India, despite having taken measures to align foreign investment with national priorities, found it had ‘not yet been possible to control entirely the adverse effects of private foreign investments’.102 And Chile noted that, while the developing countries’ introduction of legislation was part of the solution—​and the Andean Group’s experience was instructive in this respect—​neither domestic nor regional laws would be sufficient to assert control unless working in concert with international measures.103 These sentiments found echoes in those expressed by some European nations—​Belgium noted that in many cases domestic legislation rendered public authorities ‘powerless’ to intervene in corporate activities, and new legal principles were needed to supplant it.104 In this way, delegates framed both their desire for, and ambivalence toward, a new international regime governing restrictive business practices by reference to not only economic or political, but legal (im)possibility.105

2.  Debate in the Third Committee on private foreign investment In the Third Committee the following week, a rather more heated debate took place over private foreign investment and the role of multinational corporations in the world economy.106 The debate centred on the draft resolution of the G77 on Foreign Private Investment in its Relationship to Development.107 This resolution expressed concern about evidence of financial outflows caused by private foreign investment, its ‘excessive’ use of local financial resources, and the disruption of

101 ibid 67. See also at 62–​63 (Bolivia), and 65 (Bulgaria); Second Committee, ‘Summary Records of the Seventh Meeting’, UN Doc TD/​III/​C.2/​SR.7, 69–​70 (Philippines). 102 Second Committee, ‘Summary Records of the Seventh Meeting’ UN Doc TD/​III/​C.2/​SR.7, 72–​73. 103 Second Committee, ‘Summary Records of the Eighth Meeting’ UN Doc TD/​III/​C.2/​SR.8, 97 (Chile). Colombia and Tunisia also called for the creation of guidelines or an international code of conduct governing the behaviour of multinationals:  Second Committee, ‘Summary Records of the Sixth Meeting’ UN Doc TD/​III/​C.2/​SR.6, 65 (Colombia); Second Committee, ‘Summary Records of the Seventh Meeting’ UN Doc TD/​III/​C.2/​SR.7, 89 (Tunisia). It is unclear from the debates whether these were intended to be binding or not. See, further, United Nations Department of Economic and Social Affairs, The Impact of Multinational Corporations on Development and on International Relations, UN Doc E/​5500/​Rev.1,  54–​55. 104 Second Committee, ‘Summary Records of the Seventh Meeting’ UN Doc TD/​III/​C.2/​SR.7, 83. 105 Ultimately, the disagreement over substance was deflected through the commissioning of the Ad Hoc Group of Experts on Restrictive Business Practices, which was composed of both governmental experts in the field of international trade and experts from ‘competent international organizations’ such as WIPO and the International Chamber of Commerce. International trade unions were not named in the resolution: UNCTAD Res 73 (III) (19 May 1972). 106 UNCTAD, ‘Proceedings of the UNCTAD Third sessions, vol 1’ (n 75) 233. 107 Group of Seventy-​Seven Developing Countries, ‘Foreign Private Investment in Its Relationship to Development’, Draft Resolution by G77, UN Doc TD/​III/​C.3/​L/​5.

158  Sundhya Pahuja and Anna Saunders competition by foreign companies operating in the markets of developing countries.108 In short, the problem was that private foreign investment was not performing what the resolution took to be its proper function, namely to ‘facilitate the mobilization of internal ressources [sic], generate inflows and avoid outflows of foreign reserves, incorporate adequate technology, and enhance savings and national investment’.109 Instead, it was impeding rather than assisting in the project of development. The draft resolution therefore urged developed countries to ‘take the necessary steps to reverse the tendency for an outflow of capital’.110 During this debate, views on whether foreign private investment was inherently beneficial or not also split between three main positions. One group of developing countries was hopeful that multinational corporations could contribute to development. Zaire, for instance, had ‘made sacrifices’ to encourage and facilitate foreign private investment ‘in the hope that at a second stage investment would help to raise the level of living of the population’.111 Other countries shared this hope, but were more wary of making concessions, feeling that foreign private investment could further national development only ‘so far as the government succeeded in turning it to good account . . . and in so far as the investors played the host country’s game, so to speak’.112 Still others within this grouping were in the process of establishing regional schemes to regulate foreign investment in order to capitalize on its benefits while recognizing its potentially harmful aspects. For example, the Council of the Cartagena Agreement recognized the precariousness of depending on the benevolence of investors, and had adopted a joint regime for foreign investment that ‘reserved the right to authorize foreign investment after having evaluated the conditions in which it was offered and its conformity with the development priorities of the country in which the capital was to be invested’.113 Notwithstanding different approaches to corporate control, what was common was an implicit acceptance of the potentially beneficial link between foreign investment and development.

108 See, for background, the report before the Committee for consideration: Sanjay Lall, ‘Balance-​of-​ Payments Effects of Private Foreign Investment in Developing Countries: Summary of Case Studies in India, Iran, Jamaica and Kenya’, UN Doc TD/​134/​Supp.1. 109 For the text of the draft resolution, see UNCTAD, ‘Proceedings of the UNCTAD Third Session, vol 1’ (n 75), Annex VI, 239, UN Doc TD/​III/​C.3/​L/​5, 2. 110 ibid 3. This mirrors exactly the language found in the Lima Declaration: UNCTAD, ‘Proceedings of the UNCTAD Third Session, vol 1’ (n 77) Annex VIII, ‘The Declaration and Principles of the Action Programme of Lima’ (7 November 1971) 391. 111 Third Committee, ‘Summary Records of the Fourteenth Meeting’ UN Doc TD/​III/​C.3/​SR.14, 136. 112 Third Committee, ‘Summary Records of the Sixteenth Meeting’ UN Doc TD/​III/​C.3/​SR.16, 164 (Cameroon). 113 The Cartagena Agreement, signed in 1969, created the customs union (initially comprising Bolivia, Colombia, Chile, Ecuador, and Peru) then known as the Andean Pact, and now referred to as the Andean Community: Agreement on Andean Subregional Integration (signed 26 May 1969) 8 ILM 190. Foreign purchasing of national enterprises, which was often considered to be of no benefit to the host country, was subject to ‘special rules’. See Third Committee, ‘Summary Records of the Fourteenth Meeting’ UN Doc TD/​III/​C.3/​SR.14, 140–​41.

Rival Worlds and the Corporation  159 A second group considered that foreign private investment was critical for development and that the potential harms that worried the G77 were overstated. This view was often accompanied by calls for any international regulation to further accommodate the interests of the investor. Even where it was accepted that countries might wish to protect their legitimate interests, ‘reasonable stability’ in conditions within the recipient country was necessary for investment and ‘[s]‌udden and arbitrary changes in the conditions under which foreign private investors operated could only be counter-​productive’.114 The US likewise asserted that private investment was critical to development and that certain actions of developing countries—​such as ‘expropriations in one or another form’—​were in danger of reducing the pool of investment available to other developing states.115 As the question of whether to invest was up to the private investor, the critical role of ‘host’ governments was to work out a ‘mutually beneficial arrangement’ which would ensure the security of that investment.116 Already, moves had been made at the institutional level to facilitate an increase in volume of foreign private investment.117 The promise of this increase came, then, with strings attached—​the implicit replacement of official development assistance with foreign private capital, and the injunction to accommodate the interests of corporations as its carrier. A third group resolutely opposed the idea that foreign private investment might be considered to perform the role of a catalyst for development—​a role more properly performed by official development assistance. The USSR, for instance, asserted that investment ‘by its very nature’ was incapable of complying with the conditions outlined in the draft resolution of conforming to national priorities and stimulating capital formation.118 History had shown developing countries that in many cases, investment had led to ‘the complete exhaustion of their economies’.119 Cuba added that the case studies before the committee showed the direct effects of foreign private investment on the balance of payments to be overwhelmingly negative—​even if the net effect was judged to be favourable.120 In addition, companies’ demands for guaranteed conditions for their investment ‘implied a violation of national sovereignty’.121 For this group, more research was needed to understand the phenomenon of capital outflows linked to foreign private investment, and how it 114 Third Committee, ‘Summary Records of the Sixteenth Meeting’ UN Doc TD/​III/​C.3/​SR.16, 160. 115 ibid 157–​58. The critical and expanding role of private investment in the development process, for the US, eclipsed that of the limited and finite flows of ‘official development assistance’. 116 ibid 158 (United States). 117 For example, Belgium had established a financing corporation to provide capital for investment in developing countries: Third Committee, ‘Summary Records of the Fifteenth Meeting’ UN Doc TD/​III/​ C.3/​SR.15, 152 (Belgium). 118 Third Committee, ‘Summary Records of the Fourteenth Meeting’ UN Doc TD/​III/​C.3/​SR.14, 129. 119 ibid, 129. 120 ibid 137. However, given the assumptions underpinning the report, Cuba also questioned the extent to which their findings were reliable. In addition, the report paid no attention to the negative impact of investment on aspects of economic life beyond the prism of balance-​of-​payments effects: ibid 138. 121 ibid (Cuba).

160  Sundhya Pahuja and Anna Saunders impacted the states of the global South and made profit for the companies of the global North.122 In the meantime, the USSR encouraged developing countries to take advantage of its offer of credit on terms unaccompanied by ‘any political or economic tie or condition’.123 Against these divided views on how to understand the relationship between development and foreign private investment, states coalesced into two broad stances on the best way to control or otherwise regulate it. This replicated the divide playing out in relation to restrictive business practices in the Second Committee. One grouping—​which included France, West Germany, and the UK—​insisted that host states were always free to establish rules governing the conditions under which companies could invest. Although it was difficult for countries to exercise ‘authoritarian control’ over investors, ‘[c]‌ontrol of private investment nevertheless remained one of the essential attributes of the sovereignty of the host countries, which were free to fix their own rules’.124 West Germany explicitly tied the disagreement over the empirical question (whether investment is good for development) to the question of the appropriate regulatory jurisdiction, noting that as it was impossible to determine as a matter of principle whether foreign investment was good or bad for development, ‘each case should be separately investigated’ by the host state.125 This move is illustrative of the way in which the argument about the empirical question was being reshaped toward the impossibility of international regulation. Similarly, the UK insisted that ‘each investment proposal needed to be looked at on its own merits’ and that where foreign investment had deleterious effects, this was generally due to the failure of the host country to properly screen the investment.126 In other words, it was for that state to make a decision about whether or not it wished to welcome the investment. For this group, locating this decision in the host state meant that the decision and the legal frameworks structuring it were malleable.127 As ‘it was impossible to lay down formal rules on an international basis to regulate foreign investment’, for these states the better legal vehicles were bilateral agreements.128 Another grouping—​that included Algeria, Venezuela and Guyana—​resisted this view, each articulating in different ways a common opposition to the idea that 122 ibid 129 (USSR). 123 ibid 130. As opposed to the terms of the capitalist countries, which ‘often resembled in nature the relations that existed previously between the metropolitan countries and their colonies’: ibid 131. 124 Third Committee, ‘Summary Records of the Fifteenth Meeting’ UN Doc TD/​III/​C.3/​SR.15, 151. 125 ibid 148, 149. 126 Third Committee, ‘Summary Records of the Sixteenth Meeting’ UN Doc TD/​III/​C.3/​SR.16, 159–​ 60. In other words, they put forward the view that the multinational corporation ‘will only be as useful or as dangerous as the host country allows it to be’: see Fieldhouse, The West and the Third World (n 7) 285. 127 Hence, the UK warned that it would be undesirable for the Andean regional framework to crystallize into ‘rigidity’ and to impede foreign private investment from being able to do its work: Third Committee, ‘Summary Records of the Sixteenth Meeting’ UN Doc TD/​III/​C.3/​SR.16, 160 (UK). 128 ibid 160–​61.

Rival Worlds and the Corporation  161 the domestic sphere, on its own, offered a way to regulate the activities of corporations. Algeria, for instance, endorsed a unified system for the supervision and control of multinational corporations.129 For Venezuela, ‘foreign private investment had been the cause of the relationships of colonialism and dependency’ that were imbricated in the current international economic order. Its delegate proposed that foreign private investment should be governed in accordance with the ‘principle of international social justice’ geared to the priorities needs of host countries. However, he considered that decision-​making centres about those priorities should be located in the host countries themselves, pushing back against the incipient hierarchization of authority at play in the debate.130 Guyana, on the other hand, advocated action both ‘at the national level and also by pressing for a new strategy for development within the group of 77’.131 Recognizing that developed countries had a vested interest in existing structures of economic relations within developing countries, the solution lay in maintaining and reinforcing solidarity in the developing world itself.132 So, although a common theme was that the international was implicated in the relationship of dependency between host states and investor corporations, no common solution or vision was articulated as a means for resolving this dilemma. In the end, the Third Committee was unable to reach agreement on the draft resolution.133 The Conference considered the draft resolution in its plenary session and after amendments, adopted the resolution by seventy-​three votes to three, with twenty-​three abstentions.134 The final resolution recorded the concerns of developing countries over the outflow of capital as a result of foreign investment and the failure of foreign investment to generate wealth.135 However, a number of countries emphasized their decision not to take part in the vote,136 while the UK and the US voted against the resolution on the grounds that it did not give enough weight to the merits of private investment.137 Ultimately, the resolution affirmed only the right of developing countries to regulate foreign investment within their own legal systems, and urged developed countries to prevent the outflow of capital from the countries in which multinational corporations did

129 Third Committee, ‘Summary Records of the Fifteenth Meeting’ UN Doc TD/​III/​C.3/​15, 153. 130 ibid 157. 131 Third Committee, ‘Summary Records of the Sixteenth Meeting’ UN Doc TD/​III/​C.3/​SR.16, 163. 132 ibid. 133 UNCTAD, ‘Proceedings of the UNCTAD Third Session, vol 1’ (n 75) Annex VI, ‘Report of the Third Committee’ 106. 134 UNCTAD Res 56 (III) (19 May 1972); UNCTAD, ‘Proceedings of the UNCTAD Third Session, vol 1’ (n 75) Annex II, ‘Action with Respect to Reports’ 143. 135 UNCTAD Res 56 (III) (19 May 1972) operative paragraphs 2 and 3. 136 UNCTAD, ‘Proceedings of the UNCTAD Third Session, vol 1’ (n 75) Annex I, ‘Observations and Reservations by Delegations on the Decisions of the Conference’ 122 (China), 122 (Denmark), 130 (Switzerland). 137 ibid 132 (UK), 134 (US).

162  Sundhya Pahuja and Anna Saunders business.138 It therefore did not envisage any solution based on international, rather than domestic, legal authority.

IV.  A culmination of sorts? The Group of Eminent Persons report Despite the lack of a consensus on international action at UNCTAD III, the question of the international regulation of corporations would resurface in the work of the Group of Eminent Persons (the Group) set up by the UN Economic and Social Council (ECOSOC). The setting up of the Group marked the shift from UNCTAD to ECOSOC as a venue for the realization of the aspirations of the G77 in response to the perceived failures of UNCTAD. The third world had perceived a critical need to establish a comprehensive international trade organization, recognizing that ‘world economic problems could not be compartmentalized’ and that fragmenting deliberation on key economic issues could prejudice their interests.139 However, the G77’s attempt to make UNCTAD more representative and to transform it into a forum for the negotiation and adoption of multilateral trade treaties had been stymied.140 Accordingly, following the failure of UNCTAD III to move toward internationalized regulation, Chile had introduced a proposal that a group of persons ‘of the highest moral and intellectual character and of international repute in their various fields’ be appointed to study the problem of multinational corporations in depth.141 As Chile proposed it, the group would be constituted by members ‘from developed market-​economy countries, developing countries and socialist countries, and [would] include representatives of student movements whose future was at stake’.142 An aspect of the group’s task would be to remedy the gap identified by the Under-​Secretary General at the Third Session of UNCTAD: the ‘lack of any arrangement for the supervision and regulations of the activities of multinational corporations’.143 But like the previous deliberations in UNCTAD, the ensuing debate in the Council144 was tellingly illustrative of ‘the two aspects of the 138 Through measures such as offering tax exemptions for reinvesting profits: UNCTAD Res 56 (III), (19 May 1972) operative paragraphs 1 and 4. 139 UNCTAD, ‘Proceedings of the UNCTAD Third Session, vol 1’ (n 75)  Annex VI, ‘Report of Working Group 1’ 301 (Brazil). For the opposing view, see the statement by the GATT representative at UNCTAD III (urging the maintenance of an effective division of responsibility: ibid 301. 140 ibid 299 (comments by the representative of the G77). For the G77’s proposed alterations to the institutional arrangements of UNCTAD, see United Nations Commission on International Trade Law, Yearbook Volume II (1976) UN Doc TD/​III/​WG.l/​L.l/​Rev.l. For the resolutions ultimately adopted, see UNCTAD Res 80(III) (20 May 1972); UNCTAD Res 81(III) (20 May 1972). 141 Economic and Social Council, ‘1831st meeting’ (14 July 1972), UN Doc E/​SR.1831 9. 142 ibid 9. 143 See UNCTAD, ‘Summary of the Statement by P De Seynes’ (n 72) 57. 144 ESC, ‘1831st–​1834th meetings’ (14–​25 July 1972) UN Docs E/​SR.1831–​4.

Rival Worlds and the Corporation  163 problem of multinational corporations: on the one hand, “aberrations” and “distortions” . . . and on the other, the undeniable role played by those corporations in . . . the provision of the capital needed for economic development’.145 The strongest supporters of such a study thought that companies should not remain unregulated by international law with regard to activities that did not coincide with the interests of developing countries. Mexico, for instance, supported the implementation of a binding code of conduct on the basis that ‘the increasingly complex structure of the world economy had given birth to multinational corporations and the only limit to their expansion was the question of profitability’.146 Peru was similarly concerned with the increasing power of corporations and their potential to infringe on sovereignty. It felt that there was an ‘obvious need for some measure of control over their activities or some international code of conduct for them’;147 the USSR agreed.148 Its representative argued that recent events had demonstrated that ‘economic problems could not be considered in isolation from their political aspects,’ referring particularly to the ability of large multinational companies to influence, or even alter the composition of, governments of States.149 Although the problem was an old one, he said, the difference now was that the countries being affected were ‘no longer powerless to defend their interests against the multinational corporations’.150 The proposed study also found significant support among a number of Western countries (other than the US), which had begun to witness the pernicious effects of corporate activity on both their own economies and on their foreign relations.151 As such, they were eager for the study to assess ‘the impact of multinational corporations’ activities on both developed and developing countries’.152 Even the UK, which had opposed the resolutions put forward at UNCTAD III, felt the study would be useful for this reason.153 However, these states wanted the study to ‘be of a

145 Economic and Social Council, ‘1832nd meeting’ (20 July 1972) UN Doc E/​SR.1832, 87 (Italy). By ‘aberrations’, the Italian representative referred to incidents such as the interference in the Chilean election. 146 Economic and Social Council (n 141) 12. 147 ibid 43. 148 ibid 53. 149 Appearing to refer to the activities of ITT in Chile, but also noting that other companies far exceeded the economic clout of ITT—​such as General Motors, whose sales in 1971 were higher than the GNP of 110 of the then-​136 UN member-​states: Economic and Social Council (n 141) 18–​21. The representative of Poland also denounced corporate promotion of ‘the interests of neo-​colonialism and [interference] openly in national politics’: Economic and Social Council (n 145) 33. 150 Economic and Social Council (n 141) 53. 151 For example, Denmark, Spain, France, the Netherlands, and especially Poland. The external relations point was emphasized by New Zealand, but by few others: Economic Committee, ‘586th meeting’ (26 July 1972) UN Doc E/​AC.6/​SR.586, 229 (New Zealand). 152 ibid 229 (Denmark). 153 Economic and Social Council (n 141) 41. Although Argentina was careful to point out that the matters meriting inclusion which concerned developed market-​economy countries—​monopolies and inflation—​were very different from those that concerned socialist or developing countries.

164  Sundhya Pahuja and Anna Saunders technical character and . . . not go into the political implications of the issue’154 lest it meant ‘foregoing the concentration and pooling of means and efforts which had become necessary for economic progress’.155 This was firmly opposed by Chile, as the examination of the impact of multinational corporations on international relations was ‘an essential aspect’ of the proposal.156 In its final form, the resolution establishing the Group of Eminent Persons contained elements of both the technical, developmentalist approach to company–​ state–​international law relations, as well as Allende’s approach, which recognized companies as independent, political, international actors. It proposed that the group would ‘formulate conclusions which may possibly be used by Governments in making their sovereign decisions regarding national policy in this respect, and to submit recommendations for appropriate international action’, leaving indeterminate any eventual mechanism through which international law might relate to the questions at hand.157 At the same time, the views that had remained unchallenged about the intrinsic value of ‘development’, fuelled by private foreign capital, were inscribed into the group’s terms of reference. This orientation was further cemented by the make-​up of the Group itself, criticized by Chile for its failure to include trade union leaders or academics from various fields,158 and for its over-​representation of directors of private companies.159 Such criticisms were dismissed by the Under-​Secretary-​General for Economic Affairs, who argued that, rather than focusing on the Chilean experience, ‘it was necessary to look to the future . . . to ensure that multinational corporations played a positive role in the developing countries’.160 As the US put it, questions of equitable geographical distribution and corporate representation were of minimal relevance given that all members, regardless of their origins, had a shared ‘bias toward development’.161

154 ibid 44 (France), which also contains the comments by the observer for the Netherlands, who ‘assumed that the proposed study was intended to be entirely objective’. 155 Economic and Social Council (n 145) 25 (Spain). 156 Economic Committee (n 151) 219. 157 ESC Res 1721 (28 July 1972) 1. 158 Specifically referring to the fields of political science, international trade, economics, and international affairs: Economic Committee, ‘630th meeting’ (15 May 1973) UN Doc E/​AC.6/​SR.630, 167. 159 ibid 167. The Chilean experience had continued to provide evidence that developing countries were ‘extremely vulnerable to the activities of imperialist multinational corporations’—​since the passing of the resolution, the US Senate Sub-​Committee examining the ITT’s activities in Chile had uncovered irrefutable evidence of what Allende had described, while at the same time the Kennecott Company had taken steps to embargo the purchase of Chilean copper in Europe: ibid 168–​170. 160 Economic Committee, ‘632nd meeting’ (16 May 1973) UN Doc E/​AC.6/​SR.632, 214. 161 ibid 218. Although these states and others, including Algeria, Hungary, and Mongolia, would continue to express their concerns later in that year, no change was made to the candidates thus far selected apart from the addition of Mario Trindade (Brazil), Vice President of the National Bank of Commerce. See UN Secretary General, ‘The Impact of Multinational Corporations on the Development Process and on International Relations:  Progress Report of the Secretary-​General’ (11 May 1973)  UN Doc E/​5334. On the concerns of some states about the composition of the group, see Economic Committee, ‘651st and 652nd meetings’ (27–​30 July 1973) UN Docs E/​AC.6/​SR.651–​2

Rival Worlds and the Corporation  165 The Group met between September of 1973 and March of 1974 and eventually issued a report on 22 May 1974 entitled the ‘Impact of Multinational Corporations’, recommending that a Commission on multinational corporations be established to assist the work of the Economic and Social Council.162 The complexity and breadth of the issue required a ‘continuing elucidation and analysis of the problems involved, based on more information, professional studies and consultations with the various parties concerned’.163 The Commission was to be composed of members serving in an individual capacity, hailing from both developed and developing states and from a variety of professions.164 It would meet at least once a year and act as a ‘focal point’ through which the Economic and Social Council could debate, consider, and respond to issues posed by multinational corporations.165 The proposed terms of reference for the Commission were, for the most part, open-​ended:  receiving reports, providing a venue for exchange of views, and building ‘technical capacity’.166 Partly to facilitate this, the Group proposed that an information and research centre on MNCs be established to assist the Commission.167 The Commission would now also serve to facilitate a process which had been ongoing in other fora—​namely, the ‘adoption of specific arrangements or agreements in selected areas pertaining to the activities of multinational corporations’ (such as restrictive business practices or transfer of technology).168 In contrast to these piecemeal efforts, however, it should act holistically to ‘evolve a set of recommendations which, taken together, would represent a code of conduct for Governments and multinational corporations’.169 Although there was significant difference of opinion about what such a code should entail, the Group clarified that, in its view, the proposed code of conduct should not be compulsory in character but would ‘act as an instrument of moral persuasion’ for multinational corporations.170 The more controversial aspect of the Commission’s task was to ‘explore the possibility of a general agreement on multinational corporations, enforceable by appropriate machinery, to which participating countries would adhere by means of an international treaty’.171 Although this was included in the set of recommendations 162 Department of Economic and Social Affairs, The Impact of Multinational Corporations on Development and on International Relations (1972) UN Doc E/​5500/​Rev.1 19, 52 (hereafter Department of Economic and Social Affairs, ‘Group of Eminent Persons Report’). This recommendation was fully endorsed by the UNCTAD Secretary-​General: ibid 6. 163 ibid 52. 164 ibid 57–​ 58. The rationale for this, the Secretary-​ General’s report stated, was that a non-​ governmental body would ‘facilitate the consultation process and encourage greater involvement’, including by private parties. In fact, the Secretary-​General went so far as to suggest that the achievements of the Group itself would likely not have been possible had it been constituted by states: ibid 7. 165 ibid  57–​58. 166 ibid 57, recommendations (b) and (c), 36–​8, 53–​4. 167 ibid  53–​4. 168 ibid 57 recommendation (d). 169 ibid 57 recommendation (e). 170 ibid 55. 171 ibid 57 recommendation (f).

166  Sundhya Pahuja and Anna Saunders transmitted to ECOSOC, the Group itself considered that it would be ‘premature to propose serious negotiations on such an agreement’ as significant preparation was required.172 In the meantime, the Group reasoned, action on more ‘specific issues’ could take place, such as taxation or labour arrangements which could be concluded without such delay.173 In this way their conviction that ‘the benefits which can be derived from multinational corporations are fully realised’ could be implemented.174 As one might have expected given the temperature of the debates leading up to the report, the response was also lively. One immediate response by some within the Group itself related to something understood to have been lost in translation between a background document and the report itself. This document, prepared by the Department of Economic and Social Affairs of the UN Secretariat to assist the work of the Group,175 had aimed to ‘clarify various concepts pertaining to multinational corporation, provide basic data on their size, geographical distribution, industrial structure and ownership patterns, and assess their dimensions in the world economy’.176 However, in its final form, it went further, assessing the multinational corporations’ ‘impact on international relations, and on home and host countries, including tensions that may develop between them and these countries’.177 Unlike the report of the Group of Eminent Persons, the background document openly stated that the ‘political and social dimensions of the problem of multinational corporations [were] only too apparent’. To illustrate these, it meticulously laid out a series of facts, including those concerning the pattern of corporate distribution, and concluded that it closely mirrored the pattern of former colonial ties.178 The international economic system that had been developed earlier in that century further complicated this picture, as the porousness of national economic boundaries no longer corresponded to political–​legal conceptions of national sovereignty.179 The critical question for the writers of that background report, therefore, was not what benefit could be derived from the company as a carrier of investment, but ‘whether a set of institutions and devices can be worked out which will guide the multinational corporations’ exercise of power and introduce some form of accountability to the international community into their activities’.180 172 ibid 54. 173 ibid 54. 174 ibid 26. 175 ibid 3. It is unclear at whose request this report came about. 176 Department of Economic and Social Affairs, Multinational Corporations in World Development (1973) UN Doc ST/​ECA/​190, vi. 177 ibid vi. 178 ibid 1, 9. 179 ibid 3:  ‘However sacred and inviolable national sovereignty may be from the political point of view, few national boundaries correspond to economic demarcation lines and few states are self-​ contained economic entities’. 180 ibid 2. The report was strongly sceptical of the ability of non-​binding measures, such as the code of conduct proposed by the Group, to achieve this end: ibid 78–​79.

Rival Worlds and the Corporation  167 From comments made by members of the Group, it is clear the political–​ economic orientation of that document sat uneasily with the more technical and developmentalist orientation of the Group’s report. One delegate, Juan Somavia,181 suggested that the analysis contained in the background document should continue to live side by side with the report as a necessary complement to its perceived limitations.182 He criticized the ‘tendency of the report to concentrate on the micro-​ relationship between a multinational corporation and a given country’ and corresponding neglect of the corporation as situated within the history of international political and economic relations.183 In doing so, it was blind to the multinational corporation as ‘the expression of a . . . system whose values, basic orientations and general structure have stimulated their unprecedented expansion’.184 Another delegate, Ahmed Ghozali,185 pointed to the absence in the report of any mention of the events which had happened since the initiative had begun.186 First among these was the ‘Chilean tragedy’—​the coup in Chile and the death of Salvador Allende—​ perhaps what Allende had feared when he launched the initiative.187 For both Ghozali and Somavia, the divorcing of the problem of multinational corporations from both politics and history augured badly for third-​world autonomy and fairer international wealth distribution. When the report eventually came before the Economic and Social Council at its 57th session, the initial response to the recommendations of both the Group and the Secretary-​General was strikingly pragmatic.188 There was a difference in emphasis over the Commission’s most urgent programme of work: many states, as well as the representative from the International Chamber of Commerce,189 emphasized the importance of the (non-​binding) code of conduct. Others, such as India, considered that the body ‘should take up as a matter of priority the development of a [binding] regulatory framework’.190 And, although some states were

181 Later to be appointed Director-​General of the ILO. 182 Department of Economic and Social Affairs, ‘Group of Eminent Persons Report’ (n 162)  162 (comments by Juan Somavia, the Chilean Former Permanent Representative to the Andean Group, Former President of the Commission of the Cartagena Agreement, and Former Chairman of the Board of the Andean Development Corporation). See also the comments of Ahmed Ghozali on this point: ibid 103. 183 ibid 162. 184 ibid. 185 Then Minister of Energy and Investment of Algeria. 186 Department of Economic and Social Affairs, ‘Group of Eminent Persons Report’ (n 162) 103. Ahmed Ghozali was the President Director-​General of SONATRACH, an Algerian state-​owned company. 187 Also, developments in relation to energy and raw materials, which would have shed ‘essential light both on the role of multinational corporations and the machinery of their operations and on the problems and aspirations of the developing countries’: ibid. 188 ESC, ‘1901st meeting’ (4 July 1974) UN Doc E/​SR.1901, 71. See also ESC, ‘1902nd meeting’ (4 July 1974) UN Doc E/​SR.1902, 8 (Canada); ESC, ‘1903rd meeting’ (5 July 1974) UN Doc E/​SR.1903, 43–​44 (Mexico). 189 ESC, ‘1906th meeting’ (8 July 1974) UN Doc E/​SR.1906, 65. 190 ESC, ‘1903rd meeting’ (5 July 1974) E/​SR.1903, 35.

168  Sundhya Pahuja and Anna Saunders in favour of the commission being constituted by experts, as the Group had suggested,191 others felt strongly that it should be constituted by states, with experts playing a supplementary role.192 In short order, the Chairman of the Group presented the report to the Economic Committee. Given the limited time available to debate the report, both the UK and Canada proposed that the Committee confine itself to the ‘passages which concerned international machinery and action’.193 The debate that followed showed that states had by this time become committed to the establishment of the proposed Commission in one or another form.194 Only China voiced a concern that the report had failed to reflect the ‘plundering and exploitation of the developing countries perpetrated by the multinational corporations’ and that the recommendations of the report should be viewed with caution.195 The Economic Committee reached agreement on 1 August on a resolution deciding in principle to establish a permanent machinery ‘to assist the Council in dealing with the issue of transnational corporations’.196 The resolution convened a Special Intersessional Committee of the Council to more closely examine the report and the views of States on its recommendations.197 By 5 December 1974 the Intersessional Committee had unanimously recommended Resolution 1913 to the Council.198 That resolution would establish a forty-​eight-​member inter-​governmental body to be called the Commission on Transnational Corporations.199 It was to be composed of state-​appointed experts, and supported by an information research centre.200 Although the programme of work for the Commission remained relatively unchanged from the report of the Group, there was one notable difference: the task of creating an international treaty adequate to the problems that Allende had outlined had been dramatically de-​emphasized. Instead, the Commission was now to consider ‘possible arrangements or agreements on specific aspects relating to transnational corporations with a view to studying the feasibility of formulating a general agreement and . . . to consolidating them into 191 ESC, ‘1905th meeting’ (8 July 1974)  E/​SR.1905, 8 (Pakistan); ESC, ‘1906th meeting’ (8 July 1974) UN Doc E/​SR.1906, 11 (United Kingdom). 192 Economic and Social Council, ‘1901st meeting’ (n 188); see also 1905th meeting of the Economic and Social Council (8 July 1974) E/​SR.1905, 58 (Yugoslavia). Except for the Chilean representative, who did not feel it was necessary to establish the commission in order to deliver a ‘mandatory code of conduct’: 1911th meeting of the Economic and Social Council (11 July 1974) UN Doc E/​SR.1911, 12. 193 Economic Committee, ‘705th meeting’ (18 July 1974) E/​AC.5/​SR.705, 197 (Canada), 198 (United Kingdom). 194 Economic Committee, ‘708th meeting’ (19 July 1974) UN Doc E/​AC.6/​SR.708, 233. 195 Economic Committee, ‘707th meeting’ (19 July 1974) UN Doc E/​AC.6/​SR.707, 218. 196 Which was adopted without a vote the next day: ESC Res 1908 (LVII) (2 August 1974) 6. 197 ibid 7. 198 No summary records exist of the Committee’s deliberations, and the final consensus was reached through informal consultations:  1931st meeting of the Economic and Social Council (5 December 1974) UN Doc E/​SR.1931. See also Special International Committee, ‘Report of the Special Intersessional Committee’ (8 January 1975) UN Doc E/​5599. 199 ESC Res 1913 (LVII), (5 December 1974) 1. 200 ibid 4.

Rival Worlds and the Corporation  169 a general agreement at a future date’.201 The possibility of an enforceable agreement that could reimagine the place of the transnational corporation in the international order seemed remote.202

V.  ‘Our common success’: The establishment of the UNCTC and the Kissinger response to the ‘New International Economic Order’ By the time of the first session in March of 1975, the question of a treaty had fallen off the Commission’s programme of work altogether. Instead, efforts refocused on the proposed (and potentially non-​binding) ‘code of conduct’, to be taken up by the Commission as a matter of priority.203 However, the Commission’s preparation for negotiations on a code of conduct could only proceed through putting to one side two unresolvable questions. The first was the question of the enforceability or mandatory nature of the code, and the second was whether, under it, governments would also be subject to obligations.204 At around the same time, and as part of the ongoing efforts to establish the principles of a New International Economic Order (NIEO), the UNGA had resolved to hold a Special Session from 1 September 1975, on development and international economic cooperation.205 The purpose of the session was to consider ‘new concepts and options with a view to promoting effectively the solution of world economic problems, especially those of developing countries’.206 At the very forefront of the session was the US, the second state to speak.207 Then US Secretary of State Henry Kissinger had intended to be present, but was unable to attend. Instead, he wrote a speech that was read in his absence—​‘a programme of practical steps’ to address the concerns of the developing world.208 In contrast to the third world’s insistence on the continued presence of history, for Kissinger the moment was ruptural, representing a radical break with the past: the ‘global order of colonial power that lasted through centuries has now disappeared’.209 Even ‘the cold war

201 ibid 4, but cf the wording of the recommendations made by the Department of Economic and Social Affairs, ‘Group of Eminent Persons Report’ (n 162). 202 For the way in which this was taken up at the first session of the Commission, see Commission on Transnational Corporations, ‘Report on the First Session’ (17–​28 March 1975) UN Doc E/​5655. 203 ibid 2. 204 ibid 9. 205 This was in the wake of the Declaration at the UN General Assembly in 1974: ‘Declaration on the Establishment of a New International Economic Order’(1 May 1974) GA Res 3201 (S-​VI) UN Doc A/​RES/​3201(S-​VI). 206 UNGA, ‘2327th meeting’ (1 September 1975) UN Doc A/​PV.2327, 3 (Brazil), citing GA Res 3172 (XXVIII) (17 December 1963). 207 After Brazil ibid. 208 Kissinger served as US Secretary of State from 1973–​1977. 209 UNGA, ‘2327th meeting’ (n 206) 38.

170  Sundhya Pahuja and Anna Saunders division of the world into two rigid blocs ha[d]‌now also broken down’, and there remained, he said, only states united in the common endeavour of development.210 And yet third-​world solidarity was positioned in opposition to the inauguration of what could be a new era of ‘human progress’. The threat lay in the formation of the Non-​Aligned Movement, a ‘new bloc’ which was counter-​productive to this endeavour, engaging ‘in a kind of solidarity that often clearly sacrifices practical interests’.211 What was required to address the economic problems faced by all states was not division, said Kissinger, but ‘consensus, first and foremost, on the principle that our common development goals can be achieved only by co-​operation, not by the politics of confrontation’.212 The ‘transnational enterprise’ was among the most contentious of these lines of ‘political division’. The ongoing ‘controversy over their role and conduct’ that had continued in various forms and fora since Allende’s speech was ‘itself an obstacle to economic development’.213 In his view, ‘if the world community [was] committed to economic development, it [could] not afford to treat transnational enterprises as objects of economic warfare’.214 Nevertheless, Kissinger conceded that ‘the time [had] come for the international community to articulate standards of conduct’ for corporations, and acknowledged that the UNCTC, ‘had begun such an effort’. But for Kissinger, ‘transnational enterprises ha[d]‌been powerful instruments of modernization’, and ‘may well be one of the most effective engines of development’.215 And given that only ‘transnational enterprises’ could facilitate the solution to the problem of underdevelopment, standards should be formulated which applied both to the behaviour of corporations and to the governments that hosted them.216 The principles that Kissinger laid out underpinning these standards were extensive, but, two elements were key to the question of the transnational corporation. First was an insistence that corporate conduct should be governed by local, not international law. Transnational corporations were of course ‘obliged to obey local law’, and should ‘refrain from unlawful interference in the domestic affairs of the host country’, ‘respect local customs and employ qualified local personnel’.217 But second, in return, those corporations must receive a stable, apolitical environment in which to operate, characterized by equitable and non-​discriminatory treatment. And unlike corporate conduct governed by local law, ‘host states’ must accord transnational enterprises protection ‘in accordance with international law’.218

210 ibid. 211

ibid 44. ibid 47. 213 Ibid, 105. 214 ibid 119. 215 ibid 103. 216 ibid 108. 217 ibid 110. 218 ibid 111 (emphasis added). 212

Rival Worlds and the Corporation  171 In Kissinger’s account, these protections would be supported by a suite of international endeavours, including the harmonization of tax treatment, the promotion of arbitral procedures for the settlement of investment disputes, the reduction of restrictive business practices, and the multilateralization of the insurance of foreign investment.219 These would be underpinned by the ‘development of agricultural technologies’ for food production, ‘assistance to improve productivity and competitiveness’ in relation to non-​agricultural food production, and the assurance of future access to ‘borrowing in the [international] capital market’, which was already relied upon heavily in the Latin American countries.220 In essence, what Kissinger was mapping was a different kind of ‘new international economic order’ that drew for its authority on ‘development’, and the needs of the poorest ‘one billion people’,221 but which precisely contradicted in its every element the other ‘New International Economic Order’ that the global South was simultaneously proposing . At the centre of this map, stabilized by the failure to operationalize opposition to the investment-​as-​development shibboleth, was the assertion of the impossibility of international legal control of the company. And as we know now, Kissinger’s map was prefigurative of what was to come.

VI.  Conclusion Much is at stake in how we narrate past struggles. Many conflicts between different groups of people may be recounted either as political contestations over the ‘proper’ meaning of things within a pre-​constituted frame, or as more radical struggles over the frame of reference through which meaning is to be determined. The stakes are particularly high when jurists are involved, for when we write about ‘law’ in the context of struggle, we are also participating in the construction, diffusion, and stabilization of the authority of the ‘law’ in the name of which we write.222 The problem is especially acute for international lawyers who sit perennially at the crossroads of difference, or at the point of encounter between, plural traditions and multiple laws.223 When international lawyers write about struggles over and around ‘international law’ as though the battle were self-​evidently a question of politics, empirical fact, content, legitimacy, or a bid for ‘inclusion’, rather than (also) a meeting of, and struggle between, different legal traditions or different laws, we join in a project of both authoring ‘international law’, and authorizing that particular international law. When such struggles are in the past, our retrospective 219 ibid 112–​118. 220 ibid 84. 221 ibid 165. 222 Not for nothing does ‘doctrine’/​la doctrine (as in ‘teachings’) have an ambiguous etymology and ongoing life, signalling ‘the rules’ in English, but ‘scholarly writings’ in French. 223 Pahuja, ‘Laws of Encounter’ (n 4); Pahuja, ‘Letters from Bandung’ (n 4).

172  Sundhya Pahuja and Anna Saunders acts of authorization take on a teleological cast,224 and participate in practices of international legal historiography through which encounters—​whether diplomatic, developmental, or genocidal—​between radically different traditions of law, are ultimately smoothed over into a story of the progressive expansion, if not the ‘universalization’ of ‘one’ international law. In the battles over the relationship between states, corporations and international law, Allende’s radical critique of the corporate form, the company’s historical exercise of political authority, its capacity to travel, and the power that capacity engendered were taken up in ways which planted the seeds for the adverse effects of corporate activity to be exceptionalized, for foreign investment to be normalized, and for private capital flows to be related axiomatically to ‘development.’ These discursive shifts both effected and were reinforced by the stabilization of particular legal forms, including the institution of private property and the ‘private’ corporation whose legal personality could travel across national borders. In turn, these reframings began to legitimize what was later to become an article of faith in many quarters—​that the core, ‘normal’, activity of corporations was unquestionably ‘good’, and that a sphere of corporate freedom of action was therefore needed. What our story reveals is that as the experiential, historical knowledge being insisted upon by the second and third worlds gave way to the ‘expert’ knowledge generated in the first world, the effects of corporate activity and private foreign investment came gradually to be redescribed as apolitical questions, and the difficulties came slowly to be understood as questions of technique, rather than as challenges of one political agenda —​and it vision for international law —​to another. Debates about regulation accordingly became increasingly technical, conducted among gatherings of experts and business leaders, and cloistered from political scrutiny.225 Questions about the ways in which the activities of powerful corporate actors engaged fundamental questions about international relations, as well as how to live and promote a good life, grew increasingly distant until they seemed to disappear altogether from the horizon of institutional concern. And yet slowing down our study of this moment reveals that much of what was at stake then remains so today, and that as long as they are imaginable, other worlds are still possible.

224 Richard Drayton, ‘Where Does the World Historian Write From? Objectivity, Moral Conscience and the Past and Present of Imperialism’ (2011) 46 Journal of Contemporary History 671, 671. Drayton was writing of contemporary history as an idea, but the same can be said of contemporary histories of international law. 225 David Kennedy tells a contemporary story of this transformation of politics and government to expertise and governance in World of Struggle. The generalization of this transformation is perhaps an example of the way in which ‘we are all developing countries now’. We borrow this phrase from Kerry Rittich.

Rival Worlds and the Corporation  173

VII. Epilogue The corporate phase of the empire remains, though not in its old form; its pre-​colonial form has mutated into post-​colonial corporate rule, almost as if the colonial period was an interregnum in the continuity of corporate rule. Ngũgĩ wa Thiong’o226 Periodization is always an argument, never a fact. The years between 1955 and 1974 repay a slow rereading but perhaps not for the reasons we might imagine. In the incipient telos implied by the two dates, 1974 stands as the ‘culmination’ of the initiative launched at Bandung in 1955. And the twin declarations of the New International Economic Order 227 and the Charter of Economic Rights and Duties of States228 seem like the ‘high water mark’ of the Bandung spirit. In that story, the high tide of solidarity suddenly retreated before the tsunami of the debt crisis, which broke close to a decade later. But by contemporaneous accounts, the decades moved slowly. And the demand for a wholesale ‘new international economic order’ seems to have become necessary in part because the initiatives for self-​help and international reorganization taken by the third world were strongly resisted by the first world. The ‘spirit of Bandung’ is perhaps what kept those initiatives alive, displacing first-​world resistance to third-​world change through struggles that moved into different fora and morphed into different forms. When we move slowly through the archive of the two decades at hand, we see that these years may perhaps be better read as a time during which the third world was attempting to assert its authority on the international level, and specifically a capacity to decide, but in which the water was rising perilously all the time. For the battle over transnational corporations, the arc between 1955 and 1974 is both particular and generalizable. The creation of the UNCTC would appear to have been a victory of sorts, but it failed to produce the collective state action sought by the third world to regulate the conduct of multinational corporations. The UNCTC was quietly put to rest in 1993, folded into the UNDP as part of the ‘Division on Investment and Enterprise.’ Today, that particular attempt to establish a conversation at the UN about multinational corporations is almost invariably forgotten. When it is remembered at all, it is characterized as an ill-​fated attempt to assert a third-​world sovereign jurisdiction against an international jurisdiction, with

226 Ngũgĩ, War Zone (n 13) 18. 227 UNGA, ‘Declaration on the Establishment of a New International Economic Order’ (1 May 1974) GA Res 3201 (S-​VI) UN Doc A/​RES/​3201(S-​VI). 228 UNGA, ‘Charter of Economic Rights and Duties of States’ (12 December 1974) GA Res 3281 (XXIX) UN Doc A/​RES/​3281(XXIX).

174  Sundhya Pahuja and Anna Saunders all the hierarchies of value that characterization implies. The story is now largely retold (for better or worse) as ‘sovereignty’ versus international ‘community’. But perhaps more accurate than both that story and a narrative of the ‘failure’ of the initiative is a story of the eventual inversion of what was being attempted. Not a simple ‘domestic’ versus ‘international’ story, but an attempt to put different matters into the basket of ‘domestic’ versus ‘international’, and with differential consequences. As it emerged from formal empire, the third world sought to assert authority over private property in the national realm, and to internationalize the capacity to regulate corporate conduct as a response to the essential rootlessness of the multinational corporation. But what we have seen during the period from the end of the Cold War to the present is the internationalization of the protection of private property through an emerging regime of ‘international investment law’, and the relegation to the national sphere of the regulation over corporate conduct, along with the vulnerabilities and collective action problems that brings. Tracing the story beyond the year 1974229 reveals that the narrative arc is not that of an arrow that is shot up and falls to the ground, but the arc of the boomerang, in which we launch something into the world and ‘it comes back and hits us in the face.’230 This is the narrative arc of tragedy.

229 Sundhya Pahuja, ‘The Changing Place of the Corporation in International Law’ (Hersch Lauterpacht Memorial Lectures, University of Cambridge, March 2018). 230 Simon Critchley, ‘Critchley Explains Tragedy’s philosophy’ (Brigham Young University Humanities 21 February 2014) accessed 7 December 2018. We owe this reference to Adil Khan.

7

The Battle Continues Rebuilding Empire through Internationalization of State Contracts Muthucumaraswamy Sornarajah

I. Introduction Even as the triumph of the liberation movements of Africa and Asia were succeeding through the ending of empire, international lawyers of the former centres of imperialism were creating new structures of domination to ensure that their control over the wealth and resources of the developing world continued. Investment and trade were the purposes of empire. The British and Dutch East India Companies and their counterparts in other parts of the colonial world justified their entry and later control of lands through conquest on the basis of investment and trade. As in the earlier period of Spanish expansion, jurists of the period justified these adventures on the basis of a natural right to trade and exchange commodities on the ground that all people did not have access to the same types of resources in their lands. 1 In terms of power, it was easier to conquer lands with plenty of resources than to carry out equal exchanges; the former would ensure unfettered access. When conquest was accomplished, international law was fashioned in such a manner as to retain control over the subject people of the colonies. They were denied personality in international law so that they could not formally articulate any rights on the basis of an artificial standard of civilization that was purportedly enjoyed only by the European states.2 The standard of civilization was employed as a shifting standard that enabled the imperial powers to decide when a foreign people they had colonized were entitled to be released from imperial control.3 1 As Suarez and Vittoria did in the earlier stage of Spanish expansion in Latin America, Grotius and other writers used trade and investment as the reasons for colonial expansion of the Dutch and the English into Africa and Asia. See Anthony Pagden, The Burdens of Empire (CUP 2015). Antony Anghie, Imperialism, Sovereignty and the Making of International Law (CUP 2007) 182. 2 Gerrit W Gong, The Standard of Civilization in International Society (OUP 1984). 3 Religion played a role. The local religions were decried. Colonialism had an evangelizing mission to ensure the spread of Christianity. The collision between local habits and those of the West was an ever-​present factor with the British embarking on a policy of ‘Westernizing’ the colonies. For the important role of Macaulay in achieving this in India, see Zareer Masani, Macaulay: Britain’s Liberal Imperialist (The Bodley Head 2013). Muthucumaraswamy Sornarajah, The Battle Continues In: The Battle for International Law: South-North Perspectives on the Decolonization Era. Edited by: Jochen von Bernstorff and Philipp Dann, Oxford University Press (2019). © The Several Contributors. DOI: 10.1093/oso/9780198849636.003.0008

176  Muthucumaraswamy Sornarajah It also enabled the construction of a subject people on the basis of a false theory of civilization so that they could be ruled over, evangelized, and plundered. The notion of standards of civilization was a mythical creation. Clearly China and India had older civilizations than any European state. History did not matter as the standard of civilization could be manipulated in order that criteria absent in other civilizations could be added so that the other would not qualify as civilized. It was the creation of a myth that was maintained by power. There are many accounts of myth creation to subjugate people internationally as well as domestically and the use of the law to do so is recounted in the literature.4 Lands of aboriginal people were forcibly occupied on the ground that they were terra nullius that could be settled by other people as no formal administration existed in these lands. Australia was colonized on this basis and the common law introduced to govern the settlements. It took many years for white Australians to accept that Australia belonged to its aboriginal people before the coming of the white man and that it was conquered from them. It was not empty land that was occupied, as the story of the introduction of the common law implied.5 The use of force was legitimized to ensure such control. Mutinies were suppressed callously without any accountability for atrocities as the law permitted such suppression.6 Resources were transported to fuel the industrialization7 of the European states without hindrance. The finished products were sold in the captive markets of the colonies, with the existing competition for such goods crushed and the emergence of new markets by local entrepreneurs eliminated. The legal systems of the colonies were altered so as to accommodate the interests of the imperial powers and their citizens, enabling the change in existing agricultural production, supplanting it with new crops such as tea, coffee, and rubber, which had global markets. 8 All these good things for the empire would be over with the success of the struggle of the colonial people for self-​ determination, if it were to take its natural course. That it was not allowed to do so is the contention that is made here.

4 For example, Lauren A Benton and Lisa Ford, Rage for Order:  The British Empire and the Origins of International Law, 1800-​1850 (Harvard University Press 2016). The work unravels the manner in which the law, both international and domestic, was redesigned by the imperial power to suit its interests. 5 The Australian High Court in Mabo v Queensland recognized the prior right of the aboriginals to the land and reversed the view that Australia was planted and not conquered. 6 Biswamoy Pati (ed), The Great Rebellion of 1857 in India: Exploring Transgressions Contests and Diversities (1st edn, Routledge 2010) deals with the atrocities that attended the suppression of the Indian Mutiny of 1857 and non-​accountability for the atrocities. 7 Benton and Ford (n 4). 8 For colonial enterprise in the cotton trade, see Sven Beckert, Empire of Cotton: A Global History (Vintage 2015).

Rebuilding Empire through State Contracts  177

1.  The principle of self-​determination The principle of self-​determination was a change in international law of major proportions.9 It dismantled an imperial order involving European dominance, resulting in the freedom of peoples in Africa and Asia. This period of change began with the independence of India in 1947 and moved through the 1950s and the early part of the 1960s, ensuring the dissolution of empire and the creation of new states from the old colonies. Self-​determination quickly achieved the status of a ius cogens norm making colonialism totally unacceptable and hastening the process of decolonization.10 Freedom became a valued possession, but the Afro-​Asian people could not achieve it in any true sense as their economies were still controlled by the multinational corporations (MNCs) of the former imperial states. The original purpose of colonialism—​the tying up the resources and markets of the colonies—​continued. As a result, the former colonies sought to assert economic control through the formulation of principles that came to be collectively contained in the New International Economic Order (NIEO). The NIEO contained collectively a body of norms that had been articulated by the former colonies, now formed into a loose group of non-​aligned countries.11 One major facet of the NIEO was the assertion of permanent sovereignty over natural resources, a doctrine that had been independently asserted in the Declaration on Permanent Sovereignty over Natural Resources in 1964. Its aim was to ensure that control over the exploitation of natural resources, vital to the economies of the newly independent countries, were recovered by them. It involved the rearrangement of existing structures of exploitation, mainly based on concession agreements made in the past, so that state entities established for the purpose of controlling the natural resources sectors, could recover control over the exploitation of natural resources. The NIEO also contained propositions affecting trade, such as the payment of just prices for commodities and resources sold by the developing countries and preferential access to the markets of developed countries. But, these efforts were strenuously resisted by the developed states. Most importantly, the international lawyers of the developed states were in the forefront in opposing the force of the norms that were being proposed by the developing countries. These international lawyers, ‘highly qualified publicists’, no doubt, acted as agents of MNCs ensuring that the new norms did not displace the control these 9 On the development of the principles of self-​determination in international law, see Antonio Cassese, Self-​Determination of Peoples: A Legal Reappraisal (CUP 1995). The principle quickly came to be recognized as a ius cogens principle of international law and led to the independence of many of the colonial states of Africa and Asia. 10 Resolution 1514(XV) on the Granting of Independence to Colonial Countries and Peoples was adopted in 1960 by eighty-​nine votes to none against, with nine abstentions. The 1966 Covenants on Human Rights contain identical statements on self-​determination. 11 This group, in the context of the United Nations (UN), came to be known as the Group of 77, as it originally consisted of 77 countries. Its number increased as new independent states joined the UN.

178  Muthucumaraswamy Sornarajah corporations exercised over the exploitation of the resources of the former colonial states. They were intent on ensuring that the structure of the economic order was not changed despite the fact that the colonies had achieved independence. What occurred was that the MNCs were always a source of power in international relations. Yet, they were not recognized in international law, where they had no personality as actors with responsibilities.12 They asserted private power both directly and indirectly through their states. As a result, they were able to construct normative systems to ensure that their power to form laws favourable to their continued dominance in international relations continued. In this sense, empire came to be recreated. Those with power ensured that the system survived albeit in an altered way. Though self-​determination ensured a fundamental change in ensuring the equality of all peoples, its promise of economic equality was never achieved. It was replaced by an alternative system that continued the stranglehold that the former imperial powers had prior to decolonization.

2.  The battle continues Although colonialism was ended and new independent states were brought into existence, it did not mean that the power equations within international life changed; rather, the personnel in the battle may have been replaced, and new actors and new institutions may have come onto the scene. But, essentially, the purpose of ensuring dominance, which was the purpose that existed during colonial rule, continues unabated. The lines along which this dominance continued were defined in the immediate post-​colonial period, the ten years after the independence of India—​the first major state to achieve independence in 1947. This decade and the one succeeding it are crucial in the demarcation of the battle lines that came into being—​ one seeking new ways of conserving the dominance of colonial times, the other seeking to advance normative structures that would lead to a more just and equal situation among states. The latter are the overtly articulated premise on which the international society is constructed, as justice, equality, and self-​determination are fundamental principles and objectives of the United Nations (UN) system. Yet, those who were responsible for the creation of the system—​principally the leading states of the world that won the Second World War—​also could be credited with supporting the construction of a parallel, iniquitous system designed to profit MNCs. This is due to the obvious nature and extent of the political power that the 12 A recent British textbook states: ‘The question of the international personality of the transnational corporations remains an open one’, Malcolm N Shaw, International Law (7th edn, CUP 2014) 182. It has been easier for writers on international relations to recognize the extent of the power of MNCs in shaping legal regimes. Claire Cutler, ‘Private International Regimes and Interfirm Cooperation’ in Rodney Bruce Hall and Thomas J Biersteker (eds), The Emergence of Private Authority in Global Governance (CUP 2002).

Rebuilding Empire through State Contracts  179 MNCs wield in the domestic politics of their home states. What they desired was the perversion of the openly stated objectives of the UN Charter so that, under its cover, they could profit through the continuation of rules that perpetuate economic dominance. As such dominance was in the interests of the developed states, they became willing tools, participating in the project for the creation of an alternative system that continued dominance over the newly independent states. A parallel is provided by what was taking place within American law. The tussle for equality for the Afro-​American resulted in the landmark decision of Brown v Board of Education (1954).13 It is touted as the leading case in American Constitutional Law—​it shattered the fiction of separate but equal treatment as the formula of black equality, and ensured true equality through the access of black children to schooling and black people to every public facility as equals of the white citizens. It led to an affirmative action programme. However, many black scholars point to the hollowness in the result in that, despite the lip-​service that was paid to equality through the vesting of rights, the status quo between the whites and blacks in terms of economic power and the quality of life has largely remained unchanged. Seeming changes in the law do not truly bring about changes to the status quo. The status quo could be preserved through other means. Dominant interests always ensure that, despite apparently monumental changes to the law, the pre-​existing system of dominance continues. It was similar in the context of international law. The thrust of this chapter is to show that decolonization in the fifties did bring about the freedom of Africa and Asia, but that freedom did not affect the economic status quo to any significant extent. There were other ways of ensuring dominance that replaced the more direct way of colonialism.

3.  Decolonization and its effects on international law This chapter starts by recalling the colonial period, during which there was no need to institute any rules on the protection of foreign private property. The law of the imperial power applied to the colony. Whatever law on property, contract, or commercial relations that had existed in the colony was replaced with the law of the imperial power.14 If communal property had existed among the natives, this was displaced by individual ownership, which was so necessary for the carrying out of commercial activities. The purpose of colonialism (ie, the exploitation of resources, the transactions in commodities)—​particularly finished products made with the natural resources of the colonies from the imperial state in the colonial market and the provision of services—​required that a capitalist market economy 13 Brown v Board of Education of Topeka 347 US 483 (1954) 14 This is studied in Lauren A Benton, Law and Colonial Cultures: Legal Regimes in World History, 1400–​1900 (CUP 2002).

180  Muthucumaraswamy Sornarajah be instituted in the colonies so that the imperial power could maximize the advantages of the colonial situation. The transformation of the property structures of the colonial states has been recounted in literature,15 both old and new. These transformations largely continue in the legal systems of the former colonial states. To this extent, there is already a preservation of a system conducive to the protection of whatever property relationships are created anew by the foreign investors of the metropolitan states. It will extend into the future of these independent states, which will retain the colonial legal structures. No former colony has sought to displace these systems of commercial law. Even where they change them, they will do so in reliance of changes that take place in the systems of the imperial states.16 There is a near-​slavish need among the legal elite to continue the tradition of the imperial law in the belief that stability needs such continuation. It ensures the preservation of the interests of the elite classes. The basic structure of the imperial law has not been changed. This ensures the possibility of a system to protect continuing investment by the former imperial powers. But, in the sphere of foreign investment laws, changes were made by the newly independent states as it was regarded as an area that needed to be controlled in order to ensure that economic sovereignty was recovered from imperial companies. Imperial companies dominated sectors, particularly the planation and natural resources sectors, which were vital to the economy. The ending of this dominance was necessary to recover control over the economy. The imperial system had ensured that the colonial economies served the needs of the imperial state. They were either plantation economies like Ceylon (now Sri Lanka), producing tea or natural resources economies, like Zambia producing copper. Though many of the colonies did effect changes to existing investments made by companies of the former colonial powers through nationalization, it is the making of fresh investments that were in need of protection. Such fresh investments did flow into the former colonies with which companies had familiarity due to historical and other links. It was the protection of such new investments and other investments seeking natural resources and markets that were in need of protection. The urgency was to create a new system of protection that used new techniques of public international law to serve the interests of private power of MNCs. This is what enables the claim, that in this, as in many other spheres of international law,17 the interests of colonial 15 See ibid. 16 Indian and Asian lawyers exhibit their ready familiarity with legal developments in England and their acquaintance with English judges in the most carping way still. This network ensures the success of the dependency and continuation of the imperial system in independent states. 17 There were other spheres in which the interests of the former imperial powers were preserved through new formulations of international law rules. For example, the right of minority and tribal groups to secession from the newly independent states were denied in the interest of preserving the illogical borders drawn by the imperial powers so that the states they created could remain intact. This ensured that resource rich regions of these states—​like Biafra in Nigeria or Katanga in the Congo—​did not break away to form new states.

Rebuilding Empire through State Contracts  181 powers were reflected in the new post-​colonial systems that were created. These new systems conserve or create rules that enabled the continuance of power that the imperial powers had lost. The creation of a system to conserve virtually imperial powers over resources and markets is a situation that the former imperial powers and their MNCs sought to achieve. The extent of its success is measured in the following sections. This paper is not concerned with the modern period where bilateral investment treaties (BITs) protect foreign investments made by MNCs through a compulsory arbitration of investment disputes. This came at a later stage, the first rudimentary investment treaty being made in 1959 and the first arbitration award recognizing compulsory jurisdiction being decided in 1991. The system of investment treaties concretized a system of investment protection that had been made earlier. The period that is studied here is the immediate decolonization period between 1947 and around 1974 when the NIEO norms came to be firmly articulated. The norms that emerged during this period mark the battle lines between the two group of states: the former imperial states and the newly independent states. There could be other descriptions of these states. The former imperial states were rich as a result to a large extent because of the one-​way flow of wealth into them from the colonies. Consequently, the newly independent states were poor. The rich group of states were the capital exporting states, keen on having their capital exported to assure supplies of raw materials, and ensure flows of profits under conditions in which such foreign investments enjoy stability and protection. The poor states were the capital importing states, which hoped that flows of foreign investment would lift them out of poverty. The contention here is that within this period of a few years, the former imperial powers, along with the MNCs, had worked out a system that enabled the continuation of imperial control over much-​needed natural resources as well as control over markets of their erstwhile colonies, making decolonization a myth so that the battle again erupted, this time pitching the developing states against the emergence of these new structures.18

II.  Glimpses of past patterns The crucial first step in the making of an investment in a foreign state is to make a contract with a party in the host state. If that party is a private party, the domestic 18 The charge is here made that there was concerted action by the former imperial states, MNCs, international law scholars, and arbitrators in the construction of this system. A study of an early dispute like the Anglo-​Iranian Oil Company dispute which went before the ICJ and was litigated elsewhere provides an example of such collaboration. The idea that the contract between the oil company and Iran amounted to an instrument akin to a treaty was stated in the arguments in the case. There was litigation before the courts of Aden seizing oil exported from Iran on the ground that it was illegally expropriated. The role of Hersch Lauterpacht in the case is detailed in Elihu Lauterpacht, The Life of Sir Hersch Lauterpacht (CUP 2010) 349–​53.

182  Muthucumaraswamy Sornarajah law of the host state would usually govern the transaction. The domestic law of the host state has the most dominant ties with the process of the contract. If the contract is with an entity of the state, as contracts in the plantation or natural resources sector usually are, it would be no different, as the link between the state and the contract are stronger.19 The presence of the state entity in the transaction makes the transaction inherently unstable from the point of view of the risk of the state interfering with the working of the contract, for a variety of reasons involving the public interest as well the need to rescue the state entity from contractual difficulty, should such difficulty arise. There is considerable political and economic risk involved in the foreign investment transaction. Its long duration, the public interest elements involved in it, and possibilities of changes in external circumstances make the foreign investment contract very unstable.20 The situation would seldom have arisen in imperial times, because the imperial state would have ensured that the legal conditions were favourable to foreign investment. But while colonialism had ended, the need of the former imperial powers for natural resources continued. A plan was necessary to ensure that supplies were safe and that the original investment had long-​term stability. The need now was to ensure that, where the situation of risk does arise, the foreign investor is ensured remedies that would restore him to the position prior to the dispute, usually through access to damages. The fact that damages would have to be paid will also act as a deterrence against government interference with the contract. Domestic courts cannot be expected to provide relief under these circumstances. For one thing, there is the possibility of bias. The other is that if the state interference was through legislation, as it would usually be, there is little that the domestic court could do.21 Alternatives had to be devised. The effort at upgrading the contract of foreign investment into public international law was a project that was begun early in the decolonization period. Such a scheme would put the foreign investment contract beyond the sovereign reach of the host state. The working out of this scheme is associated with the writings of scholars who had begun thinking about the protection of foreign investment in the 1930s along with the rise of large MNCs taking business out of their states into other lands.22 The major problem were the positivist theories of international law. These theories ensured that personality in international law was confined to states and states alone. International law was thought of as a law between states. The protection of the foreign investor was to be achieved 19 Upon nationalizations, newly independent states create state corporations in which they vested the task of running the sector. The presence of the state entity makes the transaction materially different from the private transaction. 20 The risks to foreign investment are discussed in Muthucumaraswamy Sornarajah, The International Law on Foreign Investment (4th edn, CUP 2017) 88–​98 (hereafter Sornarajah, Foreign Investment). 21 Review of such legislation is illusory in most systems. The legislature being sovereign, there is little that courts could do. 22 In a sense, the British and Dutch East India Companies were MNCs, but they operated within the colonial context.

Rebuilding Empire through State Contracts  183 only obliquely through the rules of diplomatic protection, with the state mediately protecting the interests of the injured foreign investor through the notion that the unremedied injury caused to him was, in effect, an injury caused to the state. This system of mediate injuries and state responsibility for such injuries provided the system of investment protection in earlier phases of international law.23 Vattel and other institutional writers had referred to the existence of the system of diplomatic protection, which nicely got over the problem of the absence of personality in the MNC. What was even nicer was that not only did the MNC receive protection in international law through this indirect manner, but also it avoided any responsibility as it had no personality in international law. The British East India Company fought wars, conquered states, killed people, and plundered riches without any responsibility in terms of either domestic law or international law.24 It was a good position to hold. The MNC could cause injury to the interests of the host state and its people. There was no avenue of redress except at domestic law, which would not be able to provide adequate remedies to redress the extent of the injuries caused.25 There was no way of pursuing an international remedy against the MNC as no mechanism existed to do so. Yet, the system was insufficient from the point of view of direct protection of the foreign investment and the investor. The need was to ensure that the MNC was protected without upsetting existing theories of responsibility as the direct conferment of personality would make the MNC a bearer of responsibilities and may also involve responsibility of the home state on the basis of attributability principles based on agency. So, there was a scurrying to find a basis on which the foreign investment contracts made by MNCs could be protected. It can be seen that this was a game of power. The MNC, obviously an agent of power in itself, and its home state were intent on the creation of a new international law under which the corporation could sue the home state, but yet avoid any responsibility for any damage to the home state interests. The strategy should also protect the home state, which could interfere to protect the MNC without incurring any responsibility for the conduct of the corporation within the home state on the basis of agency. The case for such agency was cogent as the MNC repatriated profits home, was taxed by the home state, and general benefits arose for the home state as a result of the outward flow of foreign investments. The avoiding of home state responsibility, despite the need and the existence of good reasons for it, was part of the strategy being created. Simply put, if the MNC did not have personality in international law, it could not

23 Panvezys-​Saldutiskis Railway Case (1939) PCIJ Series A/​B No 76 at 16, the PCIJ explained the rule of mediate injuries. 24 For an interesting study of the British East India Company, see Tirthankar Roy, The East India Company: The World’s Most Powerful Corporation (Penguin 2012). 25 The Bhopal Catastrophe is an example. The domestic courts could not provide an adequate remedy in the light of the extensive damage caused to thousands of lives. There was no international remedy. Suing the corporation before its home state courts failed.

184  Muthucumaraswamy Sornarajah have responsibility for damages nor inculpate its home state on the basis of any theory of attributability of responsibility like agency. But, a way had to be found in order to enable the corporation to pursue means of protection of its assets and interests. As early as the 1930s, Verdross, for example, suggested that the lack of personality in the MNC could be dealt with through the supplying of the requisite personality for any specific transaction by the state that deals with the MNC.26 The situation was analogized to minor’s contracts where the deficiency in the minor was supplied or corrected by the major dealing with him. Another technique suggested was that the contract should contain clauses that put the sovereign state and the MNC on the same footing on the ground that this was essential for the contract to function. Such a view would demand that the contract be treated as something akin to a treaty—​at least a quasi-​treaty—​that would implicate international law obligations towards the foreign investor. In terms of practice, the genesis of the notion of internationalizing an investment contract can be seen in an award made in the Lena Goldfields Arbitration.27 The arbitral tribunal that decided the dispute did not have lawyers on it; nevertheless, it demonstrated the thinking of the times as to the need to consider the host state responsible. The dispute resembles a foreign investment situation where foreigners had invested in a gold mine in Russia. The mining activity ceased after the Russian Revolution, the mine being now taken over by the Communist government. There was a provision for arbitration and the foreigners sought arbitration against the Russian government, who predictably did not turn up. But, the arbitrators, none of whom were lawyers, proceeded to make an award against the Russian state. Later writers have used the case to read in theories the arbitrators may not have intended. The reports of the award are scant, the most authoritative of them a short report in the London Times. Nussbaum and Veeder have written articles on the case,28 and these later writings seek to rationalize the case in accordance with developments that had taken place after the case. It is thus safer not to draw conclusions from the Lena Goldfields Arbitration. The arguments presented by Hersch Lauterpacht as UK counsel to the International Court of Justice in the Anglo-​Iranian Case29 are more relevant. 26 Alfred Verdross, ‘Quasi-​International Agreements and International Economic Transactions’ (1964) 18 The Yearbook of World Affairs 230. Verdross had written on the theme much earlier in German. He claimed to be the initiator of the theory. But, the theory is associated with other leading names such as Lord McNair and Hersch Lauterpacht. There were ‘highly qualified publicists’, mercenaries of the law, willingly promoting this project of perfidy. 27 Lena Goldfields Limited v USSR (1930). 28 Arthur Nussbaum, ‘Arbitration Between the Lena Goldfields Ltd. and the Soviet Government’ (1950) 36 Cornell Law Review 31; VV Veeder, ‘The Lena Goldfields Arbitration: The Historical Roots of Three Ideas’ (1998) 47 International and Comparative Law Quarterly 747. The Schufeldt Claim made in 1930 is in close support in finding a breach of contract an illegality in terms of a possible external law. Though the law of Guatamala was applied, it was stated that that law is the same as in other states. So, what was probably hinted at is a general principle of law. 29 Anglo-​Iranian Oil Co. Case (United Kingdom v Iran) [1952] ICJ Rep 93 [23].

Rebuilding Empire through State Contracts  185 Contrary to his standing as an early participant in the human rights discourse in international law, Hersch Lauterpacht, who appeared for the UK, made an argument that is favourable to the interests of the Anglo-​Iranian Oil Company, the predecessor of British Petroleum. The argument was that the concession agreement the British company had made with Iran had a status in international law as it was akin to a treaty. The effort at assimilation of the foreign investment contract to a treaty having status in international law was present in the thinking of influential international lawyers of the time. They had set the stage for thinking that was to come later. The strategy that was initiated was to ensure that the contract that was made by the foreign investor had an external base that was protected by external mechanisms such as arbitration conducted in accordance with an external law as the substantive and procedural law of the arbitration. The process of establishing this mechanism is described in Section III. The gathering of opposition to the system is described in the section that follows.

III.  The Western battle lines As indicated in Section II, a rudimentary framework for a strategy of foreign investment was worked out as colonialism was being dismantled. The making of this law was an endeavor in which the minds of the best international lawyers of the time participated. The project was undertaken to benefit the MNCs that operated largely in the vital petroleum industry. The sources employed were the low-​order sources of international law—​what are described as subsidiary sources of international law in Article 38(2) of the Statute of the International Court of Justice—​‘the decisions of judicial tribunals and the writings of “highly qualified” publicists’. They were sources that were themselves private in that they depended on the prejudices of individuals and were amenable to the service of the private power of MNCs. No doubt, the home states of these corporations, the former colonial powers, lent vigorous support to the formation of the law but there is no direct participation by them in the endeavor.30 What is recorded are the hallmarks of the situation brought about and the reasoning behind them. They are largely in the form of a series of arbitrations that arose in the 1950s during the period of decolonization and the writings of ‘highly qualified’ publicists writing in support of these arbitral awards. The chain of events consists of a succession of such arbitral awards.

30 This may be argued. The better view may be that governments were hand in glove with MNCs in constructing this law. The arguments made in Anglo-​Iranian Oil Co v Iran by Lauterpacht were made on behalf of the British Government. The role of Hersch Lauterpacht in the case is to be found in the biography written by his son Elihu Lauterpacht (Lauterpacht (n 18)). The UK memorandum prepared by Lauterpacht is in Hersch Lauterpacht, International Law Collected Papers Vol. 4: The Law of Peace (Elihu Lauterpacht ed, CUP 1978) 23.

186  Muthucumaraswamy Sornarajah Three awards, made in fairly quick succession, have dominated subsequent thinking.31 They accept that the law that would generally apply to disputes arising from petroleum contract would be the law of the host state. Indeed, existing authorities on the point refer such disputes to the host law. The tribunals accepted this view but proceeded to argue that the law of the Middle Eastern states was not sophisticated enough to deal with complex contracts like petroleum contracts. The assumption was that the law of the nomadic tribes of this region may be good enough for dealing with the sale of camels or tents but they lacked the wherewithal to deal with sophisticated contracts of long duration. There is nothing to suggest that European law of the time was any better. The contemporary texts on English law on contracts deal with the buying and selling of simple household goods. The reasoning was simply based on racial superiority. Once this stage was reached, the second stage was to argue that the rules could be culled from the major European systems of law. There is nothing to justify such a procedure. It was chosen simply because the arbitrators were European and were familiar with European law. These awards are the basis of what has come to be known as the theory of the internationalization of foreign investment contracts. Under the more extreme version of the theory, a foreign investment contract ceases to be subject to the domestic law of the host state ipso facto.32 In the moderate version, the effect of internationalization takes place when the contract contains clauses such as a stabilization clause, a choice of law clause, and an arbitration clause. These clauses are said to indicate the intention of the parties to externalize the base of the contract. This process of internationalization is justified on the policy ground that foreign investors will be reluctant to make investments unless the investments are safeguarded from the legislative and administrative processes that could change the original terms of entry of the investment. Local courts will not be sufficient as they are either biased or will not be able to countermand the wishes of the other branches of government for constitutional reasons. The ultimate rationale is that the theory is needed to ensure the economic development of the poorer host states because of the benefits such investment flows bring them. So, there is a hearkening back to an altruistic reason for the theory, which ensures that a host state through a contract ties its mineral wealth or other sectors to a foreign MNC. As in the case of the standard of civilization, the altruistic motive of achieving the economic development of the people of the former colonies becomes the rationale for the new system. This system enables the continuous flow of resources to the home state of the MNCs, as in the days of colonialism.

31 The awards were The Abu Dhabi Arbitration (1951) 18 ILR 144; The Qatar Arbitration (1955) 20 ILR 534; The Aramco Arbitration (1958) 27 ILR 117. These awards have been described in Sornarajah, Foreign Investment (n 20) 340–​45. 32 The Sapphire Arbitration (1953) 35 ILR 136 where the existence of an international arbitration clause was held to exclude the law of the host state.

Rebuilding Empire through State Contracts  187 If this rationale was honest—​that the betterment of these people should be achieved—​the more just solution would have been to repay what was taken from them in the past. The transportation of the mineral resources at hardly any cost back to the metropolitan states fuelled the industrial progress of the imperial states. There is a duty to transfer some of the wealth to the people who were denied the profits from their own resources. Instead, what we have now is a theory that continues the tying down of these resources in contracts that clearly benefitted the foreign MNC and its home state. The contracts were of long duration; some extended to sixty years.33 There was no semblance of justice in the situation that emerged. Of greater importance is the nature of the resistance to the formation of this theory. It is this resistance that has received less attention for the obvious reason that the mainstream writers on international law (among them, the so-​called ‘highly qualified’ publicists) acted as mercenary purveyors of the internationalization theory, which cannot be reconciled with basic concepts of existing international law. That system does not accommodate, at least at the time of the formation of the doctrine, a contract made by a non-​state actor to be within the purview of international law. Contortions had to be engaged in to accommodate this result. As indicated earlier, Verdroß argued that the absent personality in the MNC could be supplied by the state, very much as in the making of contracts with minors where deficiency in capacity can be made up by the other party’s knowledge and consent to treat the minor as having capacity.34 It is a far fetched idea. Others tried to assimilate the contract to a treaty or at least a quasi-​treaty so that international law could apply to it. These writers at least recognized the theoretical difficulties attending the project. However, with the passage of time, these difficulties were ignored and the theory as stated as fact due to a stream of later awards accepting and applying the theory. The formation of the internationalization theory has been adequately discussed in the literature.35 There is unanimity as to the manner of its origins as well as the circumstances that trigger off its application. There may be incidental variations but the original manner in which internationalization has been conceived

33 The oil concession contract involved in Aminoil v Kuwait (1982) 21 ILM 976 was to last for sixty years. The highpoint of the theory was in Texaco v Libya (1977) 53 ILR 389. The theory was used in the other two Libyan cases: BP v Libya and Liamco v Libya. There are later cases: Revere Copper and Brass Inc v Overseas Private Investment Corp (OPIC) (Award, 1978) 56 ILR 258; AGIP SpA v Govt of the Peoples Republic of Congo (Award, 1979), (1982) 21 ILM 726 [88]; Elf Aquitaine Iran v National Iranian Oil Company (NIOC) (1986) 11 YbCA 97. Peter Cameron, International Energy Investment Law: The Pursuit of Stability (OUP 2010) would have it that the use of the theory is pervasive in the petroleum field. 34 Verdross (n 26). 35 Ivar Alvik, Contracting with Sovereignty:  State Contracts and International Arbitration (Hart 2011); Prosper Weil, ‘Problèmes relatifs aux contrats passés entre un État et un particulier’ (1969) 128 Recueil des Cours de l’Académie de Droit International de La Haye 98. Jean Ho, ‘Internationalisation and State contracts: are State contracts the future or the past?’ in CL Lim (ed), Alternative Visions of the International Law on Foreign Investment: Essays in honour of Muthucumaraswamy Sornarajah (CUP 2016). Jean Ho, State Responsibility for Breaches of Investment Contracts (CUP 2018).

188  Muthucumaraswamy Sornarajah has continued to the present without much change. The only change, perhaps, is with the popularity of treaty-​based arbitration, where the ideas contained in internationalization and facets of it have been reinforced.36 That is a later development not addressed here. The paucity of arbitrations that supported internationalization resulted in a large amount of writing affirming the theory. The belief was that repetition will lead to the emergence of an affirmative rule relating to internationalization. The project was one that the leading lawyers of the times engaged in probably because the making of the law was profitable to them as well as to the MNCs and the states they advised. It was evident that they acted for the companies and states that were bent on creating such law. Thus, the pattern was laid in which scholarship was bent to achieve purely mercenary purposes making law that protected the interests of the MNCs. The great names of academic international law had engaged in this endeavour, thus calling into question the sanctity that attaches to scholarship.37 There was a duality in their approach. As already pointed out, MNCs were hidden from liability by the veil that colonial international law drew over corporations in that they did not have personality in international law. This fiction was maintained despite the fact that the British and Dutch East India Companies were conquering Asian peoples and fighting wars against them. These two companies were indistinct from the governments of their home states as the leading politicians of the European states were shareholders of these companies. So, they were permitted untrammelled exercise of power without any hindrance through the law by a simple fiction that only states had personality in international law. Yet, now, the argument was that they could acquire rights against states. What is more, a mechanism was created for the enforcement of those rights through international arbitration; the paradox was never explained. It was a tradition that continued in developing the law under investment treaties, a succeeding phase in the development. The developing countries fought vigorously to resist the development of the theory. Importantly, internationalization theory was developed on the basis of the low order sources of international law. They depend on the subjective choice of rules of European systems of international law by arbitrators who sat to settle oil disputes38 36 The role of umbrella clauses in investment treaties has been to reinforce the internationalization theory. 37 The leading articles in the area are revealing. Duncan McNair, ‘The General Principles of International Law Recognized by Civilized Nations’ (1957) 33 British Year Book of International Law 1 [note it seems to me that it would be better to keep the comma, as it frames the bibliographic details together with the comma after ‘McNair’, distinguishing it from the text, M.M.] linked the external law applied in the three arbitrations involving oil to a source of international law. See also Robert Y Jennings, ‘State Contracts in International Law’ (1961) 37 British Yearbook of International Law 156; Hans Wehberg, ‘Pacta Sunt Servanda’ (1959) 53 American Journal of International Law 775 linked the Kelsenian grundnorm to the process of internationalization. See also Weil (n 36). 38 They were largely distinguished English and European lawyers (eg, Dupuy in Texaco, Lagegren in BP, Asquith in Abu Dhabi) with the exception of Mahmassani, who was sole arbitrator in Liamco v Libya.

Rebuilding Empire through State Contracts  189 and the commentaries on those awards, written often by those who were involved in the process of those arbitrations. The proposition that was chosen as a general principle was the sanctity of contracts, despite the fact that major legal systems of the world had begun to move away from sanctity of contracts. Leading lawyers gave the principle respectability in terms of international law by tying it with the international law principle, pacta sunt servanda,39 given even higher status by Kelsen, who identified it as the Grundnorm of international law. There was a definite project here as a conglomeration of European, American, and English international lawyers moved simultaneously to lend their weight to the advancement of an idea that had no theoretical basis within international law. International law had hitherto stressed the primacy and exclusivity of domestic law.40 The acme of the development was to come with the award of Professor Dupuy in Texaco v Libya.41 The distinguished French academic lawyer spilt much ink to stabilize the doctrine of internationalization in an uncontested award. There was a wholesale repudiation of the arguments made against internationalization and a concrete affirmation of the doctrine. It was a gratuitous performance. Every argument against internationalization was refuted in the award. Dupuy regarded the doctrine of permanent sovereignty over natural resources as lex ferenda couched in UN General Assembly (UNGA) resolutions that did not have law creating effect in terms of the UN Charter. He rejected the view long put forward by developing countries that foreign investment contracts are a species of administrative contracts similar to the contrat administratif of French law and hence defeasible in the public interest on the ground that the contrat administratif was unique to French law. Interestingly, the Western international lawyers have now seen it to their advantage to treat the foreign investment process as a public law process simply because the change of events favours such an argument.42 Professor Dupuy did a hatchet job on the arguments that developing countries had put forward against the notion of internationalization of foreign investment contracts. Issuing a unilateral award as the sole arbitrator appointed by the claimant company Texaco, he anticipated all the arguments that a developing country could have made. On the basis of the claims they were then making through the UNGA Resolutions and earlier arbitral awards, he anticipated them, and spent much intellectual energy in rejecting them. In this, he merely reflected attitudes of the larger number of European international lawyers before and after him in being universally adverse to the views of the developing countries. It was a continuation of the project to

39 Wehberg (n 37). 40 Serbian Loans Case (1929) PCIL Series A no 20. 41 Texaco Overseas Petroleum Co. v Libya (1978) 17 ILM 1. 42 See Stephan Schill, International Investment Law and Comparative Public Law (OUP 2010). It is now not unknown for doctrines of single systems like the proportionality theory of German law to be advanced as relevant to investment disputes.

190  Muthucumaraswamy Sornarajah ensure that the structures of extractive colonialism were maintained in a different way, despite that colonialism itself had ceased to be. What needs to be stressed is that, as colonialism came to be dismantled and the former colonies that supplied natural resources were able to control the flow of these resources, the former imperial powers were intent on devising methods of ensuring that their control did not diminish despite that they had had to relinquish political power in these newly independent states. They achieved this through several means. One was through elite formation in the developing states so that a class of persons similar to thinking as the former colonial rulers replaced them in the colonies and continued to be favourable to the interests of the former colonial powers. But, more meaningful was the domination through the structures of the law. The construction of the doctrine of internationalization enabled extractive colonialism to continue.

IV.  The other battle line Mainstream international lawyers ignore the principle of self-​determination, or look upon it as of little significance. It is also a strategy to turn a Nelsonian eye or to be blind to the existence of opposition in the hope that it would go away. But the principle of self-​determination has a staying power of its own and is seen as emerging into significance through persistent resistance to the mainstream of international law that was built through deceit. This alternative set of norms were articulated largely through a series of UNGA Resolutions made at the behest of the newly independent states of the world. They begin along with the anti-​colonial movement. The movement in terms of international law is expressed through the principle of self-​determination that all people are entitled to be free from domination by others. It is the triumph of that principle that led to the emancipation of the colonial world. Every major authority regards self-​determination as a defining moment that reordered the world from a system that was mired in the exploitation of the peoples of Africa and Asia by those of Europe. Because of the revolutionary change it effected to the existing international legal order, the principle of self-​determination is regarded as a ius cogens principle of international law. The principle had a necessary corollary. Recognizing that political independence was meaningless unless the newly independent states had economic independence as well, the leaders of these newly independent states argued for a principle of economic self-​determination. That principle came to be articulated as early as 1951 as the Afro-​Asian states began to achieve independence.43 It became 43 MS Rajan, The Doctrine of Permanent Sovereignty over Natural Resources (1982) traces the history of UNGA involvement from a declaration of economic self-​determination in 1951.

Rebuilding Empire through State Contracts  191 an annual feature at the meetings of the UNGA. This effort at norm creation was openly made evident. Coupled with a ius cogens principle of self-​determination that altered international legal order, the prestige of economic self-​determination was immense. It also received support of the large numerical majority of the UNGA. Around the time, fearing that the rule would come to be soon recognized as part of international law, the developed countries fought a rear-​guard action. The main emphasis was concentrated on the denial of the capacity of UNGA Resolutions to generate international law. While those supporting this capacity argued that these resolutions indicating the opinio juris of a large majority of the states of the world had quasi-​legislative authority, others relied on the fact that the UN Charter gave the UNGA only the power to make recommendations. This debate has no traction any longer. The power of the UNGA to generate norms which could lead to hard international law is no longer doubted. Indeed, many areas of international law rely heavily on statements in UNGA resolutions declaring the law on a particular area.44 The constant repetition of a norm in an UNGA resolution has a specific significance in the promotion of that norm to the status of international law. Such repetition of economic self-​determination is a feature of the period. Added to the fact that the idea has its pedigree in political self-​determination, already the organizing principle of the post World War order, the quick promotion of the principle to a legal rule can hardly be doubted.45 The norm was well on its way to recognition. It became more specific when it took shape as the Resolution on the Permanent Sovereignty over Natural Resources (RPSNR).46 Colonialism was based on extraction of natural resources from the colonies to fuel the industrial furnaces which produced manufactured goods, again, to be sold in the colonial markets. The control over the extraction of natural resources still remained in the hands of MNCs of the former colonial powers. The RPSNR was intended to end this situation. It was passed overwhelmingly in 1962 and, like the resolutions on economic self-​ determination, continued to be repeated annually. The resolution asserted the obvious fact that the natural resources of a state belonged to the state and fell within its sovereignty. The only change was that the resolutions stated that the resources belonged not to the state, but to the people of the state, thus bringing about the idea that the people were sovereign over natural 44 The law on space clearly commenced with the Resolution on the Peaceful Use of Outer Space, referred to by Bin Cheng as constituting instant customary international law. Many principles of human rights law began life in UNGA resolutions. The prohibition of torture, now regarded as constitution ius cogens, was contained in an UNGA resolution. 45 Sundhya Pahuja, Decolonising International Law: Development, Economic Growth, and the Politics of Universality (CUP 2011) 98–​120. 46 Permanent Sovereignty over Natural Resources, UNGA Res 1803 (XVII) (14 December 1962). Georges Abi-​Saab, ‘Permanent Sovereignty over Natural Resources and Economic Activities’ in Mohamed Bedjaoui (ed), International law: Achievements and Prospects (Martinus Nijhoff 1991) 600.

192  Muthucumaraswamy Sornarajah resources, with the state acting merely as the trustee of the people when it decided to permit the exploitation of the resources. The implicit theory was that the state could not make decisions as to exploitation in a manner that was not in the interests of the people. There was a notion of trusteeship in the state when it came to the disposal of the natural resources. There was always an inherent public interest element to be satisfied. This was intended to be a constant presence in the consideration of all transactions relating to natural resources. Natural resources could be exploited and transferred so long as the state ensured that it was in the public interest to do so. Where the public interest showed that the exploitation of the resources had ceased to benefit the public, it was incumbent on the state to put an end to the transaction. The norms relating to permanent sovereignty and the principle in the Article 2(2)(c) of the Charter of Economic Rights and Duties of States and the affirmation of these principles are no different from the basic premise of international law that a territorial sovereign has control over all resources of the state and that the disposal of these resources are always subject to sovereign control. The only difference they sought to make was that sovereignty of the resources vested not in the state, but in the people of the state, so that when the state makes arrangements as to the disposal of these resources they must always be in the public interest. The clear implication of this principle is that any contract that involves natural resources becomes defeasible when the public interest element in the contract changes or becomes extinct. This is the thrust of the developments that took place through the declarations and resolutions associated with the NIEO. The concept of a trusteeship notion in the state was buttressed by the idea of justice that the state, which has natural resources as the primary source of its economic progress, must always act in the public interest. The idea of a people’s sovereignty over natural resources is to be widely found in the constitutions of developing states. Compared with this justice interest that concerns the rights of a poverty stricken people emerging from centuries of colonial exploitation, any justice-​related argument in favour of the survival of contracts of foreign MNCs will not stand much examination. This will be particularly so if the foreign corporation had been exploiting the resources for a substantial period of time. The immediate purpose of the articulation of these doctrines is to bring an end to extractive colonialism, which had sought to tie down the exploitation of resources for long periods of time through contracts made with foreign MNCs. Developed countries strenuously opposed these measures. The arguments used traversed a well-​worn track. The fact that these norms were couched in an UNGA resolution was said to attest to their weakness as the UNGA under the Charter had only recommendatory powers. These norms were only aspirational and did not have any binding quality, according to this argument. This was an argument that was repeated in the Texaco Case by Professor Dupuy. He argued that the norms, contained in the UNGA Resolutions were de lege ferenda, and not lex lata. At the

Rebuilding Empire through State Contracts  193 time, this view was resisted by the developing country lawyers and those who supported them. They pointed out that there was a quasi-​legislative competence in the UNGA as a body consisting of all the member states of the United Nations. Clearly, in many areas of the law, UNGA resolutions were becoming the founding norms of important branches of international law. This particular argument must be considered lost. Another argument is that the UNGA resolutions were not passed unanimously. The developed states, which were the more powerful states, voted against the resolutions or abstained. The argument was a non-​democratic one. It did not matter how many states representing how many people had supported the norms. What mattered was the nature of the states that opposed it. This was an argument that bolstered up colonial international law: power was what counted. But international law had begun veering away from such considerations towards an orientation that was more consistent with justice.

V.  Analysing the two competing battle lines In any event, the merits of the two opposing positions need to be analysed. International lawyers have not been dispassionate in their analysis. They have divided on the basis of the camps to which they belong; this writer is no exception. But, because the writings of the international lawyers of developed states are more plentiful for the simple reason that there are so many different points of access for the publication of their views, there is a need for a forceful statement of the position from the point of view of the developing countries. Most developed country international lawyers assume that the battles over the NIEO are now passé. One wrote a requiem for the NIEO, and another pronounced it dead. This has been the general tenor if the NIEO is discussed in the literature generated within developed countries. So, while the NIEO was in progress it was derided as not based on proper sources of international law. Now that events have bypassed it, discussion has become futile. This is the mainstream view among developed country lawyers. Obviously, as in the time of the NIEO itself, there continue to be supporters of the norms of the NIEO, although there is a definite project to dismantle the effect it had on international law. There is sometimes not even an acknowledgment that there could have been a slight impact as a result of the collective endeavours of so many states of the world. It is for this reason that the continuing impact of the NIEO needs to be assessed so that the views of the other front could be conserved. This front maintains that the NIEO continues to be significant and may even be making a comeback. First, it is necessary to state what impact the NIEO had on the competing stance relating to the internationalization of foreign investment contracts. As indicated, the internationalization theory was based on two weak sources of international

194  Muthucumaraswamy Sornarajah law—​the string of arbitral awards, some of which were uncontested and the writings of ‘highly qualified’ publicists, often hired hands rewriting briefs or legal opinions as learned articles in journals that they edited or to which they had ready access. As opposed to these sources, the norms of the NIEO are based on the UNGA resolutions, derided as having only recommendatory value. In terms of modern international law, the comparison in the strength of the sources of law generation are weighted in favour of the norms of the NIEO, for no amount of awards that are subsidiary sources of international law or writings of ‘highly qualified’ publicists can stand against the solemn and collective pronouncement at the highest international forum of what the law on a particular subject is, by the majority of the states of the international community. In this context, whatever sophistry that can be mustered to favour the theory of internationalization must be regarded as highly suspect. The fact that favours this analysis is that the developed states themselves acknowledged the weakness of the notion of internationalization by shifting the focus onto an entirely different base of investment protection—​BITs. These treaties are almost contemporaneous with the formulation of the theory of internationalization of foreign investment contracts. The first of these treaties was the one concluded between Pakistan and Germany in 1959.47 Thereafter, the Abs-​Shawcross Convention which was adopted by the OECD in 1961 gave a model to these treaties and led to their general proliferation.48 Though the genesis of the US treaties may have been their earlier FCN treaties, the model of BITs take forms that are similar to the European treaties, except with the rule that American investment should be provided a right of entry and establishment in the host state partner. This wholesale adoption of a new strategy through which the colonial structure could be continued became almost universal.49 The vigour with which colonial structures continued under this structure is a story that needs to be told. The aim of the treaties, until its failure, was to tie up the extractive sectors to multinational exploitation and ensure that other sectors were brought within the same framework so that everything could continue as if colonialism still existed. The backlash to the system was soon to appear. Once the developed states, including the United States (US), became targets of arbitration under these treaties, they began to take refuge in sovereignty-​centred arguments very much along the lines made by the developing world.50 47 Treaty between the Federal Republic of Germany and Pakistan for the Promotion and Protection of Investments (adopted 25 November 1959, in force 28 April 1962) 457 UNTS 23. 48 Hartley Shawcross, ‘The Problems of Foreign Investment in International Law: Speech’ (1961) 102 Recueil des Cours de l’Académie de Droit International de La Haye 335 contains an explanation of the Abs-​Shawcross Convention. 49 For constitutional reasons, Brazil kept out of this treaty practice. North Korea was a unique exception. 50 The briefs of the US and the arguments made for the revival of regulatory expropriation carrying no compensation in Methanex v United States (2005) 44 ILM 1345 are very reminiscent of the arguments of the developing world. Canada, Australia, Germany, the US, and the European Union are in

Rebuilding Empire through State Contracts  195 The next few paragraphs recount briefly the story of the battle to its present situation and focus on the revivification of the NIEO, which did not die; rather, it was eclipsed by events. Now that the clouds have cleared, its principles remain as vivid as when formulated. One may even announce its triumph. International law needs this story to be recorded as told by one from the non-​Western front. The NIEO could not have become defunct simply because its investment principles had already been transferred into constitutions of states and their investment laws. Every major resource-​producing state believes that the natural resources of the state belongs to its people; this reflects the principle of permanent sovereignty over natural resources. In this sense, there had been an interaction between the norms stated at the international level and those at the domestic level. The domestic law reinforced the norms that developing states espoused as international law. It can well be said that the uniformity in these constitutional principles contributed to a general principle that natural resources of a state belong to its people. This is a more credible general principle than the principle of sanctity of contracts, on which the internationalization theory relies. This is even more so because it restates essentially a principle of Roman law received into international law and into domestic legal systems that a state has control and jurisdiction over the land up to the skies and underneath.51 Leading international lawyers have argued that the principle constitutes a peremptory norm.52 The states also established mechanisms for the working out of the principle by establishing state corporations and vesting management of the resources in them. They were the ones that became responsible for contracts of foreign investment. In the petroleum area, the Indonesian state corporation Pertamina devised a new type of contract—​the production sharing agreement—​that ensured control over the exploitation of petroleum resources in the state oil company. The form of contract became universally used, thereby dispelling any notion of internationalization of foreign investment contracts, an idea that arose largely in the context of petroleum disputes involving the old type of concession agreements. The existence of such types of contracts internalizes control over natural resources including disputes that arise from it. While ultimately the contract itself is the result of power balances reflected in the negotiation of its terms, the fact is that new forms of contracts negating any notion of internationalization were coming en vogue, emphasizing principles in the NIEO. So, in domestic law, the principles of the NIEO had become firmly entrenched and continue to this day to be the dominant feature. favour of doing away with investment arbitration which formed the cornerstone of internationalization. The new ‘balanced’ investment treaties that are made come with many sovereignty centred defences protecting the public interest. 51 Cuius est solum, eius est usque ad coelom et ad inferos. 52 Ian Brownlie, ‘Legal Status of Natural Resources in International Law’ (1979) 162 Recueil des Cours de l’Académie de Droit International de La Haye 245, 255.

196  Muthucumaraswamy Sornarajah The principles of the NIEO underwent an eclipse as the contextual circumstances for its advancement changed.53 The third-​world cohesion began to dissipate with the onset of financial crises, the dissolution of the Soviet Union, and the triumph within the US, now the sole hegemon of a neoliberal philosophy, driven by the ‘Washington Consensus’. It was in this context that a virulent form of investment protection came about, driven by strong investment treaties administered through a system of arbitration under the institutional systems, for example, the International Convention for the Settlement of Investment Disputes. The number of investment treaties catapulted. On their basis, the investment tribunals decided over 465 cases, many of them involving lavish interpretations of the treaty provisions so as to expand the extent of the protection that the treaties were intended by the parties to give to foreign investment protection against expropriation and wrongful treatment. There has been a reaction against investor–​state arbitration due to the expansion of the scope of protection of foreign investment brought about through investment arbitration. This has led to the formulation of restrictions through the reaction of states to these excesses. There are obvious examples of this in recent times. The revival of the notion that regulatory expropriations are non-​compensable is an idea that owes much to the notion of state control over foreign investment contained in the NIEO.54 The ouster of jurisdiction as well as liability on the ground that state regulations on entry, as well as subsequent conduct of the foreign investment, did not comply with domestic laws again asserts control of the host state over foreign investment.55 The new forms of foreign investment create what are referred to as balances against exclusive investment protection by ensuring that a state acting to protect certain interests, for example, labour standards, environmental rules, and the health and welfare of its citizens, are provided defences against liability.56 A renewed interest in the police powers doctrine that enables a state to act in the public interest reinforces notions that are inherent in the NIEO. It would appear that the tenets of the NIEO are revived in these trends. At the least, what can be said is that there is a movement away from the notion that foreign property is sacrosanct and must be protected at all cost. There may be practical reasons for the renewal of this wisdom. As the developed states of Europe and the US are massive recipients of 53 Further see John Linarelli, Margot E Salomon and Muthucumaraswamy Sornarajah, The Misery of International Law: Confrontations with Injustice in the Global Economy (OUP 2018). 54 The notion is sovereignty-​centred in that it seeks to prioritize the public interest over that of the foreign investor. 55 Fraport v Philippines ICSID Case No ARB/​03/​25 (16 August 2005). 56 Increasing numbers of defences to liability are created in the so-​called balanced treaties, which seek to recover control over a state’s right to act in the public interest. In addition to the rediscovery of regulatory, non-​compensable expropriation, the new treaties provide defences to liability on the ground that the measure complained of was justified by the need for the protection of labour standards, the environment, human rights, the welfare, health, preservation of cultural property, and other interests of the public. In addition, the new model treaties like that of India require the foreign investor to follow rules of corporate responsibility, thus opening the way to the responsibility of MNCs, albeit indirectly.

Rebuilding Empire through State Contracts  197 investments from China, India, and other industrializing states, they increasingly become targets of the international law they had created. Pragmatism, not justice, requires withdrawal from a stance of strict protection. It is not necessary to expand on these new developments as they are covered in the literature.57 What this portends is that the NIEO principles are being revived. The recovery of state control over foreign investment was very much an objective of the NIEO. The reaction of states to investment arbitration indicates a revival of that objective. We can observe that the battle for control has been ongoing. Colonial structures are revived but soon meet with resistance. This power game continues in a cyclical fashion with inconsistent victories. The ideological formations remain. The lines of advances and retreats of these formations keep shifting. The battle will go on. Personnel in the formations shift, and thus, China and India, once champions of the third world, are now capital exporters, showing a willingness to change camps. But, despite these changes of personnel, the essential ideological formations remain relatively constant. It would be an error to state that neither ideological disposition suffers total defeat. It may go into eclipse, but circumstances change, enabling revival.

57 Muthucumaraswamy Sornarajah, Resistance and Change in the International Law on Foreign Investment (CUP 2015).

8

(De)colonizing Human Rights Florian Hoffmann and Bethania Assy

I.  Battling human rights from decolonization to colonization (and back) The story of human rights in the decolonization era is a story about a story about a story. It starts with a story about the crucial role the (then) incipient discourse of human rights is deemed to have played in and for the decolonization process. Its crucial plot elements feature the reception of the Universal Declaration of Human Rights (UDHR) by the still-​colonized militants of decolonization, and their subsequent adoption of the language of human rights to articulate their core demands of self-​government, self-​determination, and racial equality. It also showcases an ultimately successful march through the institutions—​in particular of the United Nations (UN), where rights-​based arguments put the colonizing powers against a wall of adverse international public opinion and which led, first, to their withdrawal, and then to the gradual formation of the newly independent states into the ‘third world’.1 It also recounts defining events (the Bandung and Teheran conferences), movements (the Non-​Aligned Movement and the Pan-​African Movement), and concepts (the right to non-​discrimination and the right to development) in order to show the positive and potentially crucial impact human rights have had on the decolonization process and that decolonization has had on the incipient international human rights system. It is the most familiar and, to an extent, still predominant story of human rights and decolonization, widely referenced in human rights textbooks and in UN documents, and, thus, a crucial plotline of the

1 See, for instance, Roland Burke, Decolonization and the Evolution of International Human Rights (University of Pennsylvania Press 2010); Steven LB Jensen, The Making of International Human Rights: The 1960s Decolonization and the Reconstruction of Global Values (CUP 2016); Fabian Klose, Human Rights in the Shadow of Colonial Violence:  The Wars of Independence in Kenya and Algeria (1st edn, University of Pennsylvania Press 2013); Jenny S Martinez, The Slave Trade and the Origins of International Human Rights Law (OUP 2012); Daniel Maul, Human Rights, Development and Decolonization: The International Labour Organization, 1940–​70 (Palgrave Macmillan 2012); 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; see also, generally, Philip Alston, ‘Does the Past Matter? On the Origins of Human Rights’ (2013) 126 Harvard Law Review 2043. Florian Hoffmann and Bethania Assy, (De)colonizing Human Rights In: The Battle for International Law: South-North Perspectives on the Decolonization Era. Edited by: Jochen von Bernstorff and Philipp Dann, Oxford University Press (2019). © The Several Contributors. DOI: 10.1093/oso/9780198849636.003.0009

(De)colonizing Human Rights  199 (post-​1990) grand narrative about the ascendancy of human rights ‘as a fact of the world’.2 Yet, this story has itself of late become the object of storytelling in the wake of a revisionist turn in the historiography of human rights. This second story seeks to deconstruct the earlier one by recounting it as an exercise in anachronistic mythmaking that obscures the ‘real’ role, or rather, lack thereof, human rights allegedly had in the decolonization process. In this re-​telling, human rights have played a less important but more ambivalent role for decolonization, with the clichéd outer layer of the plot being portrayed as no more than the anachronistic back-​projection of contemporary views held by the self-​professed human rights movement.3 It pits that projection against a historically reconstructed ‘reality’ in which the use of human rights by decolonization activists (and then by governments of newly independent states in Africa and Asia) is shown to have been deeply strategic, with rights language frequently serving merely as a cipher, or indeed, as an empty signifier to articulate much broader political demands. It also purports to show how the (former) colonial powers were either unreceptive to rights-​based critique or how they learned quickly to direct it back to their former colonies as a way of political ‘monitoring’. This story, then, is a classical demythologization exercise, where a re-​reading of the historical record is used to contrast a newly revealed ‘reality’ to an established myth.4

2 Eduardo Rabossi, ‘La Teoria de los Derechos Humanos Naturalizada’ (1990) 5 Revista del Centro de Estudios Constitucionales 159; see also Florian F Hoffmann, ‘Shooting in the Dark:  Reflections Towards a Pragmatic Theory of Human Rights (Activism)’ (2006) 41 Texas International Law Journal 403. 3 See, for instance Samuel Moyn, The Last Utopia:  Human Rights in History (Belknap Press of Harvard University Press 2010) (hereafter Moyn, Last Utopia); Samuel Moyn, ‘The Embarrassment of Human Rights’ (2015) Texas International Law Journal: The Forum 1; Jan Eckel, ‘Human Rights and Decolonization: New Perspectives and Open Questions’ (2010) 1 Humanity 111–​35 (hereafter Eckel, ‘Human Rights and Decolonization’); as well as Jan Eckel, Die Ambivalenz des Guten: Menschenrechte in der internationalen Politik seit den 1940ern (2nd edn, Vandenhoeck & Ruprecht 2015); and essays in Stefan-​Ludwig Hoffmann (ed), Human Rights in the Twentieth Century (CUP 2010); although the revisionist literature on decolonization does not squarely map onto the post-​and decolonial approaches in the ambit of the Third World Approaches to International Law (TWAIL), the latter has, in the present context, nonetheless to be considered as both a precursor and companion to the former; see, hence, and now classically, Antony Anghie, Imperialism, Sovereignty and the Making of International Law (CUP 2007); as well as, inter alia, Balakrishnan Rajagopal, International Law from Below: Development Social Movements and Third World Resistance (CUP 2003); James T Gathii, ‘International Law and Eurocentricity’ (1998) 9 European Journal of International Law 184; Luis Eslava and Sundhya Pahuja, ‘Beyond the (Post) Colonial: TWAIL and the Everyday Life of International Law’ (2012) 45 Journal of Law and Politics in Africa, Asia and Latin America-​Verfassung und Recht in Übersee (VRÜ) 195; Luis Eslava, Local Space, Global Life: The Everyday Operation of International Law and Development (CUP 2015); and the contributions in Antony Anghie and others (eds), The Third World and International Order: Law, Politics and Globalization (Nijhoff 2003). 4 For a take on this form of ideology critique, see Susan Marks, ‘Big Brother Is Bleeping Us—​ With the Message That Ideology Doesn’t Matter’ (2001) 12 European Journal of International Law 109; for the classic (Frankfurtian) account, see Max Horkheimer and Theodor W Adorno, Dialectic of Enlightenment: Philosophical Fragments (Gunzelin Schmid Noerr ed, Edmund Jephcott tr, Stanford University Press 2002).

200  Florian Hoffmann and Bethania Assy However, history by itself, or rather, historiographical militancy, will not resolve the debate on the significance, or lack thereof, of human rights in and for decolonization. While human rights discourses are necessarily historically constituted, the use of rights language in a particular (historical) context is bound to transcend historiographical determination on account of its inherent power of (re-​)signification at moments of (intellectual) crisis. As the inconclusive debate on their role in the decolonization process illustrates, human rights were invoked because decolonization resulted in an epistemic crisis occasioned by the very ‘otherness’ of a world after colonialism.5 For this reason, the historiographical ‘battle’ over human rights in the decolonization era provides an important but incomplete part of the picture about the role and significance of human rights. A complementary aspect comes from contextualizing the use of human rights in decolonization by revisiting its use in colonization; it was during the historical colonial encounter that rights language was first used to grapple with the experience of radical alterity. This chapter briefly reviews the contemporary battle over the role of human rights in the decolonization period of the mid-​twentieth century, and examines the way in which Iberian scholars during the sixteenth century colonization period used (natural) rights discourse to (re-​)signify the (Amerindian) other. Hopefully, it then provides a glimpse both of where human rights ‘stand’ in relation to decolonization and of the limits of history in telling this story.

II.  The battle over the historiography of human rights during decolonization The historiographical battle over the role human rights played in the decolonization process can only be understood through the broader discussion that has unfolded over the past decade or so regarding the way the history of human rights ought to be constructed. This discussion involved a debate about the origins and periodization of human rights, which has followed the usual dramaturgy of an established orthodoxy being challenged by a revisionist counter-​narrative.6 On the face of it, it has been a contest over historical facts, that is, over the particular moments on a linear timeline at which the concept of human rights can be said to have emerged and how the concept is then thought to have evolved on that timeline. On a deeper level, however, this querelle is about the semantic unity of the concept of human rights and about whether what is referred to as human rights on different 5 Florian F Hoffmann, ‘International Legalism and International Politics’ in Anne Orford and Florian F Hoffmann (eds), The Oxford Handbook of the Theory of International Law (OUP 2016) 946; and William E Scheuerman, ‘International Law as Historical Myth’ (2004) 11 Constellations 537. 6 Devin O Pendas, ‘Toward a New Politics? On the Recent Historiography of Human Rights’ (2012) 21 Contemporary European History 95, 96; see also Christopher McCrudden, ‘Human Rights Histories’ (2014) 35 Oxford Journal of Legal Studies 1.

(De)colonizing Human Rights  201 points of the timeline can (or cannot) be plausibly connected to form a continuum and, thus, a progress narrative. The spectrum of this exchange has been demarcated by, on one side, an orthodoxy that has assumed both the semantic continuity of (the idea of) human rights over time as well as general progress in their recognition and realization; and, on the other side, a revisionist critique that has denied both semantic unity and (therefore) progress.7 There are nuances within the orthodox reading, with classical ‘linear progress narratives’ attributing cross-​temporal (and cross-​cultural) self-​evidence to the idea of human rights and adopting a teleological account of history as a gradual progression towards their ever greater realization. There are also more recent ‘precise-​timeframe theories’ that focus on different historically significant moments and their impact on the contemporary semantics of human rights.8 However, as revisionist critics of the historiographical orthodoxy point out, it generally remains wedded to a contrived progress narrative and is, therefore, necessarily prone to the eclecticism and overinterpretation of all Whig history.9 Indeed, it is as a reaction to this presumption of continuity and coherence in the history of human rights that a strongly revisionist historiography has positioned itself as a polar opposite to the orthodox narrative. In the words of Samuel Moyn, its grand-​apostle, this anti-​anachronistic ‘new revisionism’ sees as ‘the most troubling shortcoming of the contemporary attempt to give human rights a history [ . . . the distortion of] the past to suit the present’.10 As an antidote, the revisionists have contested the semantic unity of human rights and have preached a ‘discontinuist’ reading of the various events around which the human rights narrative has been constructed.11 While these histories have tended to present themselves as more accurate and ‘realist’ interpretations of the facts, their main argument actually rests on a fundamentally different historiographical approach; where orthodox historiography seeks to inductively (re)construct causal connections between different event contexts (or periods) in order to establish the cross-​temporal meaning of human rights, the revisionist approach starts from a particular premise about that meaning, and then proceeds to find its articulation in a specific event context.

7 Alston (n 1) 2063. 8 Michael J Lacey and Knud Haakonssen, A Culture of Rights: The Bill of Rights in Philosophy, Politics and Law–​1791 and 1991 (CUP 1992); Mary A Glendon, A World Made New: Eleanor Roosevelt and the Universal Declaration of Human Rights (Random House 2002); Johannes Morsink, The Universal Declaration of Human Rights: Origins, Drafting, and Intent (University of Pennsylvania Press 1999); Jay Winter and Antoine Prost, René Cassin and Human Rights: From the Great War to the Universal Declaration (CUP 2013) and Lynn Hunt, Inventing Human Rights: A History (1st edn, W.W. Norton & Company 2008). 9 Pendas (n 6) 95; see also Justin Zaremby, ‘On the Uses and Disadvantages of History for Human Rights Law: Reading Samuel Moyn’s The Last Utopia: Human Rights in History’ (2012) 15 Yale Human Rights and Development Law Journal 155. 10 Samuel Moyn, Human Rights and the Uses of History (Verso 2014) 13. 11 Moyn, Last Utopia (n 3) 20.

202  Florian Hoffmann and Bethania Assy In other words, the former approach seeks to establish meaning from presumed facts, and the latter the facts from presumed meaning. Moyn is a case in point: for him, human rights in their contemporary usage have to be understood (only) as expressions of an anti-​sovereigntist cosmopolitan utopia that springs from the liberal internationalist tradition and that has emerged as a partial replacement of socialism as the primary ideal of emancipatory politics. According to Moyn, this particular understanding of human rights stems from the 1970s and it is, therefore, (only) the period from then onwards that is historically significant for the contemporary meaning of human rights.12 Furthermore, Moyn suggests that what was denoted by the term ‘rights’ in previous periods—​and most particularly, as will be seen, during decolonization—​carries the opposite connotation, notably of appeals to the protection afforded by sovereign statehood and, by implication, to the ideal of sovereign statehood itself. Thus, despite their linguistic similitude, domestic and international (human) rights are entirely different ideas and, in fact, spring not only from different, but from conflicting, utopias. To forcefully read a unified idea of human rights into what to Moyn are disparate historical episodes is not just anachronistic, but rather misses the intrinsic meaning of ‘human rights’. To underscore his point, Moyn particularly has focused on debunking the event clusters that orthodox histories tend to highlight as crucial stepping stones in the evolution of the idea of human rights, starting with the founding of the UN and the drafting of the UDHR, as well as and crucially, the role played by human rights during the decolonization process. Indeed, the latter context is especially important to Moyn’s narrative, as it allows him to contrast the (post-​1970s) internationalist concept of human rights with the sovereigntist use of rights language during decolonization, notably as a mere cipher for claims to self-​determination, to co-​equal development, and against racial discrimination. Yet, to Moyn, more important is the contention that this use of human rights during the decolonization process cannot be seen as a direct legacy of earlier foundational moments, most notably the founding of the UN and the drafting of the UDHR. For Moyn, these earlier foundational moments simply did not exist: thereis neither sufficient evidence to claim that the international community really endorsed human rights at the end of the Second World War, nor were human rights a tangible driving force of international legal discourse as of that moment.13 Indeed, in Moyn’s (history) book, the very term ‘human rights’ only slipped into the UN Charter as a gesture to a liberal (Anglo-​American) public and was never intended to qualify the document’s predominantly realist outlook on the incipient post-​war world.14 While shock over the Holocaust and a brief social-​democratic

12

ibid 210. ibid 44, 176. 14 ibid 47. 13

(De)colonizing Human Rights  203 consensus enabled the drafting of the UDHR in 1948, this did not mark the universalization of those rights previously linked to national citizenship and, therefore, to state sovereignty. Rather, it was a toothless diversion that ultimately only reaffirmed the precedence of the latter over an internationalism oriented towards human dignity.15 By this account, even most liberal international lawyers initially rejected the idea of human rights as legal norms binding sovereign states—​influential minority voices arguing just that, such as Hersh Lauterpacht’s, notwithstanding.16 The early Cold War quarrels over the drafting of the Covenants and the consequent tardiness of their adoption (1966) and entry into force (1976) is taken as further evidence of the lack of commitment by the international community to take human rights seriously.17 Moyn’s revisionist narrative is, of course, just one among a host of attempts in recent years to draw a historically more precise picture of human rights and to, on that basis, either re-​affirm or reject the classical story of conceptual continuity. The decolonization process tends to feature prominently in this querelle, as it is seen, not least by Moyn himself, as a test case for the ideology critique of human rights—​ for, if it can be shown that the actual reference to human rights by many actors across the spectrum during that period were but superstructural reverberations of different causal bases (such as, in Moyn’s case, the quest for self-​determination within a sovereigntist ideological framework) then a strong point can be made that this might be so with regard to other periods and uses of human rights as well. Decolonization, thus, occupies an epistemically privileged position in most revisionist histories. According to Jan Eckel, a fellow revisionist traveller of Moyn, whether the revisionist account of human rights in the decolonization period is deemed plausible or not depends on three distinct areas of inquiry: notably, firstly, on the significance of human rights language for and within anticolonial movements; secondly, on the use of human rights by newly independent states within the UN system; and thirdly, on the reception and appropriation of human rights by the (former) colonial powers during and after decolonization.18 On each of these issues, the recent literature divides into a continuist/​anti-​revisionist and a discontinuist/​revisionist camp, both premised on a critique of the earlier continuous progress narratives, but each applying a different historiographical gaze to draw opposite conclusions. The continuists generally argue that human rights are neither semantically closed nor is their evolution monocausal. They tend to see all uses of the language as pieces of a continually growing human rights jigsaw that evolves in a non-​linear yet interconnected way; thus, they concentrate on filling in blank spaces with what



15

ibid 176. See Hersch Lauterpacht, International Law and Human Rights (Stevens 1950). 17 Moyn, Last Utopia (n 3) 176. 18 Eckel, ‘Human Rights and Decolonization’ (n 3) 113. 16

204  Florian Hoffmann and Bethania Assy they deem to be forgotten or underappreciated pieces. Recent works in this vein include, inter alia, Roland Burke’s Decolonization and the Evolution of International Human Rights (2011),19 Meredith Terretta’s ‘We Had Been Fooled into Thinking that the UN Watches over the Entire World”: Human Rights, UN Trust Territories, and Africa’s Decolonization’ (2012),20 Fabian Klose’s Human Rights in the Shadow of Colonial Violence (2013),21 or Steven Jensen’s The Making of International Human Rights—​The 1960s, Decolonization and the Reconstruction of Global Values (2016).22 For the most part, these pieces build their case on the basis of (re-​)readings of specific episodes, such as Terretta on the role of anticolonial activists both in the third world itself—​here the British and French Cameroons—​and in the West in relation to the UN’s Trusteeship system. Klose on colonial power conduct during the colonial wars in Kenya and Algeria, Jensen on the role two specific Third World states, Jamaica and Liberia, played in the construction of the UN human rights system, as well as on the role the issue areas of race and religion played in this context. Burke, by contrast, takes a longer-​term view and focuses on what he sees as four moments that symbolize the trajectory of human rights in relation to decolonization: the Bandung conference in 1955; the ‘turn to self-​determination’ in the early 1960s; the descent to hypocrisy during the First World Conference on Human Rights in 1968; and the emergence of the cultural relativist critique of human rights from with the third world itself in the 1980s. Burke stresses, among others, the initial importance that the presumed universality of the international protection of human rights had for newly independent states, although he also highlights that much of the third world’s early support for international petitioning came from autocratic regimes.23 Although partly critical of each other for overlooking either of Eckel’s three dimensions, these contemporary continuist readings share the conviction that repeated invocation of the language of human rights during the decolonization period was not merely coincidental and strategic, neither on part of anticolonial activists in the third world and the West, nor on part of new third-​world governments acting within the UN machinery, or even on part of the (former) colonial powers. And there is also a consensus (albeit subtle) among authors in this line that the term ‘human rights’ forms a bracket around the period between the 1940s and the 1970s that cannot be argued away. This has, of course, been the contention of the discontinuist/​revisionist fold in Moyn’s wake. With regard to decolonization, it preceded Moyn’s account, inter alia, with Brian Simpson’s seminal Human Rights and the End of Empire (2001)24

19 Burke (n 1). 20 Terretta (n 1). 21 Klose (n 1). 22 Jensen (n 1). 23 Burke (n 1) 91. 24 Alfred WB Simpson, Human Rights and the End of Empire: Britain and the Genesis of the European Convention (OUP 2004).

(De)colonizing Human Rights  205 and Mark Mazover’s No Enchanted Palace: The End of Empire and the Ideological Origins of the United Nations (2009),25 both of which seek to relativize the anti-​ revisionist argument about the crucial and positive role played by the UN in the formation of the international human rights regime of today. Following closely in Moyn’s trail are then Jan Eckel’s Die Ambivalenz des Guten: Menschenrechte in der Internationalen Politik seit den 1940ern (2014),26 which represents perhaps the most thorough revisionist reading of the same period covered by Burke. While he actually agrees with much of Burke’s and Klose’s work, from the picture that emerges Eckel draws different conclusions, notably, that despite the seemingly ubiquitous reference to human rights in all three of his issue areas, ‘anticolonialism, anti-​neocolonialism, anti-​imperialism, anti-​racism, anti-​discrimination, and anti-​apartheid [remained] the foremost catchwords’ of the anticolonial imagination, and not human rights.27 Indeed, he goes as far as calling that imagination an ‘ideology ex negativo’ driven, on both sides of the colonial divide, by stylized antagonisms for which human rights became modes of articulation, rather than expressions of a positive and concrete vision.28 Other longer-​duré analyses, such as Roger Normand and Sarah Zaidi’s Human Rights at the UN: The Political History of Universal Justice (2008) add to this cautious scepticism.29 Nor is the decolonization process that spans, roughly, the late 1950s and the 1960s a human rights game changer in Moyn’s book. If others have seen decolonization not only as an important event cluster of its own, but also as one of the main drivers behind the global phenomenon that the 1960s would become—​and which, in turn, produced the ‘conditions of possibility’ for those ‘1970s’ about which Moyn is concerned—​30 it is not so in his historiography of human rights. For anti-​colonialism, as he terms the ideological framework of decolonization, and the reactions against it are here interpreted to have used the language of human rights not only ‘merely’ strategically but also in a mindset that starkly differs from the internationalism he identifies with (post-​1970) human rights. In essence, the anti-​ colonial quest for self-​determination, that is, for co-​equal state sovereignty, is here first strategically framed as both a right in and of itself, and as a movement for the realization of (human) rights in the context of (colonial) racial discrimination.31 If, to Moyn, the UDHR was at most a reference to the ‘rights of man’ enjoyed under the auspices of national citizenship, at worst the mere attempt by (European) Christian-​democratic conservatives to (re-​)appropriate rights-​language to counter 25 Mark Mazower, No Enchanted Palace: The End of Empire and the Ideological Origins of the United Nations (Princeton University Press 2009). 26 Burke (n 1). 27 Eckel, ‘Human Rights and Decolonization’ (n 3) 115. 28 ibid. 29 Roger Normand and Sarah Zaidi, Human Rights at the UN: The Political History of Universal Justice (Indiana University Press 2008). 30 See Fredric Jameson, ‘Periodizing the 60s’ (1984) 9 Social Text 158. 31 Moyn, Last Utopia (n 3) 84.

206  Florian Hoffmann and Bethania Assy the socialist/​communist utopia, it provided only the stage props for the great decolonization play that was to unfold shortly thereafter.32 Human rights only properly entered the anti-​colonial frame afterwards, and then only in at once haphazard and paradoxical ways, for, as Moyn seeks to show, outside of the sui generis claim for a ‘right to self-​determination’, general rights language played not only a merely ancillary role in anti-​colonial discourse, but also was used in parallel by opponents of decolonization to diffuse claims for self-​determination.33 If anything, human rights gained some anti-​colonial currency on account of the disappearance of a concrete commitment to self-​determination, originally enshrined, as it was, in the Atlantic Charter, in the later Dumbarton Oaks documents, and the UDHR itself, which led some anti-​colonial activists to invest into the post-​UDHR debates around the drafting of the Covenants.34 Yet, Moyn insists that insofar as both the anti-​and the pro-​colonial use of human rights in this period was unavoidably bound up with advocacy for or opposition against self-​determination, the vision behind that use was fundamentally different from the internationalist vision that emerged in the late 1970s. The 1955 Bandung conference, all-​important for the formation of an (anti-​ colonial) third-​world consciousness, is taken as a case in point: it at once endorsed the UDHR, yet surrounded it with co-​equal commitments to national sovereignty and non-​interference; whereas the latter represented a broad consensus at the conference, the former only emerged after considerable debate, not least on account of the evident lack of (post-​colonial) universality of the (still-​colonial) UDHR.35 Likewise, Moyn largely dismisses two further developments in the decolonization context that have often been held up as (pre-​1970s) stepping stones towards the contemporary (internationalist) understanding of human rights. One concerns the use of human rights in ad hoc petitioning both to the Trusteeship Council and to the Commission on Human Rights, the other, the widespread introduction of bills of rights in post-​independence constitutions. As to the former, Moyn acknowledges the importance of rights-​oriented petitioning for the way the trusteeship system evolved in the wake of decolonization, but claims that this did not establish an independent standing for the rhetoric of human rights apart from or on top of claims for self-​determination.36 Ultimately, the redemptive horizon at this stage remained independence, and human rights mere instruments thereto. Likewise, the widespread adoption of constitutional bills of rights in newly independent states is seen by Moyn as more of a gesture to the (status) symbols of the aspired Westphalian statehood than as earnest expressions of interest to subordinate the incipient nation-​building projects to individual rights claims.37 In fact, some of the

32

ibid 44; see also Pendas (n 6) 44.

33 Moyn, Last Utopia (n 3) 118. 34

ibid 100. ibid 94; see also Burke (n 1) 13. 36 Moyn, Last Utopia (n 3) 109; Terretta (n 1). 37 Moyn, Last Utopia (n 3) 111. 35

(De)colonizing Human Rights  207 former colonial powers, after initial scepticism, came to see bills of rights as a way both to protect (White) minority interests and to ‘condition’ the new governments in their conduct, not least through the incipient UN (human rights) machinery.38 Lastly, Moyn points to the persistent ambivalence within the anti-​colonial movement as to the means of revolution, notably violence or non-​violence. While even voices arguing for armed resistance would occasionally frame their vision in terms of the unfulfilled promise of human rights, the inherent contradiction this implied effectively sidelined the moral force of such arguments. And even those favouring non-​violent means rarely used human rights as expressions of their utopia.39 It is, hence, according to Moyn, only once Western imperialism is transformed from direct colonial rule to indirect forms of (economic) control, and once, therefore, conditions within the new third world move into focus, that human rights start to take off—​conditions that begin to be met only in the 1970s.40 Hence, the historiographical divide over the role of human rights in decolonization is no longer one between an (over)generalizing anachronism and a differentiating historicism. Instead, the debate takes place within a (broadly) historicist horizon and is driven by disparate interpretations of an ever-​more finely-​grained picture of the historical facts. Where, for instance, the continuist position musters the well-​documented reference to human rights in anti-​colonial thought to underscore its argument, the discontinuist position draws attention to the overall (smaller) proportion that human rights references represent in comparison to all documentary evidence of anti-​colonial thought. Likewise, where the continuists tend to focus on the UN to showcase rights-​oriented anti-​colonial activism, the discontinuists point out that the UN itself was less relevant to the decolonization process than the UN-​centric reading suggests. Indeed, to an extent, the debate between continuists and discontinuists appears to have yielded to minute quarrels over the method by which particular narratives are constructed, which actors and institutions are deemed important, and what type of documentary evidence is deemed as more or less expressive of their attitudes and positions. Are official pronouncements sufficient to fathom either side’s thinking, or do behind-​the-​scenes records and travaux-​préparatoirs need to be considered? Are elite or grassroots attitudes more relevant for any claim about the salience of human rights during decolonization, and how, if at all, can—​or should—​authentic commitments to human rights be distinguished from ‘shrewd political calculations’?41 Ultimately, the debate is about a number of underlying assumptions and their historical plausibility, notably, whether the particular use of rights language during the decolonization period (1950s and 1960s) forms—​or doesn’t form—​a semantic



38

ibid 114. ibid 115. 40 ibid 117. 41 Eckel, ‘Human Rights and Decolonization’ (n 3) 115. 39

208  Florian Hoffmann and Bethania Assy connecting link between their earlier (1940s) and later (1970s onwards) connotations; whether rights language played—​or didn’t play—​a privileged role in articulating the decolonization agenda on part of anti-​colonial activists and/​or the response to the latter by colonial powers (and their publics); whether—​or not—​the decolonization context was relevant for the emergence of the international human rights (protection) regime within the UN; and, inversely, whether—​or not—​the incipient UN human rights machinery impacted the decolonization process. In essence, the continuists affirm all four hypotheses, whereas the discontinuists are sceptical. However, if this debate has produced a highly differentiated picture of the archival evidence, it has, if anything, underlined the openness of the question of the role of human rights during decolonization. For while rights human rights can clearly be found in the discourses of virtually all actors, their precise meaning to each actor, as well as their aggregate impact, remain indeterminate. And no amount of additional evidence is likely to change this, as both positions are affected by what could be termed a hermeneutic ‘problem of induction’, namely, that within a certain set of premises, no amount of additional evidence will corroborate the correctness of the premises vis-​à-​ vis their opposite, but will tend to merely reinforce them.42 History alone is not going to answer the question. What lacks is a complementary inquiry about why human rights appear in the discourses of virtually all actors as one way to signify their particular aspirations. One direction to look for clues is backwards, notably, to the colonization period and the way human rights came then to be used to accommodate the experience of radical alterity within a given set of premises.

III.  Looking back to see ahead: human rights during the colonization period In the sixteenth-​century context of the colonization of the Americas, the concept of (natural) rights was introduced by Iberian counter-​reformation scholastics in and around the ‘School of Salamanca’. It was an intellectual move that sought to respond to the experience of radical alterity in the encounter with Amerindian civilizations that seemed, to contemporary Europeans, at once highly sophisticated and entirely alien. 43 The latter posed a challenge to a European narrative that, at 42 See Aviezer Tucker (ed), A Companion to the Philosophy of History and Historiography (Wiley-​Blackwell  2011). 43 As nomenclature varies across different regions in the Americas, the common (anthropological) denomination Amerindian shall be used here; and in relation to the School of Salamanca, we shall, despite the significant differences between the authors commonly counted as belonging to the School, refer to them collectively as the ‘Salamancans’ on the basis of the assumption that there is a broad core of shared ideas that unite all of its exponents; see, inter alia, Martti Koskenniemi, ‘Colonization of the ‘Indies’: The Origin of International Law’ (2009) talk at the University of Zaragoza, published in Yolanda Gamarra Chopo (ed), La idea de América en el pensamiento ius internacionalista del

(De)colonizing Human Rights  209 that moment, was itself being challenged, inter alia, by the ongoing reformation. The Salamancans’ response to this crisis has, of course, become one of the most referenced moments in (post/​de-​)colonial historiography for the role it played in the formation of international law, not least because of its reappropriation of the language of natural rights as a means to articulate the relationship between human beings and the incipient state system. Like with the moment of decolonization, its historiography has also been deeply contested, with a conventional position that has seen the use of natural rights as mitigating the colonizing universality of the incipient ius gentium, and a strongly revisionist position that has viewed these same natural rights as instruments of colonial domination.44 Yet—​and arguably—​this debate has mostly focused on the impact of Salamancan thought on the European history of ideas and it has tended to leave the latter’s significance as a response to the experience of radical alterity vis-​à-​vis the Amerindian encounter (relatively) underexplored. While this focus on European reception history remains crucial for understanding the deep coloniality of the international legal project, it is bound to underestimate the extent to which the Salamancans’ resort to rights language was also their particular way of coming to grips with the experience of radical alterity—​ in the form of Amerindian—​from within their existing (scholastic) framework of reference. As (very) briefly outlined below, if seen in this light, certain aspects of Salamancan natural rights theory come to the fore that highlight the power of (re-​) signification that the language of human rights has had at this foundational moment. On the face of it, this is, of course, a counterfactual contention. As Giuliano Gliozzi argues in a seminal piece on the birth of anthropology as colonial ideology, the sixteenth-​century literature on the ‘conquest’ has tended to be simplified to a reading in which the West constructs itself and its others through stylized colonial binaries, such us ‘good versus bad savage’, ‘civility versus barbarism’, and ‘rationality versus bestiality’.45 Instead, what marks out the Salamancan literature is a deep ambivalence flowing from their quest to render the experience of radical alterity consistent with their siglo XX: Estudios a propósito de la conmemoración de los bicentenarios de las independencias de las repúblicas latinoamericanas (Institución Fernando el Católico 2010); Martti Koskenniemi, ‘Vitoria and Us: Thoughts on Critical Histories of International Law’ (2014) 22 Rechtsgeschichte-​Legal History 119. 44 For the first position, see Pablo Zapatero, ‘Legal Imagination in Vitoria: The Power of Ideas’ (2009) 11 Journal of the History of International Law 221; Georg Cavallar, ‘Vitoria, Grotius, Pufendorf, Wolff and Vattel: Accomplices of European Colonialism and Exploitation or True Cosmopolitans’ (2008) 10 Journal of the History of International Law 181; for the latter position, see Anghie (n 3) 13; and José-​ Manuel Barreto, Human Rights from a Third World Perspective: Critique, History and International Law (Cambridge Scholars Publishing 2013); see generally Koskenniemi (n 43). 45 See Giuliano Gliozzi and Frank Lestringat, Adam et le Nouveau Monde:  La naissance de l’anthropologie comme idéologie coloniale; des généalogies bibliques aux théories raciales; 1500–​1700 (Théétète Éd 2000); see also Tzvetan Todorov, The Conquest of America:  The Question of the Other (University of Oklahoma Press 1999).

210  Florian Hoffmann and Bethania Assy scholastic mindset, while preserving the latter’s original premise of (European) epistemic supremacy and its corollaries for the formation of international law.46 The deep otherness of Amerindian populations and the concomitant need to engage with a radically diverse symbolic universe posed an enormous intellectual challenge to those attempting to translate indigenous categories into the scholastic rationality of contemporary Catholic Christianity.47 The Salamancans’ objective was, thus, to make sense of the Amerindian universe from within the Catholic missionary setting, which formed the horizon of their practical experience, but stood in an ambivalent relationship with the secular colonial project.48 It is in this specific context that the concept of natural rights presented itself as one line of attack against the legitimation of conquest sovereignty. In this struggle to square the static Aristotelian category of humanity with the historical facticity of cultural difference, the Salamanca School notoriously resorted to the earlier concepts of ius naturale, ius gentium, and ius civile and grafted them onto the scholastic dichotomy between divine law and human law.49 Divine law, which was deemed to govern the whole universe and which only existed in the divine mind, was, in turn, divided into natural divine law and positive divine law. The former connoted the participation of all humans in the divine law by virtue of the social and rational capacity to spontaneously comprehend common principles. The latter consisted of human law, which, even though derived from natural law, was created by humans and reflected the singularity of each community. It was, in turn, sub-​divided into an ius gentium and an ius civile, with the former also deemed to derive from natural law and concerning the laws governing the peaceful co-​existence of sociable subjects, and the latter incorporating the precepts of civil law. With the ius gentium, thus, set between divine natural law and human positive law, it became, for the Salamancans, a conceptual staging

46 See, inter alia, Anghie (n 3) 23; Koskenniemi (n 43) 121; and Peter Fitzpatrick, ‘The Revolutionary Past: Decolonizing Law and Human Rights’ (2014) 2 Metodo International Studies in Phenomenology and Philosophy 117, 118; Monica Garcia-​Salmones Rovira and Luis Eslava, ‘Jurisdictional Colonization in the Spanish and British Empires:  Some Reflections on a Global Public Order and the Sacred’ in Hélène Ruiz Fabri, Jana Gogolin and Rüdiger Wolfrum (eds), Select Proceedings of the European Society of International Law (Hart 2010). 47 Giuseppe Tosi, ‘Sins Against Nature as Reasons for a ‘Just War’: Sepúlveda, Vitoria and Las Casas’ in Alfredo S Culleton and Roberto H Pich (eds), Right and Nature in the First and Second Scholasticism (Brepols 2014). 48 For early accounts of this see, for instance, Robert W Carlyle, A History of Medieval Political Theory in the West (W. Blackwood and Sons 1903); Otto V Gierke, Natural Law and the Theory of Society:  1500 to 1800 (The Lawbook Exchange 2003); see also Knud Haakonssen, Natural Law and Moral Philosophy: From Grotius to the Scottish Enlightenment (CUP 1996) and Richard Tuck, The Rights of War and Peace: Political Thought and the International Order from Grotius to Kant (OUP 1999). 49 See, inter alia, Kaius Tuori, ‘The Reception of Ancient Legal Thought in Early Modern International Law’ in Bardo Fassbender, Anne Peters and Simone Peter (eds), The Oxford Handbook of the History of International Law (OUP 2012) 1016; and Randall Lesaffer, Peace Treaties and International Law in European History: From the Late Middle Ages to World War One (CUP 2004) 225.

(De)colonizing Human Rights  211 ground for the encounter between nature and culture in and through the contact with Amerindia.50 To understand the specific take the Salamancans had on natural law and the ius gentium, we must consider an originally patristic distinction, later taken up by Thomas Aquinas, between paganism and Christianity.51 It presumed the pre-​ existence of two epochs in world history: an age of innocence (the golden age before the Fall), which the Salamancans identified with the Amerindian universe and which was deemed to be governed by natural law; and an age of sin (the iron age after the Fall) governed by the law of nations (ius gentium). This distinction implied, of course, that the law of Amerindian populations had to be considered as originary, received prior to the law of nations, and, thus, necessarily a form of (Amerindian) ius naturale. As Sílvia Loureiro showed, several conclusions derived from this premise became important conceptual tools for dealing with the Amerindian ‘problem’.52 Firstly, the original sovereigns of the people of the New World had to be considered as legitimate—​they had both ownership of the land and authority over its people (dominium jurisdictionis vel auctoritatis); secondly, the enslavement of gentile peoples was incompatible with the contemporary legitimation of slavery, as it was forbidden to subject a previously free and peaceful people without just cause and without any (purported) benefit to those enslaved; it must, of course, here be noted that the Salamancans notoriously did not apply this logic to the enslavement of Africans, which represents an evident aporia in their naturalism and underlines the ambivalence of their Amerindian approach.53 Thirdly, based on Thomas Aquinas, the doctrine of property ensured that in the state of nature all things were deemed to have been common and the possession of property (dominium proprietatis) was a natural right.54 Hence, for the Salamancans, both Amerindian dominium jurisdictionis vel auctoritatis and dominium proprietatis were rooted in natural law and natural right(s). As such, the correlation between ius gentium and ius naturale was more ambiguous than is commonly assumed and it led to a more complex and paradoxical conception of the relationship between nature and culture, for the postulate of the existence of an Amerindian ius gentium required the assumption that the ius naturale was 50 See: Camilo B Trelles, ‘Francisco Suarez (1548-​1617)’ (1933) 43 Recueil des Cours de l’Académie de Droit International de La Haye 386, 426. 51 Gliozzi and Lestringat (n 45); and Silveira Loureiro, ‘By What Right? The Contributions of the Peninsular School of Peace for the Basis of International Law of Indigenous Peoples’ (2013) 5 Goettingen Journal of International Law 9; see also Pedro Calafate and Silvia M Loureiro, ‘A Escola Peninsular da Paz: a contribuição da vertente portuguesa em prol da construção de um novo direito das gentes para o século XXI’ (2013) 13 Revista do Instituto Brasileiro de Direitos Humanos 262. 52 Loureiro (n 51) 17. 53 See Walter D Mignolo, ‘The Many Faces of Cosmo-​ polis:  Border Thinking and Critical Cosmopolitanism’ (2000) 12 Public Culture 721; and Ashley J Bohrer, ‘Just Wars of Accumulation: The Salamanca School, Race and Colonial Capitalism’ (2018) 59 Race & Class 20. 54 Pedro Calafate, Da origem popular do poder ao direito de resistência: Doutrinas políticas no século XVII em Portugal (Esfera do Caos 2012).

212  Florian Hoffmann and Bethania Assy mediated by the ius gentium—​that is, by the natural common sense of each people and of each culture. On the basis of this construct it then became possible to see Amerindian title as an original right and, thus, as prior to the law of nations—​a notion that amounts to a recognition (of sorts) of an Amerindian jusnaturalism.55 The attribution of rights to Amerindian populations, including in relation to their (own) political and social organization, derives from the fact that they were deemed to have inhabited the new world before the arrival of the ius gentium. For that reason, Amerindian original rights had necessarily to be grounded in natural law, which, in turn, means both that natural law is capable of accommodating cultural diversity, and that the subsequent ius gentium, as a derivative of natural law, must also be premised on this diversity. Pedro Calafate, among others, has drawn attention to this entanglement of universal principles with a conception of radical plurality. For Calafate, it represents the essence of a baroque form of thinking that is symbolized by the labyrinth that transgresses, compromises, and dispenses with abstract rationality.56 Indeed, the discussion around natural law did not take place around a set of purely speculative and abstract principles, but instead focused on a realist conception of natural rights founded on the consonance with ‘reason’, but also on the backdrop of a radical openness to historical otherness.57 Hence, the very complexity of the Salamancan argument on natural rights is due to their attempt to situate it within historical time as opposed to within a (mere) abstract universality. As such, the ius gentium becomes effectively the historical expression of natural law, with the latter’s conception of rationality being tied to the concreteness of the Amerindian experience. Within the shell of late scholastic universalist realism, that experience then opened up the space to think its opposite—​notably, a realist universalism based on the factual plurality of humans and justified not by abstract principle, but rather by cultural particularity. Thus, the Salamancans’ conception of natural law, to use Ambrosio Gomez’ expression, can be read to amount to a non-​relativist multicultural jusnaturalism. It expresses the shared access to a universal, which ties together the ius naturale and the ius gentium. At the heart of this reading lies the contention that the universalization of the ius naturale on account of reason can only be thought historically and empirically, notably, through the concreteness of the factual experiences of the other, which, in the case of the Salamancans, came in form of the Amerindian world. If Francisco de Vitoria recognized this only tentatively and reluctantly, Bartolomé de las Casas went all the way when he directly engaged with what at the 55 For this notion, see Ambrosio Velasco Gómez, ‘Las ideas republicanas para una nación multicultural de Alonso de la Veracruz’ in Carolina Ponce Hernández (ed), Innovación y tradición en fray Alonso de la Veracruz (Facultad de Filosofía y Letras, UNAM 2007). 56 Calafate and Loureiro (n 51). 57 Carolina Ponce Hernández (ed), Innovación y tradición en fray Alonso de la Veracruz (Facultad de Filosofía y Letras, UNAM 2007).

(De)colonizing Human Rights  213 time was considered to be a primary sign of the radical otherness of Amerindians—​ cannibalism. In fact, not only did he mount a culturalist defence of the practice, but he sought to invert its connotation, showing it to be culturally superior to the Spanish conquistadors and thereby rendering the latter as the true ‘barbarians’.58 With this move, as Enrique Dussel recently argued, Las Casas makes a highly innovative contribution to at least two of the core themes of his times—​namely, how to deal with radical otherness and whether that otherness could, by right, be conquered.59 Unlike some of the more influential Salamancans, such as Vitoria, las Casas was immersed in the Amerindian world and felt compelled to think about the epistemological consequences of the encounter with radical alterity from within this context, even if still in an essentially European cognitive frame. Although most subsequent interpretations of the Salamancan literature have centred on either the well-​known defence of natural bondage by Juan Ginés de Sepúlveda or on its contention that rationality was a (mere) prerequisite for conversion, the figure of the ‘natural-​cultural’ Amerindian that emerged from this debate contradicts either position.60 In this vein, Anthony Pagden has argued that the Salamancans, in order to avoid at once the ‘secular’ relativism of their contemporary Michel de Montaigne and of Sepulveda’s denial of the humanity of Amerindians, ended up concocting a new doctrine of universal natural rights.61 To modern (Eurocentric) eyes, this paradoxical effort to decode and defend indigenous culture without giving up the notion of natural law has a bearing on the deadlocked contemporary dispute between abstract universalism and pure cultural relativism. Seen from this perspective, and despite their irreducible entanglement with colonial violence, the Salamancans can be read as developing a new ‘multi-​naturalistic’ vocabulary that not only challenges the particular rationality of (European) modernity, but also incorporates an archaic perspectivism based on the historically contingent experience of Amerindia.62 58 See Alfredo S Culleton and Roberto H Pich (eds), Right and Nature in the First and Second Scholasticism (Brepols 2014) and Quentin Skinner, Foundations of Western Political Thought (CUP 2004) 170; and Bartolomé de las Casas, Paulino Castañeda Delgado and Angel Losada, Obras Completas (Alianza Editorial 1988). 59 Actas del Primer Simposio Internacional del Pensamiento Iberoamericano (Enrique D. Dussel, 2002). 60 For the former debates, see classically Lewis Hanke, All Mankind is One: A Study of the Disputation between Bartolomé de Las Casas and Juan Ginés de Sepúlveda in 1550 on the Intellectual and Religious Capacity of the American Indians (Northern Illinois University Press 1994). 61 See Casas, Castañeda Delgado, and Losada (n 58); and Anthony Pagden, The Fall of Natural Man: The American Indian and the Origins of Comparative Ethnology (CUP 1986). 62 Represented, in contemporary anthropological theory, by, amongst others, Eduardo Viveiros de Castro; see, for instance, Eduardo B de Castro and Gregory D Morton, The Inconstancy of the Indian Soul: The Encounter of Catholics and Cannibals in 16th-​Century Brazil (Prickly Paradigm Press 2011); and Eduardo Viveiros de Castro and Peter Skafish, Cannibal Metaphysics (University of Minnesota Press 2014); for a broader reflection of some of the repercussions of this logic on the conception of subjectivity, see Bethania Assy, ‘Insurgent Subjectivities and the Political Empowerment of the Streets’ (2014) 7 Revista di Pratica Filosofica e Scienza Umane 118; and Bethania Assy, ‘Injusticia Social, Empoderamiento Político e Subjetivación’ in Roseni Pinheiro and others (eds), Cultura do cuidado e o cuidado na cultura: dilemas, desafios e avanços para efetivação da integralidade em saúde no Mercosul (Cepesc Editora 2015).

214  Florian Hoffmann and Bethania Assy

IV.  Beyond the battle: human rights as signifiers of  the (de)colonial other Zooming out again, the scenario that emerges shows both the colonization and the decolonization experiences as marked by the encounter with something outside of the established epistemic horizon—​something genuinely ‘other’ that challenges the integrity of these horizons and therefore provokes a new type of response. In both cases, the established epistemic horizon is the European mode of governmentality as it emerged between the periods of colonization and decolonization—​a mode inherently premised on colonialism as a form not just of control over people and territory but also (and primarily) of epistemic domination. It involves a particular rationality that constitutes the specific techniques of power that the ordering of people and space in what would become the Westphalian world requires—​a rationality that would come to be epitomized in sovereign statehood and which is articulated by what would eventually be called international law.63 The latter is much more than a set of rules devised by states to regulate relations among each other with a view to (thereby) control access to sovereignty as the key to their hegemony. It is, in the Foucauldian sense, a discourse—​that is, a specific configuration of power/​knowledge that constitutes an epistemic horizon, or a mental map by which people know and act in the world.64 This map of uniform states and nationalities divided by clear-​cut borders did not, of course, emerge as a representation of the world ‘out there’ which, in the sixteenth century as much as during the 1950s and 1960s, consisted of much more than what is represented on the map. It was always merely a simulacrum of the world, superimposed over its raw plurality to produce a stratified order privileging those purporting to be at its top. Over time—​notably in the period during which the parochial and contingent European map was forcibly imposed on everyone and everything across the globe—​it merged with established truth and became one of the mythological foundations of the modern world. International law would, hence, at once draw in what lay yet outside of it and reaffirm itself through the antagonistic differentiation against that outside. The other was, hence, transcribed into the language and categories of the inside, yet it simultaneously served as the indicator for an exterior that was framed as the inside’s opposite. It is, arguably, this paradoxical move that characterizes the specific imperiality of international law and, indeed, of modernity itself, a continuous

63 Florian F Hoffmann, ‘Discourse’ in Jean D’Aspremont and Sahib Singh (eds), Fundamental Concepts for International Law (Edward Elgar Publishing forthcoming). 64 See, inter alia, Thomas Lemke, ‘Foucault, Governmentality, and Critique’ (2002) 14 Rethinking Marxism 49; Nikolas M Rajkovic, ‘ “Global Law” and Governmentality: Reconceptualizing the “Rule of Law” as Rule “through” Law’ (2012) 18 European Journal of International Law 29; Ben Golder, ‘Foucault and the Incompletion of Law’ (2008) 21 Leiden Journal of International Law 747.

(De)colonizing Human Rights  215 oscillation between inclusion and exclusion, recognition and rejection, universalization and particularization. This ambivalence and in-​betweenness has come to be embodied in certain (legal) concepts such as human rights, for they at once express an abstraction from individual humans in the name of a (Eurocentrically defined) humanity and a recognition of individual dignity on account of that humanity. The Salamancan resort to human rights in their effort to recognize Amerindians as (other) humans, while at the same time allowing for the incorporation of their world into the European map, is a case in point. For human rights are here rendered polyvalent by the application of their universalist logic to a scenario outside of it, the result being both contradictory and coherent, hegemonizing and self-​relativizing. Hence, while Salamancan thought is clearly woven into the colonialist fabric of what would become international law, it cannot be reduced to it, in the same vein as the idea of human rights applied to Amerindians cannot be reduced to epistemic imperialism. The complex repercussions that the Salamancan position generated beyond the European debate, notably in the Americas itself, and the ways in which human rights ended up being semantically re-​appropriated by different interlocutors across the (colonial) board, shows that, as a discourse, they are fundamentally marked by semantic indeterminacy and openness. It is arguably this aspect that bestows on human rights their particular power of (re-​)signification in moments of intellectual crisis—​for example, the period of decolonization. For it is at moments of transition during which established vocabularies are challenged by radically new experiences and cognitive horizons, that the language of human rights has, time and again, been resorted to in order to (re-​)signify what cannot yet be signified. This power is not grounded in concrete universalities or absolute semantic identities, but in the diverse discursive practices of people here, and elsewhere.

9

Picking Battles Race, Decolonization, and Apartheid Rotem Giladi*

I.  Introduction If race had been an analytical category in international law,1 when did that category lose its relevance? What role, if any, did decolonization have in the ‘de-​racialization’ of international law—​to echo Theodor Meron’s claim of the ‘humanization’ of international law in the post-​war era?2 These are weighty questions. This chapter, however, is more limited in scope. It focuses on the effect that decolonization had on the question of race in international law. After all, decolonization sought to achieve concrete political aims. These may well have involved reversing the consequences of the operation of racial inequality and exclusion underwriting international law in the nineteenth century.3 But, if making race irrelevant had been among the goals of agents and movements of decolonization, it was at most a tactical, not a strategic, goal. What follows are preliminary reflections and observations on the effects of decolonization on the race category in international law. These are drawn, in particular, from the vantage point of the battle against apartheid that culminated, in 1973, in the adoption of the United Nations Apartheid Convention.4 Rather than engaging with the construction of norms or offering a systematic account of the * This research received funding from the European Research Council under the European Union’s Seventh Framework Programme (FP/​2007–​2013)/​ERC Grant Agreement No. 615564. I thank Professor Louise Bethlehem for the research fellowship in her project ‘Apartheid—​The Global Itinerary: South African Cultural Formations in Transnational Circulation, 1948–​1990’ and for her invaluable support, advice, and comments. 1 Ediberto Roman, ‘A Race Approach to International Law (RAIL): Is There a Need for Yet Another Critique of International Law?’ (2000) 33 University of California Davis Law Review 1519. 2 Theodor Meron, ‘The Humanization of Humanitarian Law’ (2000) 94 American Journal of International Law 239; recently, I explored this continuity in the laws of war in respect of an episode at the conclusion of the First World War: Rotem Giladi, ‘The Phoenix of Colonial War: Race, the Laws of War, and the “Horror on the Rhine” ’ (2017) 30 Leiden Journal of International Law 847 (hereafter Giladi, ‘The Phoenix’). 3 E.g. Martti Koskenniemi, The Gentle Civilizer of Nations: The Rise and Fall of International Law 1870–​1960 (CUP 2001). 4 International Convention on the Suppression and Punishment of the Crime of Apartheid (adopted 30 November 1973, entered into force 18 July 1976) 1015 UNTS 243. Rotem Giladi, Picking Battles In: The Battle for International Law: South-North Perspectives on the Decolonization Era. Edited by: Jochen von Bernstorff and Philipp Dann, Oxford University Press (2019). © The Several Contributors. DOI: 10.1093/oso/9780198849636.003.0010

Race, Decolonization, and Apartheid  217 travaux préparatoires of the Apartheid Convention, this chapter delves into a number of episodes forming its broader historical, political, and legislative context. These give rise to exploratory claims on the effects of decolonization on the race category. Much-​neglected by the international law (and diplomatic) history literature, in the Apartheid Convention decolonization produced the most focused, perhaps even radical, reading of race and international law. Earlier legal texts framing decolonization, such as the 1960 UNGA Resolution 1514 or the 1970 Friendly Relations Declaration, had referenced race only fleetingly.5 The 1966 Covenants did enunciate the right to self-​determination in their Common Article 1, and prohibited distinction or discrimination on grounds of race.6 Yet they neither linked the two, nor framed self-​determination in terms of overcoming the race category. Even the 1965 International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), though its preamble recalled United Nations’ (UN) condemnation of ‘colonialism and all practices of segregation and discrimination associated therewith’,7 offered no reading of self-​determination as the undoing of the legal category of race. ICERD, besides, was not quite the product of decolonization; it originated in East-​West divisions and Middle East recriminations; North-​South divisions were factored into its text only at a late stage. By contrast, the Apartheid Convention dealt with ‘inhuman acts committed for the purpose of establishing and maintaining domination by one racial group of persons over any other racial group of persons and systematically oppressing them’; it declared apartheid itself a crime against humanity and dubbed resulting ‘inhumane acts’ as crimes violating the principles of international law. It offered, in other words, a reading of racial domination and oppression, not merely as discrete displays of racism, but as an organized form of governance. For this and other reasons, the battle against apartheid furnishes useful vantage points from which to gauge and assesses whatever footprints decolonization had left on post-​colonial international law. This chapter first looks at multiple projects that had placed race on the legislative and judicial agenda of the international community. It traces why some, but not others, culminated in the adoption of the Apartheid Convention (Section II). 5 Declaration on the Granting of Independence to Colonial Countries and Peoples, UNGA Res 1514 (XV) (14 December 1960); Declaration on Principles of International Law concerning Friendly Relations and Co-​operation among States in accordance with the Charter of the United Nations, UNGA Res 2625 (XXV) (24 October 1970). 6 International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171 arts 2, 4, 24, 26; Article 20 provided for the prohibition of ‘advocacy of  .  .  .  racial  .  .  .  hatred’ reaching the threshold of ‘incitement’. International Covenant on Economic, Social and Cultural Rights (16 December 1966) 993 UNTS 3 (entered into force 3 January 1976) arts 2, 13. 7 International Convention on the Elimination of All Forms of Racial Discrimination (adopted 21 December 1965, entered into force 4 January 1969) 660 UNTS 195; Article 15 did involve the Committee on Elimination of Racial Discrimination in petitions from territories governed by Resolution 1514.

218  Rotem Giladi It then considers the relationship between apartheid and decolonization—​and a common view according to which the anti-​apartheid cause, including with regard to banning racial discrimination, had served as a banner of decolonization (Section III). Section IV proposes that, in effect, apartheid came to be treated as an aberration—​rather than the extreme iteration—​of colonialism and notes some of the consequences of that framing: raising the apartheid banner did not serve well the cause of de-​racializing international law; and making apartheid the banner of the battle against (colonial) racism may not have been all propitious for the cause of the battle against apartheid itself. Section V considers the Convention’s acquis and effect. It suggests that the Apartheid Convention, in treating apartheid as an aberration, vindicated colonialism, and that criminalizing apartheid signified the end of a conversation on race in the era of decolonization more than its beginning. Section VI considers the fate of other anti-​racial causes, while Section VII raises the possibility that the Apartheid Convention in fact confirmed the continued relevance of race in international law. Finally, Section VIII offers a critical reading of the lasting footprints decolonization has left, in the matter of race, on the normative landscape of international law.

II.  The causes of race One insight about the effect of decolonization on the issue of race in international law is that that deracializing international law was not quite a linear progression of a single trajectory.8 It took place at multiple sites, and sprung out of several agenda. It was driven by different political forces headed in different, sometimes opposing, directions and acting on a variety of motives. And it was fraught with unintended consequences that produced surprising but important marks on the race category in international law. Neither was decolonization the only (or, for that matter, the first) launching pad for the legislative battle on race at the UN. The protagonists in the UN debate that followed India’s 1946 complaint against the Union of South Africa’s discriminatory treatment of persons of Indian origins at times framed their contentions in terms of racial discrimination.9 But this started (alongside the Union’s recalcitrance over South-​West Africa) as a single-​issue campaign that sought to put pressure on South Africa and carve a world role for India, rather than set or elaborate a general standard.10 This was true also in 1952, when India realized it could not demand 8 Giladi, ‘The Phoenix’ (n 2) 847–​48, 860, 874–​75. 9 Evoking ‘a striking resemblance to the Nazi principle and practice of race superiority and concentration of power in the superior race’: quoted in Lorna Lloyd, ‘ “A Family Quarrel”: The Development of the Dispute over Indians in South Africa’ (1991) 34 The Historical Journal 703, 722–​23 (hereafter Lloyd, ‘Family Quarrel’). 10 ibid.

Race, Decolonization, and Apartheid  219 equality for a small, somewhat newly disenfranchised Indian minority but remain silent on the systemic disenfranchisement of the majority in South Africa.11 That year saw, accordingly, the inclusion of ‘The question of race conflict in South Africa resulting from the policies of apartheid . . . ’ in the UN General Assembly (UNGA) agenda.12 And while the Union was repeatedly singled out in successive UNGA sessions,13 such debates saw no attempt to revise old or generate novel norms. Besides, a close reading suggests that India’s original grievance itself was couched in terms confirming that race was as relevant as ever: after commenting that under South African legislation, Jesus Christ would have been considered a prohibited immigrant, Vijaya Lakshmi Pandit—​India’s representative and Jawaharlal Nehru’s sister—​proceeded to say that ‘if the country belonged to anyone, it was the “barbaric indigenous population” ’ from which it was taken.14 Her own memoire notes how, in the midst of the ‘Asian victory’ celebrations, she approached Smuts on the Assembly floor—​as if to ask for the patriarch’s pardon and regain his goodwill.15 Race was largely still framing the debate even when its concrete manifestations came under challenge. Legislative efforts originated elsewhere. Jewish lawyers and organizations were contemplating international legislation on anti-​ Semitism already during the Holocaust.16 Such initiatives, seemingly, were lost in the plurality of post-​war legislative (and political) projects touching on Jewish questions. On Christmas Eve 1959, however, anti-​Jewish slogans were painted on a rededicated synagogue in Cologne; slogans and swastikas soon spread across West Germany, and in the next two weeks, more than 500 episodes were recorded in thirty-​four countries.17 The alarm caused by the ‘Swastika Epidemic’18 soon appeared on the UN agenda. 11 Rotem Giladi, ‘Negotiating Identity: Israel, Apartheid, and the United Nations, 1949–​1952’ (2017) 132 The English Historical Review 1440 (hereafter Giladi, ‘Negotiating Identity’). 12 Letter dated 12 September 1952 addressed to the Secretary-​General by the permanent representatives of Afghanistan, Burma, Egypt, India, Indonesia, Iraq, Iran, Lebanon, Pakistan, the Philippines, Saudi Arabia, Syria and Yemen (12 September 1952) UN Doc A/​2183. 13 ES Reddy, Apartheid, the United Nations and the International Community: A Collection of Speeches and Papers (Vikas 1986); Özdemir A Özgür, Apartheid: The United Nations & Peaceful Change in South Africa (Transnational Publ 1982). 14 Lorna Lloyd, ‘ “A Most Auspicious Beginning”: The 1946 United Nations General Assembly and the Question of the Treatment of Indians in South Africa’ (1990) 16 Review of International Studies 131, 141 (hereafter Lloyd, ‘Auspicious Beginning’). 15 Mark Mazower, No Enchanted Palace: The End of Empire and the Ideological Origins of the United Nations (Princeton University Press 2009) 179 (hereafter Mazower, No Enchanted Palace); Vijaya Lakshmi Pandit, The Scope of Happiness: A Personal Memoir (Weidenfels and Nicolson 1979) 211. 16 Mark Vishniak, An International Convention against Anti-​ Semitism (Research Institute of the Jewish Labor Committee 1946); Oscar I Janowsky and Melvin M Fagen, International Aspects of German Racial Policies (OUP 1937). 17 James Loeffler, How Zionism Became Racism:  International Law, Anti-​Semitism, and Jewish Lawyering at the United Nations, 1945–​1975 (hereafter Loeffler, Zionism) (unpublished manuscript; I thank James Loeffler for permission to quote this paper): ‘the total for 1960 rose to 2500 incidents in 41 countries’; Michael Brecher, The Foreign Policy System of Israel: Setting Images Process (OUP 1972) 237–​38,  550. 18 Nemiah Robinson, ‘The Swastica Epidemic’ (June 1960)  (World Jewish Congress Records, American Jewish Archives, C130/​18).

220  Rotem Giladi In early 1960, the UN’s Sub-​Commission on the Prevention of Discrimination and the Protection of Minorities condemned the incidents.19 Jewish non-​governmental organizations (NGOs) with UN consultative status were heavily involved. The question of ‘Manifestations of anti-​Semitism and other forms of racial prejudice and religious intolerance of a similar nature’ was discussed by the Commission on Human Rights, then the Assembly. NGOs were invited to submit materials. At the end of 1960, at the invitation of the UN Economic and Social Council (ECOSOC), the Assembly adopted a resolution on ‘Manifestations of Racial and National Hatred’.20 Notwithstanding early consensus in the sub-​Commission, Cold War issues touched the final text;21 and the Israeli–​Arab conflict now caused the deletion of any reference to anti-​Semitism; colonialism or apartheid were not mentioned. Soon after, early proposals on an international convention on racial discrimination foresaw a ‘far narrower scope’ for such an instrument than ICERD would eventually encompass.22 Although the deliberations at the Sub-​Commission occasionally referenced colonialism, its consensus first was a focus on ‘racial, national and religious hatred’—​that is, discrimination within states, not among nations.23 The issue was still largely conceived as addressing a European problem, to be discussed within the setting of a largely European international system. It was in 1962 at the UNGA Third Committee, during the consideration of such proposals, that a change of direction and emphasis was recorded. Although the path for drafting a declaration, then a convention, on racial discrimination by the Assembly was now largely determined, this came at a cost. Arab and Eastern bloc opposition bifurcated the cause through a distinction between ‘racial discrimination’ and ‘religious intolerance’.24 Of the two tracks, the former was to gain priority. So it did: in late 1963, the Assembly adopted a ‘Declaration on the Elimination of All Forms of Racial Discrimination’;25 two years later, the Assembly adopted ICERD.26 The Convention contained a brief condemnation of ‘segregation and apartheid’ and an undertaking ‘to prevent, prohibit and eradicate all practices of this nature in

19 UN Commission on Human Rights (UNCHR), ‘Report of the Twelfth Session of the Sub-​ Commission on Prevention of Discrimination and Protection of Minorities to the Commission on Human Rights’ (8 February 1960) UN Doc E/​CN.4/​800, paras 163–​94. 20 Manifestations of Racial and National Hatred, UNGA Res 1510 (XV) (12 December 1960). For background, Nātān Lerner, The U.N. Convention on the Elimination of all Forms of Racial Discrimination (Sijthoff & Noordhoff 1980) 1. 21 Lerner (n 20) 22 (early draft work by representatives of the US, USSR, UK, and Poland). 22 Egon Schwelb, ‘The International Convention on the Elimination of All Forms of Racial Discrimination’ (1966) 15 International and Comparative Law Quarterly 996, 998. 23 UN Commission on Human Rights (UNCHR), ‘Report of the Thirteenth Session of the Sub-​ Commission on Prevention of Discrimination and Protection of Minorities to the Commission on Human Rights’ (9 February 1961) UN Doc E/​CN.4/​815, para 176. 24 Schwelb (n 22) 998–​99. See UNGA Res 1780, 1781 (XVII) (7 December 1962); neither referenced colonialism. How to classify anti-​Semitism was debated, the crux being whether Judaism was a religion or Jews a race or a nation. 25 UNGA Res 1904 (XVIII) (20 November 1963). 26 UNGA Res 2106 (XX) (21 December 1965).

Race, Decolonization, and Apartheid  221 territories’ of state parties (art 3); but colonialism itself remained a minor concern, notwithstanding the marginalization of anti-​Semitism, which ICERD did not mention.27 The involvement of African and Asian countries in the legislative process was undoubtedly on the rise, and colonialism was deployed by the Soviet bloc as a rhetorical weapon against Western countries during the drafting process;28 yet, if ICERD attested to the persistence of a race problem, this was at best only marginally the problem of the racial structuring of authority in international relations. As marginal were the solutions it prescribed for that problem. ‘Religious intolerance’—​for some, the appropriate framework to deal with anti-​Semitism—​remains to this day the subject of UN declarations with no treaty emerging to combat it.

III.  The banner of apartheid One may consider, next, the relationship between apartheid and decolonization; specifically, the role of apartheid in UN legislative initiatives on race in the context of decolonization. Specific apartheid practices in the Union of South Africa, then ‘the policies of apartheid’ themselves, were debated at the UN at India’s initiative since 1946 and 1952, respectively.29 As decolonization came to occupy the agenda of the world organization, apartheid came to take centre stage in the battle to produce new norms on racial discrimination. ICERD, to the disappointment of its Jewish promoters, failed to include the draft article on anti-​Semitism;30 that ‘apartheid is the only form of racial discrimination to which a specific article is devoted in addition to mentioning it in the Preamble’ did not assuage their disaffection with the fruit of their labour.31 One dismissed the ‘not convincing explanation’ that, unlike Nazism or anti-​Semitism, ‘apartheid is today the only instance of racial discrimination as an official policy’; ‘what decided the final text’, he repeatedly observed, ‘were political considerations’.32 ‘In law,’ another commented, ‘Article 3 (on apartheid) hardly adds anything to either the general . . . or the more specific . . . provisions and prohibitions of the Convention.33 27 Owing to Arab opposition (‘could be interpreted as support’ for Israel) and Soviet sensitivity to criticism of treatment of its Jewry: Lerner (n 20) 73; R Cohen, ‘International Convention . . . ’ (10 January 1966)  (World Jewish Congress Records, American Jewish Archives, B91/​4) 5; I  thank Jim Loeffler for drawing my attention to this source. 28 Ofra Friesel, ‘Race Versus Religion in the Making of the International Convention Against Racial Discrimination, 1965’ (2014) 32 Law and History Review 351. 29 Text accompanying (n 9); Lloyd, ‘Family Quarrel’ (n 9); Lloyd, ‘Auspicious Beginning’ (n 14); Mazower, No Enchanted Palace (n 15). 30 Cohen (n 27). 31 Lerner (n 20) 11, 68 et seq. The preamble recorded alarm caused by ‘manifestations of racial discrimination still in evidence in some areas of the world and by governmental policies based on racial superiority or hatred, such as policies of apartheid, segregation or separation’; Article 3 reported: ‘States Parties particularly condemn racial segregation and apartheid and undertake to prevent, prohibit and eradicate all practices of this nature in territories under their jurisdiction’. 32 ibid, 22–​23, 42–​43,  72–​73. 33 Schwelb (n 22) 1021.

222  Rotem Giladi The decision not to reference any specific form of ‘ism’, after the article on apartheid was secured, was ‘led by the Afro-​Asians’.34 This was part of a trend. One World Jewish Congress officer lamented in early 1966 that ‘for a large number of Member States, particularly the African-​Asian states of the United Nations, [anti-​ Semitism] is of peripheral importance’. He also recorded that, ‘accelerated no doubt by the . . . admission of the newly independent African states, especially since 1960, there is a powerful tendency to narrow all references to racial discrimination down to color relations or, more specifically, apartheid’.35 Jewish advocacy was losing not only individual battles, but also the impetus and initiative.36 By contrast, during the 1960s apartheid in Southern (not merely South) Africa became a unifying force. As Saul Dubow notes: the iniquity of apartheid was one moral and political issue that countries, large and small, aligned and non-​aligned, could mostly agree on—​albeit not always from the purest of motives. Whereas pre-​war segregation was not so different from practices elsewhere in British colonial Africa and Asia, statutory racial discrimination was becoming indefensible in a world where decolonization and rights were gaining ground.37

In the years that followed the Sharpeville Massacre (21 March 1960), apartheid became a cause that Asian, African, Eastern Bloc and, increasingly, certain socialist Western European countries—​as well as some liberal and labour constituencies in the West—​could rally around.38 Unity could be forged by such events as Nelson Mandela’s ‘I Am Prepared to Die’ speech from the dock during the Rivonia trial (20 Aprril 1964),39 or fostered by the presence of ANC leadership in exile. Different factors combined to ensure the apartheid regime would largely enjoy Western political cover and economic advantages (especially by the United States (US) and the United Kingdom (UK)) well into the 1970s and 1980s.40 Yet these

34 Cohen (n 27) 6. 35 ‘M. Melamet to World Governing Council’ (11 January 1966) (World Jewish Congress Records, American Jewish Archives, B91/​4) 4. 36 These trends were exacerbated by Israel’s Cold War positioning, the Middle East conflict, and, soon, its estrangement from Africa and its relations with South Africa: Giladi, ‘Negotiating Identity’ (n 11). 37 Saul Dubow, Apartheid, 1948–​1994 (OUP 2014) 47. 38 Ryan M Irwin, Gordian Knot:  Apartheid and the Unmaking of the Liberal World Order (OUP 2012) 5 (‘lodestar’); Rob Skinner, The Foundations of Anti-​Apartheid:  Liberal Humanitarians and Transnational Activists in Britain and the United States, c.1919–​64 (Palgrave Macmillan 2010). 39 Dubow (n 37) 96–​97; Owen Collins (ed), Speeches that Changed the World (Westminster John Knox Press 1999) 404. 40 Dubow (n 37) 190 (‘Up until 1976, countries sympathetic to South Africa, the United States and Britain most notably, had been able to use diplomatic pressure in order to avert international diplomatic and economic sanctions. South Africa remained a loyal ally of the West and its firm anti-​communism received considerable international support, backed by conservative media commentary. But Western support of—​or association with—​South Africa was becoming more costly’).

Race, Decolonization, and Apartheid  223 very same factors—​including strategic and economic import and its portrayal as the last bastion of the white man in Africa and a bulwark against spreading communism—​often rendered South Africa’s apartheid such an effective symbol of racial discrimination, whether in domestic arenas, at the UN, or at the Peace Palace. To address race, the agents of decolonization treated apartheid as an essential representation of the racial underpinnings of colonialism in legislative, institutional,41 and judicial arenas. The Court was asked first to comment on the Union’s position in South West Africa,42 then rule on applications by Liberia and Ethiopia that alleged violations of the mandate instrument and the Covenant, including that The Union, by law and in practice, distinguishes as to race, color, national and tribal origin in establishing the rights and duties of the peoples of South West Africa. This official practice is referred to as apartheid.43

In general, and in particular with regard to banning racial discrimination, apartheid became a banner.

IV.  The aberration of apartheid Raising the banner of apartheid did not serve well the cause of de-​racializing international law. Whatever its effect on other causes espoused by various advocates of ICERD, or on ICERD’s own perception and reception, making apartheid the banner of the battle against (colonial) racism may not have been all propitious for the cause of the battle against apartheid itself. Following the crush of ANC domestic resistance in the 1960s, it hoped to receive material assistance from liberated African countries. While, after Bandung, the cause of the anti-​apartheid struggle offered to consolidate African nationalism domestically and cement its block politics,44 it also allowed newly independent states to offer the ANC no more than robust rhetoric denouncing the racism of the apartheid regime.45 African nationalism, at any rate, was often suspicious of both the ANC inclusive racial composition and its communist membership/​affiliations; it was more attuned to the ANC’s competitor, the Pan-​African Congress.46 Here, international organizations provided both podium and opportunity to talk against the evil of settler colonialism 41 For example, the UN Special Committee on apartheid, established by UNGA Res 1761 (6 November 1962); in 1971, the UN Centre Against Apartheid was established. 42 See Ingo Venzke, Chapter 10 this volume. 43 South West Africa Cases (Ethiopia v South Africa; Liberia v South Africa) (Application Instituting Proceedings) ICJ Pleadings vol I 4, 6. 44 Steven LB Jensen, The Making of International Human Rights: The 1960s Decolonization and the Reconstruction of Global Values (CUP 2016). 45 For background, Dubow (n 37) 132. 46 ibid 133.

224  Rotem Giladi and apartheid in lieu of furnishing those resisting these forms of oppression with the means to succeed. Another effect of making apartheid the banner of the struggle against racism (colonial or otherwise) may have been to deflect attention away from the structural racial underpinning of international law. In and outside the UN, treating apartheid as a banner implied that the struggle against apartheid would serve as a panacea. Rallying against the scandal of race in South Africa portrayed apartheid as an aberration, rather than what it really had been: among many other things,47 the entrenchment (and only later the reification) of segregation laws and practices that long preceded the 1948 electoral victory by the National Party. These were often rooted in British colonial policies and comparable to other colonial regimes in Africa and elsewhere.48 Enshrining the right to self-​determination signified that peoples, not races, were now the political unit of reference in international law without, however, considering (let alone undoing) the lingering products of the operation of old units of reference. This levelled the playing field, but on the formal level alone. Treating apartheid as an exception, rather than an extreme iteration of the (old) rule, likely made such outcomes even more resilient to reverse or reform. As an aberration, apartheid vindicated colonialism, or in the very least obviated the need to reflect on racialized structural formations of international law and obfuscated how these conditioned post-​colonial independence. At a time when decolonization politics inevitably emphasized ‘sovereign’ more than ‘racial’ equality as a new organizing principle of international relations, marking apartheid as an aberration pronounced that race had become irrelevant without, however, either reflecting on the need to undo its systemic relevance or in fact addressing the myriad ways in which race had underwritten legal norms and institutions, categories and distinctions, or the structures and decision-​making processes of international bodies. It was as if, in Grovogui’s words, ‘the only requirement for decolonisation is the elimination of the legal instruments that provided for direct foreign rule’.49 This left newly independent states to individually negotiate their entrance into the international community based on formations that placed them at a disadvantage50 or, collectively, through ‘looking back in anger’,51 make prospective law predestined to matter little in practice.52 47 I do not discount here the role of ideology or theology, economic, or other structural explanations of apartheid; the conclusion to Dubow provides a very useful survey. 48 Siba N’Zatioula Grovogui, Sovereigns, Quasi Sovereigns, and Africans: Race and Self-​Determination in International Law (University of Minnesota Press 1996) 160, observes: ‘That South Africa always looked outward to Australia, New Zealand, and the United States for ideas concerning apartness was confirmed during the court proceedings’ of the South West Africa case. 49 ibid 1. 50 Antony Anghie, Imperialism, Sovereignty and the Making of International Law (CUP 2007) 111; Matthew Craven, The Decolonization of International Law:  State Succession and the Law of Treaties (OUP 2007). 51 Jan Klabbers, International Law (CUP 2013) 83, attributing the phrase to Bruno Simma. 52 The controversial internationalization of armed conflict by national liberation movements in Article 1(4) of the 1977 Additional Protocol I comes to mind. While it did refer to ‘peoples . . . fighting

Race, Decolonization, and Apartheid  225

V.  Apartheid as scapegoat Apartheid ‘was a symbol, a lightning-​rod, even a scapegoat that took away the sins of the world’.53 In the historical framework of decolonization, this has taken place through treating apartheid as an outmoded exception, rather than an outlier of the rule. This reached its apex in 1973, when apartheid was made into a crime against humanity.54 Making apartheid a crime under international law confirmed that it was, in fact, but an aberration. This also confirmed, effectively if implicitly, that less sweeping or blatant forms of colonial rule drawing on similar racial ideologies or implementing similar racial policies were not. The Convention, in short, vindicated colonialism; criminalizing the aberration offered to wash away the sins of colonialism. This point was not lost on Hercules Booysen, a Professor in the Department of Constitutional and International Law at Pretoria’s University of South Africa, in a journal article he published upon the Convention’s entry into force. Other than considering the Convention a Soviet plot that ‘runs counter to the basic principles of the Charter of the United Nations’, he also dubbed it ‘a masterpiece of hypocrisy’.55 This targeted the record of the Convention’s supporters as well as the fact that South Africa was being singled out among the Convention’s opponents. If the crime comprised of ‘[a]‌ny measures . . . designed to divide the population along racial lines by the creation of separate reserves’, as Article 2(d) provided, that must surely mean that ‘America, Canada and perhaps even Australia are also committing the “crime of apartheid” as a result of the existence of Indian and other reserves in these countries’.56 Booysen warned: ‘It is not only South Africa which has been branded as a criminal in this convention, but other western states as well.’57

against colonial domination and alien occupation . . . in the exercise of their right of self-​determination’, subsequent interpretation and understanding placed emphasis on peoples fighting ‘against racist régimes’. This has rendered the provision not only uninvoked since 1977 but, rather, uninvokable: Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I) (adopted 8 June 1977, entered into force 7 December 1978) 1125 UNTS 3. 53 Dubow (n 37) 277–​78, referencing ‘an image borrowed from a poem by van Wyk Louw [by] veteran Afrikaans journalist Piet Cillié’. See JV Crewe and NP van Wyk Louw, ‘Two Poems by N. P. van Wyk Louw’ (1970) 35 Theoria: A Journal of Social and Political Theory 59. 54 Preceded by GA Res 2202 (XXI) (16 December 1966), and Convention on the Non-​Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity (adopted 26 November 1968, entered into force 11 November 1970) 754 UNTS 73, art 1. See Ronald C Slye, ‘Apartheid as a Crime against Humanity: A Submission to the South African Truth and Reconciliation Commission’ (1999) 20 Michigan Journal of International Law 267. 55 H Booysen, ‘Convention on the Crime of Apartheid’ (1976) 2 South African Yearbook of International Law 56 (Convention brought about by states ‘either dominated by or are under the influence of the USSR’). The draft was sponsored by Guinea and the USSR: Guinea and USSR, ‘Draft Convention on the Suppression and Punishment of the Crime of Apartheid’ (28 October 1971) UN Doc A/​C.3/​L.1871. 56 Booysen (n 55) 61. 57 ibid 95.

226  Rotem Giladi While slightly more than half of UN members are today parties to the Apartheid Convention, membership extends to none of the former colonial powers. Of the P5, only Russia and China have ratified or acceded it.58 If the expressive value of the Apartheid Convention should therefore be called into question, so can its practical utility. First, marking apartheid as an aberration and focusing on its racial underpinning in fact facilitated the construction of apartheid in narrow terms. Thus, in 1971, when the ICJ was given finally a chance to extricate itself from the ‘disaster of 1966’ (by the Security Council, not the Assembly), it announced in the South-​West Africa Advisory Opinion that To establish . . . 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 human rights is a flagrant violation of the purposes and principles of the Charter.59

This left unaffected ‘distinctions, exclusions, restrictions and limitations’ not ‘exclusively based on grounds of race’, whether or not they amounted to a denial of fundamental human rights. While apartheid may have been the conduit for denouncing colonialism at large, singling it out affected precisely the opposite outcomes. Second, no single person has ever been charged, let alone convicted, for committing the crime of apartheid.60 Ambiguity was built into the Convention’s definitions and scope of application; on the one hand, apartheid was portrayed as bounded by a historical specificity of country-​specific practices and policies; on the other it was, simultaneously, phrased as universal, and universally applicable. This, undoubtedly, had contributed to the Convention’s limited utility. It is instructive, however, that the Convention’s uselessness was revealed most poignantly precisely at the moment the apartheid regime in South Africa came to its end. The delicate balances represented by the Truth and Reconciliation Commission of South Africa (TRC) precluded resorting to the criminal justice model on which the Convention was predicated.61 The TRC affirmed in an annex to its report that ‘its judgement that apartheid, as a system of enforced racial discrimination and separation, was a crime against humanity’; it also noted that ‘the recognition of apartheid as a crime against humanity remains a fundamental starting point for reconciliation 58 Multilateral treaties deposited with the Secretary-​ General, accessed 12 September  2016. 59 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 4 [131] (emphasis added). 60 Carola Lingaas, ‘The Crime Against Humanity of Apartheid in a Post-​Apartheid World’ (2015) 3 Oslo Law Review 86. 61 The TRC did discuss crimes against humanity both with regard to ‘apartheid as a system’ and to ‘specific acts’: Truth and Reconciliation Commission of South Africa (TRC), ‘Report’ (2008), vol 1, ch 4 and vol 5, para 101.

Race, Decolonization, and Apartheid  227 in South Africa’.62 But the report itself considered that the ‘vexed issue of apartheid as a crime against humanity impinges perhaps more directly on moral than on legal culpability’.63 The TRC also took care to distance itself from the operational implications of such conceptualization: ‘sharing of the international community’s basic moral and legal position on apartheid should not be understood as a call for international criminal prosecution of those who formulated and implemented apartheid policies. Indeed, such a course would militate against the very principles on which this Commission was established.’64 The minority position submitted by Commissioner Malan was more explicit in casting doubt ‘whether an investigation of apartheid under international law would have any present or future legal or political value’.65 This, apparently, is the reason why South Africa, the template and impetus for the treaty definition of apartheid (as a particular yardstick demonstrating the universality of the norm66) has, to date, neither signed or ratified the Apartheid Convention.67 The Apartheid Convention signified more the end of a conversation on race in the era of decolonization than its beginning. To the best of my knowledge, no legal or diplomatic history of the Apartheid Convention has ever been written.68 Rather than panacea, apartheid proved a dead end. It remains a largely a forgotten and quite understudied instrument by lawyers, diplomatic historians, or historians of apartheid.69 What little familiarity it commands owes much to its inclusion in the Rome Statute of the International Criminal Court.70 The international criminal law literature following that inclusion tends, nonetheless, to treat the crime of apartheid briefly and focus, naturally, more on technical aspects of the criminality of apartheid, rather than what it signifies for the role of race in international law. 62 ibid vol 1, ch 4, Appendix: ‘Apartheid as a Crime against Humanity’. 63 ibid vol 1, ch 5, para 103 (adding: ‘A simple focus on the criminal culpability of isolated individuals responsible for apartheid can ignore the broader responsibilities presently under discussion. It is not enough merely to identify a few high-​profile ‘criminals’ as those responsible for the atrocities of the past—​and thus give insufficient attention to a deeper analysis of the underlying nature, cause and extent of apartheid’). 64 ibid vol 5, para 64. Malan’s submission revealed the discord on this question within the Commission. 65 ibid vol 1, ch 4, Appendix: ‘Apartheid as a Crime against Humanity’. 66 Apartheid Convention (n 4) art 2 (‘similar policies and practices of racial segregation and discrimination as practised in southern Africa’). 67 John Reynolds, ‘Third World Approaches to International Law and the Ghosts of Apartheid’ in David Keane and Yvonne McDermott (eds), The Challenge of Human Rights (Edward Elgar Publishing 2012) 210. South Africa did ratify the Rome Statute on 27 November 2000. 68 For example, only cursory mentions of apartheid in the otherwise thorough Paul Gordon Lauren, Power and Prejudice: The Politics and Diplomacy of Racial Discrimination (Westview Press 1988) 228; 69 Reynolds (n 67) 209 (‘a largely forgotten and neglected concept in international law’); Lingaas (n 60) 87 (‘legal scholarship has largely turned a blind eye onto this crime’); John Dugard and John Reynolds, ‘Apartheid, International Law, and the Occupied Palestinian Territory’ (2013) 24 European Journal of International Law 867 (the concept of apartheid ‘never given enormous attention by international lawyers’). 70 Rome Statute of the International Criminal Court (adopted 17 July 1998, entered into force 1 July 2002) 2187 UNTS 90, art 7(1)(j).

228  Rotem Giladi Scholars of international criminal law debate the customary status of the crime, whether it survived the transition to democracy in South Africa, or try to use it to denounce contemporary policies in other parts of the globe.71 Yet, such debates obfuscate the effects of criminalization of apartheid: it posits apartheid as a scandal, dramatizes a spectacle of its denunciation, generates reforms—​which all, in the end, serve to regularize, entrench, even legitimize the system that produced the scandal in the first place.72

VI.  Law of unintended consequences There were other unintended consequences of engaging with the race category. The anti-​Semitism initiative of Jewish NGOs at the UN had led to codification of general non-​discrimination norms; but the contingencies of the Cold War, the Middle-​East conflict, and the sea change in the composition of the international community all combined to divert and pervert such agenda items. This begun, in the course of negotiations of the ICERD draft, as a device for the Union of Soviet Socialist Republics (USSR) to mute criticism of Soviet treatment of Jews behind the Iron Curtain: the Soviet Union introduced a sub-​amendment to the United States–​Brazilian amendment declaring that ‘States Parties condemn anti-​Semitism, Zionism, Nazism, neo-​Nazism and other forms of the policy and ideology of colonialism’. The Soviet delegate declared that Zionism was as ‘dangerous’ a form of racial discrimination as Nazism, fascism and anti-​Semitism’.73

In 1975, two years after the adoption of the Apartheid Convention, that device would devolve into a condemnation of Zionism—​the political movement of Jewish nationalism, and Israel’s foundational ideology—​as ‘a form of racism’.74 That Assembly Resolution was titled ‘Elimination of all Forms of Racial Discrimination’. One paragraph recalled a 1973 resolution where the Assembly ‘condemned, inter alia, the unholy alliance between South African racism and Zionism’.75 It also recited an Organization of African Unity (OAU) resolution noting the ‘common imperialist origin’ and ‘racist structure’ of apartheid and Zionism. My first political 71 For example, Lingaas (n 60); Reynolds (n 67); Dugard and Reynolds (n 69). 72 I owe a debt here to Nicholas B Dirks, The Scandal of Empire: India and the Creation of Imperial Britain (Belknap 2006). 73 Cohen (n 27)  5; Ofra Friesel, ‘Equating Zionism with Racism:  The 1965 Precedent’ (2013) 97 American Jewish History 283. 74 UNGA Res 3379 (XXX) (10 November 1975). 75 UNGA Res 3151 (XXVIII) (14 December 1973). On Israel’s relations with South Africa, see Sasha Polakow-​Suransky, The Unspoken Alliance:  Israel’s Secret Relationship with Apartheid South Africa (Vintage Books 2010).

Race, Decolonization, and Apartheid  229 engagement consisted of being dragged by my mother, not a model of political activism, to a protest rally denouncing the UN. At seven, I could not know that the 1975 Resolution, ‘revoked’ by the Assembly in 1991,76 had its roots in the 1960 Jewish UN initiative against anti-​Semitism. Another fallout of the same process concerned agents. A month after ICERD was adopted, the USSR representative to the 18th Session of the Sub-​Commission on Prevention of Discrimination and Protection of Minorities decried NGOs with UN consultative status—​some routinely critical of the Soviet Union for how its treated its Jews—​as unrepresentative, and tools of Western states in the Cold War.77 Driven by the USSR and the Arab bloc, such charges had seen the presence and influence of consultative-​status Jewish advocacy at UN severely diminished.78

VII.  Apartheid and genocide The appendix to the TRC report dealing with apartheid as a crime against humanity recorded the ‘almost total unanimity within the international community that apartheid as a form of systematic racial discrimination constituted a crime against humanity’. At the same time, it took care to dispel the ‘confusion in public debates in South Africa’ and ‘state that a finding of a crime against humanity does not necessarily or automatically involve a finding of genocide’,79 implying that the ‘intent to destroy, in whole or in part, an ethnic or racial group’ in Article 1 of the Genocide Convention80 was lacking. This draws into attention a curious choice made by the drafters of the Apartheid Convention. In rough terms, they elected to follow the overall structure and the general technique of the 1948 Genocide Convention, rather than developing a criminal law model out of the terms and forms of racial discrimination elaborated by ICERD or developing a unique framework for elaborating the criminality of apartheid and putting it into operation. The reasons for following a familiar structural criminal law template, or signifying the intellectual and moral proximity of genocide and apartheid, appear obvious. The rivalry of the 1960s between the different causes of combating racial discrimination—​specifically, anti-​Semitism and apartheid—​may well also explain this choice. Still, with this choice the drafters, inadvertently and indirectly, lent some authority to the proposition that race was still a relevant category.

76 UNGA Res 46/​86 (16 December 1991). 77 M. Melamet to World Governing Council (n 35) 281. 78 Loeffler, Zionism (n 17). 79 TRC (n 61) vol 1, ch 4, Appendix. 80 Convention on the Prevention and Punishment of the Crime of Genocide (adopted 9 December 1948, entered into force 12 January 1951) 78 UNTS 277.

230  Rotem Giladi The Genocide Convention gave effect to Raphael Lemkin’s project to extend the protection of international law not to individuals as such, but rather to the separate existence and identity of the group81—​including the racial group.82 At a time when the protection of minority rights became almost entirely discredited,83 and the rights of the individual were coming into vogue, this swansong of the interwar minority system stamped the most extreme abuses of racial (and other) groups with criminality. For Lemkin, whatever made the group worthy of protection, it was the group that had merited such protection. And the group was, among other criteria, racially defined. US Judge Joseph Proskauer, President of the American Jewish Committee and one of the promoters of the Universal Declaration, wrote in March 1944 that the idea of minority rights was an ‘exaggeration of the race concept’.84 So was, then, the crime of genocide. The Genocide Convention, perhaps paradoxically, reasserted the relevance of race. Did the Apartheid Convention, other than by following the Genocide Convention’s design, unwittingly confirm the continued relevance of the race category? To some extent, the answer seems positive. Criminalizing ‘policies and practices of racial segregation and discrimination’ perhaps entails the rejection of the analytical relevance of race. And yet defining apartheid as comprising of ‘inhuman acts committed for the purpose of establishing and maintaining domination by one racial group of persons over any other racial group of persons and systematically oppressing them’ and requiring that such acts be directed against ‘member or members of a racial group or groups’ does require decision makers to subscribe, in order to impose liability, to the value system of perpetrators of apartheid by assuming it has objective meaning that the decision maker can share, if only in order to denounce it. That, perhaps, is another reason why the TRC confirmed the criminality of apartheid, but refused to engage it.85

81 His 1933 proposal were directed at ‘attacks carried out against an individual as a member of collectivity’:  Raphael Lemkin, ‘Acts Constituting a General (Transnational) Danger Considered as Offences Against the Law of Nations’ (Additional explications to the Special Report presented to the 5th Conference for the Unification of Penal Law in Madrid (14–​20 October 1933), Jim Fusell tr, first published 1933)  accessed 16 August 2018. See also Mira L Siegelberg, ‘Unofficial Men, Efficient Civil Servants: Raphael Lemkin in the History of International Law’ (2013) 15 Journal of Genocide Research 297, 309; Anthony D Moses, ‘Raphael Lemkin, Culture, and the Concept of Genocide’ in Donald Bloxham and Anthony D Moses (eds), The Oxford Handbook of Genocide Studies (OUP 2010) 23–​24. 82 Raphael Lemkin, Axis Rule in Occupied Europe:  Laws of Occupation Analysis of Government Proposals for Redress (Carnegie Endowment for International Peace 1944); Raphael Lemkin, ‘Genocide as a Crime under International Law’ (1947) 41 American Journal of International Law 145. 83 Mark Mazower, ‘The Strange Triumph of Human Rights, 1933–​1950’ (1999) 47 The Historical Journal 379, 387. 84 Quoted in James Loeffler, ‘The Particularist Pursuit of American Universalism:  The American Jewish Committee’s 1944 ‘Declaration on Human Rights’’ (2015) 50 Journal of Contemporary History 274, 281. 85 See Section V.

Race, Decolonization, and Apartheid  231

VIII.  In the aftermath of battle Are these episodes representative? They may be, but if so, they are admittedly too few. Yet, they are certainly instructive. They suggest that race had been, whatever its rhetorical deployment in the battle for international law waged in the decolonization era, neither a strategic goal nor a major battlefield. They demonstrate how, notwithstanding early opportunities for coalitions, contingencies made the cause of decolonization—​increasingly considering apartheid the embodiment of colonial racism—​eventually come to compete with, divert, obstruct, or supplant other causes in the battle to overcome the race category in international law. These episodes also highlight the costs and unintended consequences of making apartheid a banner in the battle for international law. One involved portraying apartheid as an aberration; this, while seeking to denounce colonialism, in effect validated it and its lasting consequences. The more strenuously one decried apartheid, the more were the sins of colonialism washed away. Another was the paradox, in transitioning South Africa, of the crime of apartheid: while validating the work of the TRC, at the same time that crime threatened to undermine its very foundations. When it came to race, decolonization has left lasting footprints on the normative landscape of international law. Only some of these were mentioned here. Still, these footprints are sketchy, disjointed, borrowed, or sporadic, and often the product of accident and convenience, not design. They do not address racialized structuring of international authority, but rather concern national governance and treatment. And these footprints tend to obfuscate rather than reveal: they cover the imprints of older and other causes of combatting racism; they mark the cause of formal sovereign equality, but conceal how it abandoned substantive racial equality; and they draw attention away from the myriad ways in which race remains imprinted in the genetic material of many international norms and institutions, obscuring the lingering consequences of an explicitly racialized international law predating decolonization but, alas, not quite de-​racialized by it.

10

The International Court of Justice During the Battle for International Law (1955–​1975) Colonial Imprints and Possibilities for Change Ingo Venzke*

I. Introduction When newly independent states challenged the international legal order in whose formation they had no voice, especially from the 1950s onward, they turned to international law’s key concepts, to more specific legal obligations, and to some of its established institutions. Given that great powers benefited from international law and international institutions that had taken shape under their influence, those powers were sure to oppose nearly all changes that independent states sought to introduce. The result was a veritable battle for international law with many well-​ known standoffs and sites of engagement.1 This chapter explores the role of the International Court of Justice (ICJ)—​the United Nations’ (UN) ‘principal judicial organ’2—​during this battle for international law, roughly between the years of 1955–​1975. It examines the sceptical attitudes that prevailed with regard to the ICJ among newly independent states and how predominantly they saw the ICJ as an institution that reinforces international law’s colonial imprints. The ICJ seemed to stand in the way of rectifying past wrongs (Section II). There was still a moment of hope that the ICJ could be useful in combatting one of the most troubling remnants of colonialism: the apartheid regime in South Africa and in the mandate territory of South West Africa.3 The chapter explores the * I am indebted to Jochen von Bernstorff and Philipp Dann for their comments, to Wiebe Hommes and Marta Lozano Sanchez for their research assistance, and to Katherine Skinner for her assistance in finalizing the text. 1 See the Introduction to this volume. 2 UN Charter art 92; ICJ Statute art 1. 3 On the context of the Mandate system see Antony Anghie, Imperialism, Sovereignty and the Making of International Law (CUP 2007) 147–​60; Ralph Wilde, International Territorial Administration: How Trusteeship and the Civilizing Mission Never Went Away (OUP 2008) 306–​45; Nele Matz-​Lück, ‘Civilization and the Mandate System Under the League of Nations as Origin of Trusteeship’ (2005) 9 Max Planck Yearbook of United Nations Law 47. Ingo Venzke, The International Court of Justice During the Battle for International Law (1955–1975) In: The Battle for International Law: South-North Perspectives on the Decolonization Era. Edited by: Jochen von Bernstorff and Philipp Dann, Oxford University Press (2019). © The Several Contributors. DOI: 10.1093/oso/9780198849636.003.0011

236  Ingo Venzke ICJ’s momentous decisions in the South West Africa Cases because they centred on two focal points for demands of non-​white liberation: apartheid and the mandate system.4 What is more, for the ICJ, the decisions in the South West Africa Cases proved to be the single most important moments during the battle for international law, even during its entire history.5 Famously, in 1962 the ICJ affirmed its jurisdiction by a narrow majority. But whatever hope remained that the ICJ would assist in the struggle against remnants of colonialism, it was dashed in 1966, when the ICJ unexpectedly rejected the applicants’ standing by the tie-​breaking vote of its President.6 The South West Africa Cases are the ICJ’s captivating highpoint during the battle for international law. After its 1966 Judgment, the ICJ was largely side-​ lined as a discredited actor on this terrain of struggle (Section III.). According to newly independent states, the ICJ had to change. Even before South West Africa, the composition of the ICJ’s bench had come into view. But the dynamics of the debates changed with the 1966 Judgment. Through archival material, this chapter draws particular attention to the effects of that decision in the judicial elections. While Judge Badawi from Egypt was the only member at the ICJ from the African continent prior to 1964, four African judges were on the bench in 1970. And within three years from the 1966 Judgment, only two of the judges who were then in the controversial majority were still on the bench (Section IV.). The chapter then argues that changes in the ICJ’s composition made a positive difference in later practice, especially in the 1971 Namibia Advisory Opinion. The game seems to have been worth the candle. But the ICJ continued to show considerable ambivalence between either entrenching colonial imprints in the international legal order or working towards international law’s progressive change (Section V.). This account of the battle for international law—​of the ICJ’s role, the composition of its bench, and its practice—​serves as a vivid reminder of how legal and institutional developments are the product of a veritable struggle, and not the simple expression of a timeless, unsituated rationality. Such a production of international law and its institutions may pass as one of the few constants across history. It calls out from the 1966 Judgment in South West Africa, just as well as from the most recent 2016 Judgment in Nuclear Arms Race (Marshall Islands) (Section VI.).

4 On the importance of the anti-​apartheid struggle for newly independent and non-​aligned states and other political actors, 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, 620–​21. 5 See Waldemar Nielsen, African Battleline: American policy choices in southern Africa (Harper & Row 1965) 110, quoted in Anthony A D’Amato, ‘Legal and Political Strategies of the South West Africa Litigation’ (1967) IV Law in Transition Quarterly 8, 8 (noting that ‘[t]‌he South West Africa Case may be, as some have said, the Achilles’ heel of apartheid. It could also be the Achilles’ heel of the International Court, of the United Nations’). 6 South West Africa Cases (Ethiopia v South Africa; Liberia v South Africa) (Second Phase, Judgment) [1966] ICJ Rep 6 (hereafter South West Africa Cases (Second Phase, Judgment)).

The ICJ: Colonial Imprints, Possible Change  237

II.  Colonial imprints and prospects for change Many voices from newly independent and non-​aligned states held that the ICJ above all gave effect to the colonial imprints that continued to mark international law.7 From their perspective, the ICJ entrenches an international legal order that was, both in its core concepts and in its concrete manifestations, shaped during the times of great power domination. Specifically, the ICJ was seen to enforce unequal treaties and to prevent newly independent states from rectifying what they believed to be historic wrongs. A series of cases in the ICJ’s early years seemed to support such a view. For example, when France brought proceedings against Egypt in 1949 after the Egyptian government had placed approximately forty French nationals in camps and sequestered their property during the Arab–​Israeli War, France did so on the basis of a convention signed in Montreux in 1937 while Egypt was still a British protectorate.8 In principle, the 1937 convention ended the special protection of foreigners through consular and mixed courts, but only after a transitional period of twelve years that was possibly subject to extension.9 Egypt withdrew the challenged measures shortly after France brought the proceedings, and after it was defeated in the war with Israel. Even if the case was thus swiftly removed from the ICJ’s docket, it presented the ICJ as enforcing great power privileges of the past. Other early cases were read in a similar fashion. The United Kingdom (UK) instituted proceedings against Iran in response to the nationalization of the Anglo–​Persian Oil Company (now British Petroleum, BP).10 Although the ICJ ultimately declined jurisdiction, it first issued provisional measures that would have undone the effects of nationalization.11 In yet another case, Portugal brought proceedings against India to claim the right of passage of its aircraft over Indian territory to reach Portuguese territories within India and on the 7 Sure enough, other views existed. There was also hope, if not too simple expectation, that the Court would work to support weaker states; see Bhupinder S Chimni, ‘International Law Scholarship in Post-​Colonial India: Coping with Dualism’ (2010) 23 Leiden Journal of International Law 23, 36–​37. On the European imprint on the structures of international law, see Upendra Baxi, ‘Some Remarks on Eurocentrism and the Law of Nations’ in Ram P Anand (ed), Asian States and the Development of Universal International Law (Vikas Publications 1972) 3. 8 Protection of French Nationals and Protected Persons in Egypt (France v Egypt) (Institution of Proceedings) [1949] ICJ Pleadings 8.  Convention Regarding the Abolition of the Capitulations in Egypt, which had been signed in Montreux in 1937. 9 It also contained a compromissory clause that provided the Permanent Court of International Justice with jurisdiction Article 13, Convention Regarding the Abolition of the Capitulations in Egypt 1937. According to Article 37 ICJ Statute, references to the PCIJ in compromissory clauses vest the ICJ with jurisdiction. 10 Anglo-​Iranian Oil Co (United Kingdom v Iran) (Application Instituting Proceedings) [1951] ICJ Pleadings 8. 11 Anglo-​Iranian Oil Co (Iran v United Kingdom) (Preliminary Measures, Order) [1952] ICJ Rep 81 (hereafter Anglo-​Iranian Oil Co (Preliminary Measures, Order)); Anglo-​Iranian Oil Co (Preliminary Objection, Judgment) [1952] ICJ Rep 93.

238  Ingo Venzke Indian coast. Portugal relied on a series of historical treaties, starting with a 1779 treaty that it had concluded with the sovereign of Punem.12 Even if a narrow majority actually denied any Indian wrongdoing, the ICJ in principle affirmed Portugal’s rights.13 Ram Prakash Anand summarized the broader sentiment that this set of early cases evoked among many governments of newly independent states: All these so-​called legal rights had been created and forced upon these states in a former age—​the age of colonialism and imperialism—​under such conditions of lawlessness, aggression, and plunder of their territories . . . that these countries could hardly be expected to honour them so far as lay in their power, and they came to be recognized merely on the basis of the superior power of the European countries. As the International Court is only expected to enforce these legal rights, the ‘new’ countries refuse to go before the Court.14

Looking back at the first decades of the ICJ, Georges Abi-​Saab observes the dissatisfaction of the new states with large parts of classical international law which legitimized their subjugation and reflected the outlook and interests of the limited community from which it ensued and of which they did not partake except as objects of appropriation. Whence their refusal to submit to a procedure of settlement of disputes that is congenitally constrained to the strict application of precisely the contested law until its rules were updated and developed with their participation to make them more universal in their approach and in the values and interests they are called upon to further and protect.15 The ICJ was bound to be conservative and bound to preserve the law that newly independent states wished to change.16 According to Mohammed Bedjaoui, ‘[e]‌ven when a weak country would naturally seek the protection of the law, it avoids submitting its case to the Court for fear of having to submit to the application of

12 Right of Passage over Indian Territory (Portugal v India) (Application Instituting Proceedings) [1955/​I] ICJ Pleadings. Also see Jan HW Verzijl, International Law in Historical Perspective (Sijthoff 1973) 370. 13 Right of Passage over Indian Territory (Portugal v India) (Preliminary Objections, Judgment) [1967] ICJ Rep 125; Right of Passage over Indian Territory (Portugal v India) (Merits) [1960] ICJ Rep 6. Also see Georges Abi-​Saab, ‘The Newly Independent States and the Rules of International Law: An Outline’ (1962) 8 Howard Law Journal 111 (hereafter Abi-​Saab, ‘Newly Independent States’) (noting newly independent states’ resistance to accepting the territorial burdens from the colonial era). 14 Ram P Anand, International Courts and Contemporary Conflicts (Asia Publication House 1974) 320. 15 Georges Abi-​Saab, ‘The International Court as a World Court’ in Alan V Lowe and Malgosia Fitzmaurice (eds), Fifty Years of the International Court of Justice: Essays in Honour of Sir Robert Jennings (CUP 1996) 5 (hereafter Abi-​Saab, ‘World Court’); also see Abi-​Saab, ‘Newly Independent States’ (n 13). 16 Also see JJG Syatauw, Some Newly Established Asian States and the Development of International Law (Springer Netherlands 1961) 221, critiquing that newly independent states are treated like a child who, ‘finally grown up . . . should behave. The child may want to do so, but will not necessarily wish to accept all rules of conduct set by the once-​stronger adult’. Quoted in Anand (n 14) 320.

The ICJ: Colonial Imprints, Possible Change  239 customary norms which operate to its disadvantage and in the establishment of which it played no part’.17 The rights of French citizens, of British companies, and of Portuguese aircraft all stemmed from treaties of bygone times. It could not be expected that the judicial process would introduce change in this regard. Using Iceland as an example, Anand argued that political, diplomatic channels were needed to push for change. When Iceland wished to change the extent of its fishing zones it could only have lost in proceedings before the ICJ. The ICJ would have rejected the straight baselines from which Iceland wanted to count the twelve miles of exclusive fisheries jurisdiction. Iceland therefore reached a compromise according to which Great Britain tolerated the Icelandic practice and Iceland, on its part, initially allowed British vessels to enter its newly defined fishing zones.18 Anand points out that such a dynamic development of international law would have been stifled had Iceland accepted Great Britain’s offer to adjudicate the matter.19 When compared to the process of negotiation, third-​world international lawyers saw even greater possibilities for change—​ less cumbersome and more certain—​in plenary bodies such as the UN General Assembly (UNGA) where they held a growing majority.20 Resolutions of international organizations should be the modern sources of a progressive international law.21 Resolutions should free international law from its colonial imprints, not difficult treaty negotiations nor conservative adjudication. But the path via resolutions had its own limits, especially when it came to their enforcement. In particular, a growing pile of condemning UNGA Resolutions could not irritate South Africa in its blatantly racist apartheid policies.22 Security Council action was held back by the United States (US) and the UK, who each

17 Anand (n 14) 102. It does not readily follow from this sentiment that newly independent states were less willing to submit to the jurisdiction of the court when compared to other states; see Ibrahim FI Shihata, ‘The Attitude of New States Toward the International Court of Justice’ (1965) 19 International Organization 203. 18 Anand (n 14) 321–​22. 19 This is precisely what happened in 1972, see Fisheries Jurisdiction (United Kingdom of Great Britain and Northern Ireland v Iceland) (Merits) [1974] ICJ Rep 3. Anand further notes that pushing for change in international law may well start with a violation, which can then lead to a new compromise. Anand (n 14) 324. 20 Anand (n 14) 330; Mohammed Bedjaoui, Towards a New International Economic Order (Holmes Meier 1979) 142. 21 Bedjaoui (n 20)  138–​40; Bin Cheng, ‘United Nations Resolutions on Outer Space:  “Instant” International Customary Law?’ 1965 The Indian Journal of International Law 23, 23; Taslim O Elias, ‘Modern Sources of International Law’ in Wolfgang Friedmann, Louis Henkin and Oliver Lissitzyn (eds), Transnational Law in a Changing Society: Essays in Honor of Philip C. Jessup (Columbia University Press 1972) 51. 22 On the importance of these resolutions all the same see Richard A Falk, ‘On the Quasi-​Legislative Competence of the General Assembly’ (1966) 60 American Journal of International Law 782, 790. The Security Council only placed apartheid politics on its agenda in 1960 after the so-​called Sharpeville massacre, when police forces shot sixty-​nine unarmed demonstrators—​men, women, and children—​ and wounded about 200 more.

240  Ingo Venzke catered to their strong business interest in South Africa.23 According to Ernest Gross, former US representative at the UN and then lead agent for Ethiopia and Liberia in South West Africa: ‘If any realistic prospect had existed that members of the United Nations would repress, rather than merely condemn, South Africa’s violations of its clear and present duties under the Mandate, the hazards, burdens and, above all, the time involved in litigation would have been avoided.’24

Acting through the UNGA, newly independent and non-​aligned states thus asked the Committee on South West Africa (which became Namibia) to explore the possibilities of instituting proceedings against South Africa.25 In May 1960 the Liberian Ambassador—​in consultation with other African States—​also requested an opinion on the matter from Ernest Gross. Gross’s suggestions were promptly discussed at the Second Conference of Independent African States held in Addis Ababa in June.26 Ethiopia and Liberia instituted proceedings in the same year.27 While South Africa had so far shrugged off even sharp criticism of its apartheid regime, it showed genuine apprehension in view of the judicial proceedings.28

III.  ‘The disaster of 1966’ A.  South Africa’s mandate and the struggle against apartheid The former German colony of South West Africa was a mandate territory within the system of the League of Nations. In the words of Article 22 of the Covenant, the territory was ‘inhabited by peoples not yet able to stand by themselves under the strenuous conditions of the modern world’. For those peoples ‘there should be applied the principle that the well-​being and development of such peoples form a sacred trust of civilisation’.29 The Council of the League of Nations put South Africa

23 Ernest A Gross, ‘The South West Africa Case: What Happened?’ (1966) 45 Foreign Affairs 36, 41–​42; Irwin (n 4) 624. On the US American and British business interests in South Africa also see Department of State, ‘National Policy Paper—​South Africa, Part One’ (National Archive, S/​P Files: Lot 72 D). 24 Gross (n 23) 41. 25 See in further detail Edward McWhinney, The World Court and the Contemporary International Law-​Making Process (Sijthoff Noordhoff 1979) 93 (hereafter McWhinney, World Court); D’Amato (n 5) 16–​17. 26 It had to be Ethiopia and Liberia because they were already members of the League of Nations and thus deemed in the best legal position to challenge South Africa it the performance of duties that continued to stem from the League’s mandate system. 27 D’Amato (n 5) 17; Gross (n 23) 40. 28 For a discussion of the assessments of a binding judgment from the perspective of South African politics, see Irwin (n 4) 621. 29 Covenant of the League of Nations (1919) art 22.

The ICJ: Colonial Imprints, Possible Change  241 in charge as the mandate power.30 After the Second World War, South West Africa was the only territory for which no formal transition could be arranged so as to place the mandate within the framework of the UN Trusteeship Council. South African Prime Minister Jan Smuts resisted any agreement with the UN on the issue. He defied any UN oversight and instead annexed the territory.31 Domestic South African law and apartheid policies applied equally in the mandate territory of South West Africa after 1949.32 The struggle against apartheid became the cause célèbre for newly independent and non-​aligned states. It allowed them to indict colonialism in its contemporary manifestation. While they focused their struggle within the UNGA, on three occasions in the 1950s they brought in the ICJ via requests to deliver advisory opinions.33 In 1950 the ICJ unanimously affirmed the international status of the mandate territory in spite of South Africa’s decision to annex it.34 In 1955 the ICJ held, again unanimously, that the UNGA could take decisions on the mandate by majority,35 and a year later it affirmed that the UNGA could hold hearings with petitioners from the mandate territory.36 Even though five judges dissented on the last question, these advisory opinions did not draw the ICJ out into rough waters, nor did they pit great powers against newly independent and non-​aligned states. The stakes were not yet high enough. That changed radically when Ethiopia and Liberia brought contentious proceedings against South Africa.37 Even if the precise focus of the case shifted with developments in the claimants’ litigation strategy, South Africa’s apartheid regime was always on the line. Was apartheid compatible with international law? Did 30 The Council of the League of Nations decided on 17 December 1920 that South West Africa would be a so-​called ‘C’ mandate, to be administered by South Africa. 31 The Future of South West Africa, UNGA Res 65 (I) (14 December 1946). Also see Mark Mazower, No Enchanted Palace: The End of Empire and the Ideological Origins of the United Nations (Princeton University Press 2009) 50–​61. 32 South West Africa Affairs Amendment Act, No 23 of 1949. 33 For an overview see Anglo-​Iranian Oil Co (Preliminary Measures, Order) (n 11); Soloman Slonim, South West Africa and the United Nations:  An International Mandate in Dispute (Johns Hopkins University Press 1972). 34 International Status of South West Africa (Advisory Opinion) [1950] ICJ Rep 128, 143–​44 (hereafter International Status of South West Africa (Advisory Opinion)). After 1949 domestic law made no further reference to South West Africa as mandate or trusteeship territory and applied equally on that territory. See South West Africa Affairs Amendment Act, No 23 of 1949. For the political vision of Jan Smuts, see Mazower (n 32) 46–​61. 35 Voting Procedure on Questions relating to Reports and Petitions concerning the Territory of South West Africa (Advisory Opinion) [1955] ICJ Rep 67. 36 Admissibility of Hearings of Petitioners by the Committee on South West Africa (Advisory Opinion) [1956] ICJ Rep 23 (hereafter Admissibility of Hearings of Petitioners by the Committee on South West Africa (Advisory Opinion)). The League Council already provided for petitions in 1923 to make the supervisory system more effective. It did not include hearings, but the mandate power would comment on any such petitions. South Africa did not do that and the UNGA thus claimed that hearings could better establish the factual situation. See Christof Heyns and Magnus Killander, ‘South West Africa/​Namibia (Advisory Opinions and Judgments)’ (2007), in Rüdiger Wolfrum (ed), Max Planck Encyclopedia of Public International Law (OUP 2013) para 28–​30. Context: Anghie (n 3) 147ff. 37 Abi-​Saab, ‘World Court’ (n 15) 5.

242  Ingo Venzke the introduction of the apartheid regime within South West Africa violate South Africa’s obligations as a mandate power? These questions drew the front line in the battle for international law, among state representatives at the UN, and among judges at the Court.

B.  Contentious proceedings: the Court’s jurisdiction (first phase) The proceedings were an orchestrated affair with a leading role for the Group of African States at the UNGA.38 The litigators were a small team around Ernest Gross.39 They worked on a small budget and their arms were no match to those of South Africa, whose fifty lawyers worked on the case around the clock.40 Of the 3,756 pages of written pleadings, 3,105 (83 per cent) came from the respondent’s side.41 South Africa invested significant efforts into establishing its readings of the facts and into supporting the necessity of the apartheid regime in the context of ‘African realities’.42 The applicants did not want to be drawn on that terrain as they argued on more principled grounds. They also feared lengthy proceedings. Their first main argument was that apartheid led to a despicable standard of treatment for the black population and therefore breaches South Africa’s obligation to work towards that population’s ‘well-​being and development’. The second main argument was more radical: Apartheid was per se illegal because it separated people according to their membership in a group, that is to say, race.43 Since the first argument was of course difficult to make without engaging with the facts on the ground, the emphasis gradually shifted towards the latter more principled, but also more difficult, argument.44 Two key issues stood out during the first phase of the proceedings on the ICJ’s jurisdiction. First, according to Article 7 of the Mandate for South West Africa, the Mandatory ‘agree[d]‌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’. The narrow majority of eight votes to seven held that Article 7 did not require the claimants to show an individual material interest to bring a

38 See UNGA Res 1565 (XV) (18 December 1960), ‘[c]ommends the Governments of Ethiopia and Liberia upon their initiative in submitting such a dispute to the International Court of Justice’. 39 International lawyer Anthony D’Amato was also part of the team. 40 D’Amato (n 5) 22–​23. 41 ibid. 42 ibid 22. 43 ibid  24–​25. 44 ibid.

The ICJ: Colonial Imprints, Possible Change  243 case.45 Paraphrasing the language of the League’s Covenant, the majority argued that the well-​being and development of the peoples of underdeveloped territories form a sacred trust. It held that, as part of this system, Article 7 implements one of the ‘securities for the performance of this trust’.46 According to the majority, the mandate ‘vest[s] the right of invoking the compulsory jurisdiction against the Mandatory . . . in each of the other Members of the League. Protection of the material interests of the Members or their nationals is of course included within its compass, but the well-​being and development of the inhabitants of the Mandated territory are not less important.’47 Second, would it stand in the way of the ICJ’s jurisdiction that the League had dissolved? In its advisory opinions the ICJ had already stated that ‘the effective performance of the sacred trust of civilization by the Mandatory Powers required that the administration of mandated territories should be subject to international supervision’ and that ‘[t]‌he necessity for supervision continues to exist despite the disappearance of the supervisory organ under the Mandates System’.48 The majority in 1962 reasoned similarly that the method of looking at the natural and ordinary meaning of the words . . . is not an absolute one. Where such a method of interpretation results in a meaning incompatible with the spirit, purpose and context of the clause or instrument in which the words are contained, no reliance can be validly placed on it.’49

The applicants had standing to challenge South Africa’s conduct as a mandate power. The majority understood the institution of proceedings as part of the structure of effective supervision—​as part of the sacred trust ‘laid upon the League as an organized international community and upon its Member States’.50 The ‘system is dedicated to the avowed object of promoting the well-​being and development of the peoples concerned and is fortified by setting up safeguards for the protection of their rights’.51 Flanking the majority, Judges Bustamente (Peru) and Jessup (US) each stressed in their separate opinions the responsibility of the mandate power towards all

45 South West Africa Cases (Ethiopia v South Africa; Liberia v South Africa) (Preliminary Objections, Judgment) [1962] ICJ Rep 319, 343 (hereafter South West Africa Cases (Preliminary Objections, Judgment)). 46 ibid 344. 47 ibid. 48 International Status of South West Africa (Advisory Opinion) (n 35) 136; Admissibility of Hearings of Petitioners by the Committee on South West Africa (Advisory Opinion) (n 37) 27. 49 South West Africa Cases (Preliminary Objections, Judgment) (n 46) 336. On the principle of effectiveness in the advisory opinions, see Hersch Lauterpacht, The Development of International Law by the International Court (Stevens 1958) 291. 50 South West Africa Cases (Preliminary Objections, Judgment) (n 46) 329 (italics added). 51 ibid.

244  Ingo Venzke states.52 In Jessup’s words, the mandate’s compromissory clause ‘protect[s]‌the general interest of Members of the international community’.53 Judge ad hoc Mbanefo (Nigeria) agreed in his separate opinion and further expanded on the need for a wide understanding of what constitutes a dispute.54 Six of the seven judges in the minority wrote dissenting opinions: President Winiarski (Poland), Judge Basdevant (France), jointly Judges Sir Percy Spender (Australia) and Sir Gerald Fitzmaurice (UK), Judge Morelli (Italy), and Judge ad hoc van Wyk (South Africa). Judge Spiropoulos (Greece) only attached a very short declaration in which he simply stated that the Court’s jurisdiction cannot be established with sufficient certainty.55 It is the joint opinion of Judges Spender and Fitzmaurice that stands out for its strong contrast with the majority—​for its length (it was three times longer than the Judgment) and for the way in which it foreshadows the proceedings’ second phase. Judges Spender and Fitzmaurice rejected Ethiopia’s and Liberia’s standing due to the applicants’ lack of an individual interest in the subject matter of the case. They argued that the mandate system only contained substantive provisions ‘for the benefit of the people of the territory’, or ‘for the national benefit of the Members of the League and their nationals (commercial rights, open door, freedom for missionary activities, etc.)’.56 Spender and Fitzmaurice stressed how the mandate system was understood at the time when South Africa became the mandate power and, on that basis, they concluded that Article 7 only extends to ‘a dispute between the actual parties before the Court about their own interests’.57 The ICJ had sustained the hopes of newly independent and non-​aligned states that apartheid would be internationally scrutinized and criticized through judicial proceedings, hopefully driving the US and UK to change their protective stance towards South Africa. But when the ICJ’s Judgment on jurisdiction was announced, a loud cheer went up among the group South African officials just as well.58 The judgment was incredibly close, and emboldened by the narrow outcome, South Africa grew bolder in the second phase of the proceedings.

52 South West Africa Cases (Ethiopia v South Africa; Liberia v South Africa) (Preliminary Objections, Separate Opinion of Judge Bustamente) [1962] ICJ Rep 346, 359. 53 South West Africa Cases (Ethiopia v South Africa; Liberia v South Africa) (Preliminary Objections, Separate Opinion of Judge Jessup) [1962] ICJ Rep 387, 432. 54 South West Africa Cases (Ethiopia v South Africa; Liberia v South Africa) (Preliminary Objections, Separate Opinion of Judge Mbanefo) [1962] ICJ Rep 437. 55 South West Africa Cases (Preliminary Objections, Judgment) (n 46) 347–​48. 56 South West Africa Cases (Ethiopia v South Africa; Liberia v South Africa) (Preliminary Objections, Joint Dissenting Opinion of Judges Spender and Fitzmaurice) [1962] ICJ Rep 465, 549–​50 (hereafter South West Africa Cases (Preliminary Objections, Joint Dissenting Opinion of Judges Spender and Fitzmaurice)). 57 ibid 558–​59. 58 As reported in D’Amato (n 5) 21–​22.

The ICJ: Colonial Imprints, Possible Change  245

C.  The Court’s turnaround on the merits (second phase) South Africa was sure of the necessity of apartheid rule, of the righteousness of its politics and, increasingly so, of its legal argument before the ICJ. It responded to the applicant’s initially vague arguments with an emphasis on clear definitions and, above all, with a focus on the facts. South Africa pointed to Sudan and Rwanda as disastrous examples for what would happen if it did not enact apartheid.59 Judges Spender and Fitzmaurice could relate to that, as the latter had been the British Foreign Office’s Senior Legal Advisor during the uprising of the Mau Mau in Kenya,60 and the former was Australia’s Minister for External Territories before coming to the ICJ; as such he was in charge of the administration of Australia’s former mandate territories (including Nauru and Papua New Guinea).61 South Africa furthermore asserted that the black population in South West Africa was better off than in many other parts of Africa.62 The South African legal team wished to bring in thirty-​eight witnesses to support its claims on the facts. The applicants, conversely, deliberately maintained distance from arguments about facts and did not intend to call on witnesses at all. At the pre-​trial conference in 1965, South Africa’s agents even invited the judges to come to South West Africa to visit other neighbouring territories and to see ‘African reality’ for themselves.63 The applicants concentrated on principle to the point of abstraction. They were partially constrained by limited resources and, more generally, they wanted to strike a more general blow at apartheid per se, not to criticize some technicalities of administering the mandate. Lead agent Gross’s opening of the second phase was thus marked by an emphasis on the systemic, collective importance of this case: [T]‌he Applicants have not sought judicial recourse in order to secure a narrow material or selfish interest peculiar to themselves. [  .  .  .  ] Their legal interest encompasses nothing less than observance by the Respondent of the totality of its legal obligations under the ‘sacred trust’ of the Mandate.64

By all means, Gross wanted to avoid that the judges accepted the respondent’s invitation for a visit. He therefore let go of the first, more moderate argument about the effect of apartheid on the well-​being and development of the black population 59 South West Africa Cases (Ethiopia v South Africa; Liberia v South Africa) (Verbatim Records) [1956/​II] ICJ Pleadings, 100 (hereafter South West Africa Cases (Verbatim Records II)). 60 Victor Kattan, ‘Decolonizing the International Court of Justice:  The Experience of Judge Sir Muhammad Zafrulla Khan in the South West Africa Cases’ (2015) 5 Asian Journal of International Law 310, 332. 61 With further reference to support what was arguably on Spender’s mind, see ibid 331. 62 South West Africa Cases (Verbatim Records II) (n 60) 100. 63 D’Amato (n 5) 32. 64 South West Africa Cases (Ethiopia v South Africa; Liberia v South Africa) (Verbatim Records) [1956/​I] ICJ Pleadings, 107.

246  Ingo Venzke in South West Africa. Instead, he fully embraced the more radical and more demanding argument that apartheid per se violates international law because it separates people on the basis of their belonging to a racial group.65 The composition of the Court in the proceedings’ second phase had slightly changed with the judicial elections of 1963.66 What is more, Judge Badawi (Egypt) had died in 1965 and Judge Bustamante (Peru) was absent due to illness.67 In this constellation, Sir Percy Spender, now the Court’s President, and Judge Fitzmaurice saw the opportunity to reverse the Court’s 1962 decision.68 Together they urged Judge Sir Muhammad Zafrulla Khan (Pakistan) to recuse himself. Their standoff led to the remarkable fact that Judge Zafrulla did ultimately not sit on the case, even though he neither recused himself, nor did the ICJ ever take a formal decision on this issue.69 Only twelve of the fifteen permanent judges thus ended up deciding on the case. They were now evenly split down the middle and President Spender could cast his tie-​breaking vote so as to deny the claimants’ standing after all.70 According to the new majority—​the new majority of Judges Spender and Fitzmaurice, in order to determine what the rights and obligations of the Parties relative to the Mandate were and are . . . the Court must place itself at the point in time when the mandates system was being instituted, and when the instruments of mandate were being framed. The Court must have regard to the situation as it was at that time, which was the critical one, and to the intentions of those concerned as they appear to have existed, or are reasonably inferred, in the light of that situation.71

In 1966 the ICJ thus held that the mandate system did not provide members with any right ‘to require the due performance of the Mandate in discharge of the “sacred trust” ’.72 It rather held that ‘[t]‌his right was vested exclusively in the League, and was exercised through its competent organs’.73 The new majority did not try very hard to gloss over the fact that it had effectively overturned its 1962 Judgment. Half-​heartedly, it suggested that the two Judgments could be reconciled

65 ibid 84. 66 See (n 96) for further information on the judicial elections and accompanying text. 67 Judge Ammoun (Lebanon) replaced Judge Badawi but as is common practice he did not join in the ongoing proceedings. Kattan (n 61) 345. 68 The elements of intrigue and bickering indeed provide the material for a seductive thriller. For a thrilling but academic exposition of those elements, see ibid. 69 ibid 344. 70 According to Article 55 of the ICJ Statute, ‘in the event of an equality of votes, the President . . . shall have a casting vote’. 71 South West Africa Cases (Second Phase, Judgment) (n 6) 23, para 16. This corresponds exactly to South West Africa Cases (Preliminary Objections, Joint Dissenting Opinion of Judges Spender and Fitzmaurice) (n 57), 549–​50, also see at 558–​59. 72 South West Africa Cases (Second Phase, Judgment) (n 6) 29. 73 ibid.

The ICJ: Colonial Imprints, Possible Change  247 in the sense that in 1966 the ICJ still dealt with issues of jurisdiction that were not of an ‘antecedent character’.74 Apart from President Spender (Australia) and Judge Fitzmaurice (UK), the majority was comprised of Judges Gros (France), Morelli (Italy), Spiropoulos (Greece), Winiarski (Poland), and Judge ad hoc van Wyk (South Africa). Not only did President Spender cast the tie-​breaking vote, but he also attached a declaration directly to the Judgment that was clearly supposed to undermine the authority of any dissenting votes. His message was that the ICJ’s job was done and that dissenting judges should not take the matter further in their individual opinions, so as not to pronounce on the ultimate merits of the applicants’ case.75 According to Spender that would simply not be ‘permissible or proper’.76 However, each of the seven dissenting judges wrote a dissenting opinion: Vice-​ President Wellington Koo (China), Judges Koretsky (USSR), Tanaka (Japan), Jessup (US), Padilla Nervo (Mexico), Forster (Senegal), and Judge ad hoc Mbanefo (Nigeria). Their criticism was thundering, certainly in its combination. All dissenting judges criticized the new majority for its treatment of the 1962 decision.77 According to Judge Nervo, the new majority simply ‘reproduce[s]‌on the present occasion the arguments adduced in dissenting opinions against the Judgment of 1962’. All dissenting judges also emphasized once more the multilateral, collective set-​up of the League’s mandate system. Judges Jessup and Tanaka wrote the longest dissenting opinions by far. Jessup strongly opposed the majority’s decision and its methodological stance, saying that the ‘Court now in effect sweeps away this record of 16 years on the ground that the Applicants have no legal right or interest’.78 But even if he argued that South Africa’s conduct must be measured by the present state of international law, he did not accept that there is an international legal norm that per se prohibited the separation of individuals on account of their membership in a racial group.79 Judge Tanaka did accept such a norm. He tied his reasoning closely to human rights law and to an underlying principle of equality.80 He echoed most closely the applicants’ line of reasoning, holding that ‘the practice of apartheid is fundamentally unreasonable and unjust’.81

74 ibid 18, para 5; Yuval Shany, ‘Jurisdiction and Admissibility’ in Cesare Romano, Karen Alter and Yuval Shany (eds), The Oxford Handbook of International Adjudication (OUP 2014) 788–​89. 75 South West Africa Cases (Ethiopia v South Africa; Liberia v South Africa) (Second Phase, Declaration of Judge Spender) [1966] ICJ Rep 49 [30–​33]. 76 ibid para 36. 77 For a summary overview also see John Dugard, The South West Africa–​Namibia Dispute: Documents and Scholarly Writings on the Controversy between South Africa and the United Nations (University of California Press 1973) 326–​27. 78 South West Africa Cases (Ethiopia v South Africa; Liberia v South Africa) (Second Phase, Dissenting Opinion of Judge Jessup) [1966] ICJ Rep 325, 328. 79 ibid 432–​433, 441. 80 South West Africa Cases (Ethiopia v South Africa; Liberia v South Africa) (Second Phase, Dissenting Opinion of Judge Tanaka) [1966] ICJ Rep 250, 287. 81 ibid 314.

248  Ingo Venzke

IV.  Crisis and change in the ICJ and on its bench A.  The Court in crisis The criticism from outside the ICJ was still stronger. The President of Senegal termed the 1966 decision ‘un vrai scandale’.82 He asserted that ce n’est pas la peine d’être un grand professeur de droit pour maintenir le racisme or le formalisme juridique [ . . . ]. Quel que soit le problème qu’on leur soumet, ces juristes sont pour la ségrégation et pour le racisme. Nous, Africains, nous n’acceptons pas cela’.83

The Liberian government newspaper spoke of the judgment as a ‘travesty of human rights. . . . [T]‌he Court by its infamous decision spits in the face of its applicant by saying “you had no right to come here”. What an insult!’84 The Sidney Morning Herald opined that the judgment is ‘unsatisfactory from all points of view . . . This judgment will convince many that the ICJ is indeed a “white man’s court” ’.85 Many scholars, like Taslim O Elias, who eventually became the Court’s first African President in 1981, critiqued the ruling as ‘legalistic, restrictive and narrow’.86 Rosalyn Higgins called it an ‘aberration’.87 But for many actors at the time it was much more than that. For them, it was symptomatic of their quest and symptomatic of the world as it presented itself to them—​as a white man’s world with a white man’s court. Directly after the 1966 Judgment, the UN African Group gave a press conference to declare its ‘dismay and indignation at the incredible decision’.88 It noted that some of the ICJ’s members had shown themselves to be ‘not very responsible judges’ and it would ‘never be able to vote for the re-​election of these judges’.89 Disenchanted with the ICJ, African states again acted through the UNGA. Still

82 ‘Letter from Dutch Embassy in Dakar to The Hague’ (22 July 1966)  (Dutch National Archive, Ministry of Foreign Affairs, Inv No 24849). 83 ibid. 84 ‘Letter from Dutch Embassy in Monrovia to The Hague’ (Dutch National Archive, Ministry of Foreign Affairs, Inv No 24849). 85 Sidney Morning Herald (20 July 1966) (Dutch National Archive, Ministry of Foreign Affairs, Inv No 24849). 86 Taslim O Elias, Africa and the Development of International Law (Taslim O Elias and Richard Akinjide eds, 2nd edn, Nijhoff 1988) 75 (hereafter Elias, Africa). 87 Rosalyn Higgins, ‘The International Court of Justice and Africa’ in Themes and Theories: Selected Essays, Speeches, and Writings in International Law (OUP 2009) 1071. 88 Reactions in Western countries were more nuanced. The Dutch advisor to the government, stated it was ‘legally understandable, yet very conservative’ and was sure to ‘affect the prestige of the Court’ (16 August 1966) (Ministry of Foreign Affairs, Dutch National Archive, Ministry of Foreign Affairs, Inv No 24847). 89 ‘Letter from Dutch Delegation at UN to The Hague’ (19 July 1966)  (Dutch National Archive, Ministry of Foreign Affairs, Inv No 24849).

The ICJ: Colonial Imprints, Possible Change  249 in 1966, the UNGA passed a resolution declaring that South Africa’s mandate for South West Africa was terminated.90 In the immediate aftermath of the 1966 decision a majority of states also refused to adopt supplementary estimates to the ICJ in the Fifth Committee—​something that would otherwise have been a routine matter. A look at the ICJ’s docket and at its bench reveals the full impact of the 1966 Judgment. Whereas twenty-​seven cases were brought to the Court in the 1950s, only eight were brought in the 1960s, and nine in the 1970s. With the exception of the joint proceedings in North Sea Continental Shelf in 1967, no single case was filed from 1962 until 1971.91 The Court was in such a crisis that the UN Secretary General, upon request by the UNGA, distributed a questionnaire in 1970 to ‘Review of the Role of the International Court of Justice’.92 In a debate on the issue in the UNGA, the representative of Ghana replied in a strong, but far from unique, fashion that the ICJ would be in a much better position ‘if international law were more progressive and did not reflect outmoded conservative thought reminiscent of imperialism’.93 The criticism here as elsewhere was imbued by the ICJ’s decision in South West Africa and its backward-​looking and deeply conservative interpretative stance.94

B.  The quest for representation Bargaining and compromise have always characterized the process of electing the fifteen permanent judges—​five of them every three years.95 When Ethiopia and Liberia brought the contentious proceedings against South Africa in 1960, African States already worked towards their better representation on the ICJ’s bench.96 90 UNGA Res 2145 (XXI) (27 October 19). See further Edward McWhinney, ‘ “Internationalizing” the International Court:  The Quest for Ethno-​Cultural and Legal-​Systemic Representativeness’ in Emmanuel G Bello and Prince B A Ajibola (eds), Essays in Honour of Judge Taslim Olawale Elias (vol 1, Contemporary International Law and Human Rights, Nijhoff 1992) 287 (hereafter McWhinney, ‘ “Internationalizing” the International Court’); Taslim O Elias, The International Court of Justice and some Contemporary Problems: Essays on International Law (Nijhoff 1983). 91 The last one was Belgium’s application to institute proceedings against Spain on 19 June 1962 in Barcelona Traction, Light and Power Company, Limited. India broke the pattern with its application to institute proceedings against Pakistan on 30 August 1971 in Appeal Relating to the Jurisdiction of the ICAO Council. 92 The initiative to review the role of the Court was launched by the Sixth Committee and approved by the UNGA in UNGA Res 2723 (XXV) (11 December 1970). 93 Quoted in Helmut Steinberger, ‘The International Court of Justice’ in Max Planck Institute for Comparative Public Law and International Law (ed), Judicial Settlements of International Disputes: An International Symposium (Springer 1974) 226–​27. 94 ibid 227; Heribert Golsong, ‘Role and Functioning of the International Court of Justice: Proposals Recently Made on the Subject’ (1971) 31 Zeitschrift für ausländisches öffentliches Recht und Völkerrecht 673. 95 See Ruth Mackenzie and others, Selecting International Judges:  Principle, Process, and Politics (OUP 2010); for concise overviews of the elections see Shabtai Rosenne, The Law and Practice of the International Court, 1920–​1996 (3rd edn, Nijhoff 1985). 96 See Elias, Africa (n 87) 51.

250  Ingo Venzke At the outset of the 1963 elections, the Afro-​Asian group presented three candidates, even though the group held none of the five seats that opened.97 According to the Dutch head diplomat in New York: ‘The candidatures of Ghana, Lebanon and Pakistan for the seats of the ICJ, which become vacant on the fifth of February 1964, can indeed be seen as nothing else than an intentional attempt to alter the existing division of seats of the Court’.98 The Afro-​Asian group even proposed a fourth candidate, Sir Adetokunbo Ademola of Nigeria. When the Dutch delegation received a letter asking for support for Ademola, a diplomat just scribbled ‘Another AA!’ onto the letter in apparent surprise.99 How did the Western group react to the African demand for at least one extra seat, if not more? According to a firm unwritten rule, each permanent member of the Security Council presents one judge.100 The seats of the UK and France were thus not at issue. The Dutch representation in New York set out the situation and strategy: [t]‌he three Latino seats remain open to be filled. The Latinos presently have four seats, Europe four plus the U.S. and Australia, the Soviets two, Asia two. There is therefore a large pressure from Africa to receive one or more seats and from Asia to expand its number of seats. This can only go at the expense of Europe or Latin America. It is therefore in the interest of Europe that this time the wishes of Asia and Africa are met at the expense of Latin America, or else the Greek seat will surely be attacked by the Africans when it becomes vacant in 1969. It is therefore desirable that this year not more than one Latino is chosen and both other Latino seats would go to Asia and Africa, for example Zafrulla Khan and Sir Asafu Adjaye (Ghana).101

Western diplomats tried to thwart, or at least redirect, the African quest for a greater share of the seats by closing their ranks and, if necessary, by sacrificing one or even two Latin American seats rather than a European one. The UK signed on to this strategy: ‘What concerns the three Latino vacancies in the Court, the British would vote for Nervo (Mexico), Zafrullah Khan (Pakistan) and probably,

97 See ‘Letter from Service International Organizations to New York’ (22 November 1962) (Dutch National Archive, PR NY, Inv No 1888). 98 ‘Letter from New  York to Ministry of Foreign Affairs’ (12 December 1962)  (Dutch National Archive, PR NY, Inv No 1888). 99 ‘Letter from the Permanent Mission of Nigeria to the Dutch Delegation’ (20 March 1963) (Dutch National Archive, PR NY, Inv No 1888). AA means in this context ‘Afro-​Asian’. 100 Chittharanjan F Amerasinghe, ‘Judges of the International Court of Justice:  Election and Qualifications’ (2001) 14 Leiden Journal of International Law 335, 346; Heyns and Killander (n 37) para 20, with further references. 101 ‘Letter from Schumann to Ministry of Foreign Affairs’ (26 May 1963) (Dutch National Archive, PR NY, Inv No 1888).

The ICJ: Colonial Imprints, Possible Change  251 although with very little enthusiasm, for Adaye (Ghana).’102 In the end, apart from Gros (France) and Fitzmaurice (UK, re-​elected), Nervo (Mexico), Zafrullah Khan (Pakistan), and Forster (Senegal) were elected. The European number of judges remained the same but Latin America’s representation decreased by two (remaining with two). Asia’s as well as Africa’s representation each increased by one (now totalling three and two, respectively).

C.  The effects of South West Africa The 1966 elections were held just three months after the ICJ’s second judgment in South West Africa. The judgment’s effects were clearly felt. The Dutch representation in New York wrote to The Hague that ‘[t]‌he Africans see the judgment as a political, not as a judicial decision and they will connect consequences to it. The upcoming elections for the Court will surely be influenced by this development.’103 The British representation expected the same: ‘Foreign Affairs was of the opinion that, when the election of five new judges for the Court is at issue, intense Afro-​ Asian activity to be more heavily represented in the Court is to be expected.’104 Two seats of the Western group were contested—​none other than the one of Judge Spender (Australia), who occupied the so-​called commonwealth seat, and that of Judge Spiropoulos (Greece), who had also been in the ICJ’s 1966 majority.105 A Dutch diplomat reports that ‘in order to acquire the commonwealth seat, the AA group spares no trouble, partially due to the judgment in the South West Africa case, to elect Onyeama (Nigeria)’.106 To defend both seats of the Western group, the UK proposed once more to close the ranks by reducing the number of European candidates so that the votes on European candidates would not be scattered.107 The French delegation agreed: ‘Il a été reconnu que l’ Europe Occidentale courait le risque de perdre ce siège si les membres du groupe ne se mettaient pas d’accord pour soutenir un candidat unique’.108

102 ‘Letter from Joseph Luns (minister of Foreign Affairs) to New York’ (5 September 1963) (Dutch National Archive, PR NY, Inv No 1888). 103 ‘Letter from Dutch Delegation at UN to the Hague’ (20 July 1966)  (Dutch National Archive, Ministry of Foreign Affairs, Inv No 24849). 104 ‘Letter from Dutch Embassy in London to The Hague’ (21 July 1966) (Dutch National Archive, Ministry of Foreign Affairs, Inv No 24849). 105 The other three seats that would become vacant were those of Judges Wellington Koo (China), Winiarski (Poland), and Ammoun (Lebanon). See ‘Election of Five Members of the International Court of Justice’ Note by the Secretary General (28 September 1966) A/​6420, S/​7490. 106 ‘Letter from Dutch Delegation in New York to The Hague’ (24 August 1966) (Dutch National Archive, PR NY, Inv No 1889). 107 ‘Letter from Dutch Delegation in New York to The Hague’ (1 October 1966) (Dutch National Archive, PR NY, Inv No 1889.). 108 ‘Deliberation in Western European Group’ (10 October 1966) (Dutch National Archive, PR NY, Inv No 1889).

252  Ingo Venzke Concentrating European efforts on one candidate to replace Judge Spiropoulos was easier said than done. None of the states in the Western group was willing to revoke its own candidate. In these circumstances the Afro-​Asian group even proposed a deal: African support for the European seat in return for European support for the Nigerian candidate to take the commonwealth seat.109 The Western group was not amused and did not to respond.110 The election was then ‘full of surprises’.111 The European seat could ultimately be defended and went to Sture Petrén from Sweden. But the commonwealth seat was lost to an African candidate. Under the spell of South West Africa, Judge Spender’s compatriot Sir Kenneth Bailey could not gain sufficient votes in the UNGA and Charles D Onyeama (Nigeria) was elected instead.112 Despite this loss, the main impression was one of relief: at least the European seat remained in European hands. The repercussions of South West Africa continued to shape delegation’s sensibilities and strategies. When the seat of Judge Gaetano Morelli from Italy opened up in 1969, the Italians did not actively support Morelli for re-​election. Nor did they seek to ‘replace Morelli with another Italian, not just because of the implicitly accepted principle of rotation of legal systems, but also because A-​A countries remember all too well how Morelli positioned himself in the South West Africa case’.113 The battle for the seat took features similar to the previous elections. The Europeans were again trying to focus their efforts on a single candidate. Virginia Hartley, an official at the US State Department, argues: ‘If this was not the case the danger is that the African countries . . . shall succeed in getting Ignacio-​Pinto elected as replacement for Ago Morelli.’114 African governments even formally inquired whether the Western group was willing to give Morelli’s seat to the African candidate Ignacio-​Pinto (Benin).115 The Western group called an emergency meeting and replied about two weeks later: The Western European and others group attached primordial importance to the gentlemen’s agreements, which in the past have been applied with regard to 109 ‘Letter from Dutch Delegation in New York to The Hague’ (24 October 1966) (Dutch National Archive, PR NY, Inv No 1889). 110 ibid. 111 ‘Letter from Dutch Delegation in New York to The Hague’ (4 November 1966) (Dutch National Archive, PR NY, Inv No 1889). 112 Sir Kenneth Bailey was notably the likely candidate to have been nominated by Australia instead of Percy Spender back in 1958. See Kenneth J Keith, ‘International Court of Justice: Reflections on the Electoral Process’ (2010) 9 Chinese Journal of International Law 49, 54–​55. Their backgrounds are quite different and Bailey would arguably have made a different decision in South West Africa. 113 ‘Letter from Dutch Delegation in New York to The Hague’ (20 August 1969) (Dutch National Archive, Ministry of Foreign Affairs, Inv No 24947). 114 ‘Letter from Dutch Embassy in Washington to The Hague’ (22 August 1969) (Dutch National Archive, Ministry of Foreign Affairs, Inv No 24947). 115 27 August 1969, Letter of the Dutch delegation in New York to The Hague, NL-​HaNa, PR NY, Inv No 1889.

The ICJ: Colonial Imprints, Possible Change  253 elections to UN bodies to provide the geographical distribution of seats. . . . Thus the Western European group has made it a firm policy to respect the nominations made by other geographical groups as recognized by the above-​mentioned resolution and to elect the candidates nominated by them. In return, the group has trusted, and continues to trust, that reciprocal respect will be shown by other groups with regard to its nominations. . . . [T]‌he forthcoming elections to the Court should result in the seat to be vacated by Mr. Morelli being filled by a nominee from within the WEO group.116

Once again, the Western group was divided between too many candidates of its own. Joseph Luns, Dutch Minister of Foreign Affairs, noted in a memo to all embassies in the Western group that the African group in the U.N., which desires an expansion of the number of African seats in the Court from two to three, will want to profit from a European fragmentation at the favor of the candidature of Ignacio-​Pinto, despite the fact that none of the vacant seats belongs to Africa. In order to prevent the probably permanent loss of a WEO seat, it is desirable to agree on a drastic reduction of the number of WEO candidates.117

The Canadian government stated that ‘with all due respect for the developing countries, the Court should not become some sort of private hunting ground of this group’.118 It should at least not hunt Western seats. Ultimately, the Spanish candidate De Castro was elected to replace Judge Morelli. But the Asian seat of Judge Tanaka (Japan) went to place Judge Ignacio-​Pinto (Benin).119 It was not decisive in this regard that Judge Tanaka had elaborately supported the applicants’ arguments in his 1966 dissenting opinion.

V.  The ICJ’s continued ambivalence Was the game worth the candle? South Africa’s actions in South West Africa/​ Namibia once more came before the ICJ when, in July 1970, the Security Council requested an advisory opinion on the legal consequences of South Africa’s continued

116 ‘Letter of West European group to A-​A Group’ (15 September 1969) (Dutch National Archive, PR NY, Inv No 1889). 117 ‘Circulaire Joseph Luns’ (1 September 1969) (Dutch National Archive, Ministry of Foreign Affairs, Inv No 24947). 118 ‘Letter from the Dutch embassy in Ottawa to The Hague’ (10 September 1969) (Dutch National Archive, Ministry of Foreign Affairs, Inv No 24947). 119 Also see Manfred Lachs, ‘Some Reflections on the Nationality of Judges of the International Court of Justice’ (1992) 4 Pace International Law Review 49, 54–​55.

254  Ingo Venzke presence in Namibia notwithstanding that the Council had declared that presence illegal about six months earlier.120 The majority of the judges accepted the invitation to make good on the mistakes that they saw in the law and politics of the 1966 Judgment. The firmness with which the majority asserts its authority to deliver the opinion and the eagerness with which it turns to issues of substance flips around the exuberant formalism of the 1966 Judgment.121 The 1971 Opinion thus confronts the 1966 judgment head-​on, reasserting that an international instrument has to be interpreted and applied within the framework of the entire legal system prevailing at the time of the interpretation. In the domain to which the present proceedings relate, the last fifty years . . . have brought important developments. These developments leave little doubt that the ultimate objective of the sacred trust was the self-​determination and independence of the peoples concerned.122

For the first time the ICJ mentioned all peoples’ right to self-​determination.123 Judges Fitzmaurice and Gros certainly disagreed with the ICJ’s acceptance to deliver the opinion, its findings and its interpretative stance.124 But their camp had lost the battle by the beginning of the 1970s. Many judges at the ICJ then saw the Court less as an instrument in the resolution of individual disputes alone, as Spender and Fitzmaurice had done, and more as an organ that should contribute to the progressive development of the law in the service of the international community—​a community enlarged by newly independent states and their legitimate interests.125 Many judges developed such a community-​ oriented conception of the functions of the ICJ in contrast to the views espoused 120 UN Security Council Res 276 (30 January 1970), declaring that ‘the continued presence of the South African authorities in Namibia is illegal and that consequently all acts taken by the Government of South Africa on behalf of or concerning Namibia after the termination of the Mandate are illegal and invalid’. UNSC Res 284 (20 July 1970), requesting the advisory opinion. 121 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 4, 22–​27 (hereafter Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (Advisory Opinion)). See McWhinney, World Court (n 25) 23, arguing the 1971 opinion is as legally (un)persuasive as the 1966 decision because the reasoning is equally driven, just in opposite directions. 122 Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (Advisory Opinion) (n 122) 31, para 53. 123 ibid para 52. See in further detail Shabtai Rosenne, ‘Decolonisation in the International Court of Justice’ (1996) 8 African Journal of International and Comparative Law 564. 124 Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (Advisory Opinion, Dissenting Opinion of Judge Fitzmaurice) [1971] ICJ Rep 220; Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (Advisory Opinion, Dissenting Opinion of Judge Gros) [1971] ICJ Rep 323. 125 On these basic conceptions see Armin von Bogdandy and Ingo Venzke, ‘On the Functions of International Courts: An Appraisal in Light of their Burgeoning Public Authority’ (2013) 26 Leiden Journal of International Law 49.

The ICJ: Colonial Imprints, Possible Change  255 by Spender and Fitzmaurice. They did so in the 1971 opinion just as well as in the Barcelona Traction judgment a year earlier, when the ICJ famously introduced the essential distinction  .  .  .  between the obligations of a State towards the international community as a whole, and those arising vis-​à-​vis another State in the field of diplomatic protection. By their very nature the former are the concern of all States. In view of the importance of the rights involved, all States can be held to have a legal interest in their protection; they are obligations erga omnes.126

This reasoning can hardly be understood were it not in response to the disaster of 1966. The Court had changed. The game was worth the candle. But neither change in international law nor in the ICJ comes overnight or without setbacks and ambivalence. The ICJ’s 1975 Advisory Opinion in West Sahara notably coupled the recognition of peoples’ right to self-​determination with legal concepts such as terra nullius that deeply reflect European conceptions of political organization.127 Judges Ammoun (Lebanon) and Forster (Senegal) critiqued the majority for assessing patterns of African socio-​political organization by European standards.128 The doctrinal position according to which questions of legality should be determined in light of the law as it stands at the time is seemingly straightforward.129 How to read the law of the past is less straightforward. In particular, choices about the categories with which to make sense of the past tend to contain implicit, European biases.130 Now, as then, the battle for the Court extends to the way in which it approaches the past.

VI. Conclusions The political arenas of the UN were the preferred venues for newly independent states’ battle towards a different international law. When they turned to the ICJ as 126 Barcelona Traction, Light and Power Company, Limited (Belgium v Spain) (Judgment) [1970] ICJ Rep 3, 32. 127 Western Sahara (Advisory Opinion) [1975] ICJ Rep 12. For critiques see McWhinney, ‘ “Internationalizing” the International Court’ (n 90) 72–​75 and 83–​85; Anghie (n 3) 111–​12. 128 Western Sahara (Advisory Opinion, Separate Opinion of Judge Ammoun) [1975] ICJ Rep 83, 86–​ 87, drawing on the pleadings of Algerian Ambassador Mohammed Badjaoui; Western Sahara (Advisory Opinion, Separate Opinion of Judge Forster) [1975] ICJ Rep 103. 129 See Rosalyn Higgins, ‘Some Observations on the Inter-​Temporal Rule in International Law’ in Jerzy Makarczyk (ed), Theory of International Law at the Threshold of the 21st Century: Essays in Honour of Krzysztof Skubiszewski (Kluwer Law International 1996) 501; Markus Kotzur, ‘Intertemporal Law’ (2008), in Rüdiger Wolfrum (ed), Max Planck Encyclopedia of Public International Law (OUP 2013). 130 That is a question of legal practice as much of scholarly treatment, see Arnulf Becker Lorca, ‘Eurocentrism in the History of International Law’ in Bardo Fassbender, Anne Peters and Simone Peter (eds), The Oxford Handbook of the History of International Law (OUP 2012); Martti Koskenniemi, ‘Histories of International Law:  Significance and Problems for a Critical View’ (2013) 27 Temple International and Comparative Law Journal 215, 221–​26.

256  Ingo Venzke part of the struggle against South Africa’s apartheid regime, the ICJ let them down. The ICJ was seen to protect great power, privilege, and prerogative. It seemed to have permitted South Africa’s unabashedly racist policies, even within the mandate territory of South West Africa. When the dust settled around the ICJ in 1966, the old regime still stood. But the ICJ’s authority in the world had taken a heavy toll. Unlike arms or weapons, authority cannot be stored.131 As a discredited actor, the ICJ mostly remained on the sidelines of the battle for international law. For newly independent and non-​ aligned states the case was loud and clear: It was a white man’s court for a white man’s international legal order.132 The ICJ’s composition continued to change through electoral battles at the UN. African states gained seats, mostly at the expense of the Latin American group. But changes on the bench did not turn the ICJ into a vehicle for progressive politics. With its Namibia Advisory Opinion, the ICJ tried to rectify some wrongs. But its practice has remained ambivalent—​an ambivalence that it has regained together with gradual increases in its authority. As time passed, the ICJ wished to think of South West Africa as an aberration.133 But its 1966 Judgment can hardly be understood as a slip of the pen. Albeit narrow, a majority of judges supported it. Half a century later, the ICJ again evoked vivid memories of the 1966 Judgment when, in 2016, it declined its jurisdiction in the Nuclear Arms Race (Marshall Islands) cases, once more by the President’s tie-​ breaking vote.134 More than anything else, an inquiry into the battle for the ICJ, with South West Africa as its captivating highpoint, presents legal and institutional developments as a product of struggle. This changes the understanding of its ICJ’s practice and of the distribution of its seats, which appear much less as expressions of a timeless rationality, but as temporary victories of different formations of interested actors. Such an inquiry also serves as a reminder that the terrain of struggle is uneven and that different outcomes were still possible, in 1966 as in 2016.

131 Hannah Arendt, ‘What is Authority’, in Between Past and Future (Penguin 2006), especially at 121. 132 See (n 86). 133 Higgins (n 88) 1071. 134 Obligations Concerning Negotiations Relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament (Marshall Islands v United Kingdom), Preliminary Objections, Judgment, 5 October 2016, ICJ Reports (2016) 833. See Anghie, ‘Politic, Cautious, and Meticulous: An Introduction to the Symposium on the Marshall Islands Case’ 111 AJIL Unbound (2017) 62.

11

A Battlefield Transformed The United Nations and the Struggle over Postcolonial Statehood Guy Fiti Sinclair

I. Introduction The battle over international law extended to the institutional context within which that law was increasingly formed. As much as the United Nations (UN) provided an arena for the promotion and contestation of decolonization, decolonization itself effected a profound transformation in the legal structures and powers of the UN. This chapter traces a series of interconnected battles or struggles in the early UN, each of which resulted in innovations in the institutional framework and powers of the UN that had immediate implications for decolonization. In particular, the chapter focuses on three axes of struggle, in relation to the meaning of self-​government, the values and practices of modern government, and the import of sovereign equality.1 The battle over the UN began even before its creation. Planning for the UN was dominated by ‘great power’ interests, and its Charter strongly reflected those interests, most notoriously in the structure of the Security Council and the veto wielded by its five permanent members. Nevertheless, contestation by smaller states during the negotiation process resulted in the introduction of a number of tensions, ambiguities, and antinomies into the text of the Charter, which were subsequently exploited by countries seeking to promote decolonization. Moreover, even before the Charter had been ratified by a majority of its signatories, a succession of world events—​most notably the deepening Cold War conflict between West and East—​ made it unlikely that many of its key provisions would be implemented as originally foreseen. Almost immediately after the UN’s creation, then, the institutional framework of the organization began to change under the influence—​and in service—​of decolonization. The first axis of struggle, examined in Section II of this chapter, 1 This chapter draws on research conducted for Guy Fiti Sinclair, To Reform the World: International Organizations and the Making of Modern States (OUP 2017). Thanks to the organizers and participants in the authors’ workshop, ‘The Battle for International Law in the Decolonization Era’. Guy Fiti Sinclair, A Battlefield Transformed In: The Battle for International Law: South-North Perspectives on the Decolonization Era. Edited by: Jochen von Bernstorff and Philipp Dann, Oxford University Press (2019). © The Several Contributors. DOI: 10.1093/oso/9780198849636.003.0012

258  Guy Fiti Sinclair concerned the meaning of sovereign equality in relation to the makeup and procedures of the Security Council.2 Section III analyses the struggles that led to an elaboration of the machinery for promoting self-​government in colonized territories. The third axis of struggle, considered in Section IV, arose out of efforts to universalize a model of government that was defined by a core set of social welfare values and techniques of economic intervention. In each case, the UN itself provided the institutional setting (the battlefield) and the normative resources (the weapons) for the struggle for decolonization.3 The image of a battle, around which this book is organized, might be understood as necessarily implying an outcome of destruction and negation. This chapter contends, however, that the battle over international law in the UN during the period of decolonization was profoundly creative and generative. Section V argues that the three axes of struggle noted above came together in the invention of a new institutional form, which has become the most visible ‘face’ of the UN today: the peacekeeping operation. Beginning with the UN Emergency Force in 1956, peacekeeping emerged as a complex technology for managing the end of European imperialism in an orderly fashion, for giving small states a more significant role in the peace and security functions of the UN and protecting their position vis-​à-​vis the ‘great powers’, and for the construction of modern states on a broadly Western model in the decolonized world. The tensions inherent between these diverse purposes became visible in the Congo operation of 1960–​1964, which at once marked a point of consolidation of earlier institutional innovations, revealed the limits of each of the struggles underlying them, and established a new field of battle that remains in contestation today.

II.  The battle over sovereign equality Despite affirming ‘the principle of the sovereign equality of all its Members’,4 the UN Charter granted extraordinary rights to the leading Allied powers—​the United States (US), the United Kingdom (UK), the Union of Soviet Socialist Republics (USSR), France, and China—​who were designated permanent members of the Security Council, with primary responsibility for achieving the UN’s main purpose of ‘maintain[ing] international peace and security’.5 Much of the debate over the terms of the Charter had centred on the extent of the great powers’

2 General Assembly (GA) Res 377 (V) (3 November 1950). 3 This chapter focuses on the contributions of the UN’s political and administrative organs during the period of decolonization. For consideration of the activities of the UN’s principal judicial organ in the same period, see chapter [X]‌. 4 UN Charter, art 2(1). 5 UN Charter, art 1(1).

The Battle and the United Nations  259 voting privileges, in particular, the veto power of these permanent members of the Security Council.6 Most controversial was the extension of that power to the process of amendment, which would hinder efforts to remove or attenuate the veto itself.7 Nevertheless, the final version of the Charter affirmed that any amendment to the Charter had to be passed by a two-​thirds vote of the UN General Assembly (UNGA) and ratified by the same proportion of UN members, including all the permanent members of the Security Council.8 An initial axis of struggle in the UN during the period of decolonization thus concerned the veto and its relationship to the sovereign equality of states. Proposals to amend the Council’s voting procedures and abolish the veto, introduced by the Philippines and Cuba at the Assembly’s first session, were defeated.9 Outnumbered in both the Council and the UNGA,10 the USSR first exercised its veto power under Article 27(3) in February 1946; it did so again on more than twenty occasions in the UN’s first two years alone.11 Among other things, the veto was often used in the UN’s first decade to block the applications for membership by states that held opposing ideological views.12 In conditions of profound mutual suspicion between the US and USSR, moreover, every region of the globe seemed to be of crucial geopolitical interest to one or the other of the two superpowers. Accordingly, there was little chance of the Council intervening in a series of crises that erupted in the immediate aftermath of the Second World War.13 The USSR’s prolific use of the veto, and the failure of efforts to eliminate that power, prompted a number of innovations in the Security Council’s practice that appeared to contradict the express terms of the Charter. Article 27(3) required any decision on a non-​procedural matter to be made by ‘an affirmative vote of seven members including the concurring votes of the permanent members’. On its face, this seemed to require all permanent members to be present and voting in favour of the decision. However, a practice quickly developed where a permanent member’s abstention was not treated as a veto. By 1947, the sitting president of the Council was able to affirm that it was ‘now jurisprudence in the Security Council—​and the interpretation accepted for a long time—​that an abstention is not considered a

6 Evan Luard, A History of the United Nations, vol 1 (Macmillan 1982) 44–​51 (hereafter Luard, History of the UN); Townsend Hoopes and Douglas Brinkley, FDR and the Creation of the U.N. (Yale University Press 1997) 198–​200. 7 Shirley V Scott, ‘The Question of UN Charter Amendment, 1945–​1965: Appeasing “the Peoples” ’ (2007) 9 Journal of the History of International Law 83, 85–​86 (hereafter Scott, ‘The Question’). 8 UN Charter, art 108. 9 Scott, ‘The Question’ (n 7) 90. 10 In 1946, only five out fifty-​one member states represented in the UNGA were Soviet allies. Luard, History of the UN (n 6) 94. 11 In the same period, France used the veto twice: once on its own and once jointly with the USSR. Scott, ‘The Question’ (n 7) 90. 12 Luard, History of the UN (n 6) 364–​72. 13 ibid 87–​88, 106–​59, 218–​21.

260  Guy Fiti Sinclair veto, and the concurrent votes of the permanent members mean the votes of the permanent members who participate in the voting’.14 This interpretation was soon extended to cover occasions when a member—​even a permanent member—​was absent from the Security Council.15 From January to August 1950, the USSR boycotted the Council in protest against the presence of a representative from non-​communist China. During this period, without the threat of the Soviet veto, the Council was able to pass resolutions condemning the North Korean invasion of South Korea and recommending that member states provide military assistance to the latter, thus authorizing the most dramatic action taken by the UN during its first decade: armed intervention by a UN force under the command of the US Army General Douglas MacArthur.16 The Korean action aside, the Security Council’s relative inactivity encouraged other UN organs to take more responsibility for the maintenance of international peace and security. The first Secretary-​General, Trygve Lie (1896–​1968), made repeated efforts to expand that office’s political role, among other things attempting to defuse the Berlin blockade crisis, condemning North Korean aggression, proposing a standing UN guard force, and suggesting a twenty-​year program to achieve world peace.17 Whereas Lie’s efforts are generally deemed to have failed, his replacement, Dag Hammarskjöld (1905–​1961), was more successful, including in negotiating the release of US airmen who had been shot down during the Korean War and were being held in China on charges of espionage. As an early commentator noted, the ‘expanding nature’ of the Secretary-​General’s political activities and the growth of influence he exercised was one of the more significant developments within the UN since its inception.18 The UNGA similarly assumed authority to take action directly where the Security Council was prevented from doing so.19 In October 1950, the Assembly passed a resolution that authorized the UN forces under MacArthur’s command to follow South Korean forces into the North.20 Encouraged by this success, the US Secretary of State, Dean Acheson, pursued a plan to enable the UNGA to circumvent the Security Council on a more regular basis. The ‘Acheson Plan’, later known as ‘Uniting for Peace’, addressed conditions where the Council was ‘unable 14 Ralph Zacklin, The Amendment of the Constitutive Instruments of the United Nations and Specialized Agencies (Sijthoff 1968) 183. 15 ibid 184–​85. This was later confirmed in Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) Notwithstanding Security Council Resolution 276 (1970) (Advisory Opinion) [1971] ICJ Rep 16, para 22. 16 UN Security Council (UNSC) Res 82 (25 June 1950) UN Doc S/​RES/​82; UNSC Res 83 (27 June 1950) UN Doc S/​RES/​83. 17 Bertrand G Ramcharan, Preventive Diplomacy at the UN (Indiana University Press 2008) 29–​31; Salo Engel, ‘The Changing Charter of the United Nations’ (1953) Yearbook of World Affairs 71, 83. 18 Francis O Wilcox, How the United Nations Charter Has Developed (US Government Print Office 1954) 1, 7. 19 Thomas M Franck, Nation against Nation (OUP 1985) 38–​40 (hereafter Franck, Nation against Nation). 20 UNGA Res 376 (V) (7 October 1950) UN Doc A/​RES/​376(V).

The Battle and the United Nations  261 to exercise its primary responsibility for the maintenance of peace and security because of lack of unanimity of the permanent members’. In these circumstances, the resolution provided that the UNGA would have power to consider ‘any case where there appears to be a threat to the peace, breach of the peace, or act of aggression’. Most significantly, it allowed the Assembly to organize coercive action by ‘making appropriate recommendations to Members for collective measures . . . to maintain or restore international peace and security’. Moreover, it could do so in an emergency special session convened on twenty-​four hours’ notice by a vote of any seven members of the Security Council or a majority of the members of the UN—​in other words, over the objections of the Council’s permanent members.21 ‘Uniting for Peace’ was carefully drafted to reflect the language of the Charter, giving the UNGA authority only to ‘recommend’ measures, not to ‘decide’ what measures shall be taken. Nevertheless, as Thomas Franck has argued, it was ‘certainly not the intent of the drafters at San Francisco’ that the Assembly would exercise even such limited authority in the face of a permanent member’s veto in the Council.22 Soviet bloc diplomats at the UN criticized the resolution as ‘an attempt to by-​pass the Security Council, to usurp its constitutional powers and relegate it to a secondary position in the United Nations structure, in other words, a back-​door way of amending the Charter’.23 Indeed, much of the UNGA debate on the draft resolution comprised efforts to attack or defend its ‘constitutionality’, interspersed with plainer statements of ideological and even personal antagonism by representatives of the Western and Soviet blocs.24 The innovation of ‘Uniting for Peace’ was directly relevant to the process of decolonization that was ongoing at the time. To many UN members, the expansion of the UNGA’s powers under the ‘Uniting for Peace’ resolution was justified, in both legal and moral terms, by the principle of sovereign equality among states. Emphasizing those members’ concern with the impasse created by conflict between the permanent members, the resolution’s Preamble referred to the Charter’s aim of developing ‘friendly relations among nations based on respect for the principle of equal rights and self-​determination of peoples’.25 In the Assembly debate, several representatives situated the resolution within a longer sequence of struggle in the UN between great and small powers. The Peruvian delegation affirmed that 21 Uniting for Peace, UNGA Res 377 A (V) (3 November 1950) UN Doc A/​RES/​377(V)A, para 1 (hereafter ‘Uniting for Peace’). The ICJ has more recently confirmed that the practice of the UNGA has evolved so it may make a recommendation in respect of a question concerning the maintenance of international peace and security while the matter remains on the Security Council’s agenda; and that this practice is consistent with Article 12(1) of the Charter. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Advisory Opinion) [2004] ICJ Rep 136, 149–​50. 22 Franck, Nation against Nation (n 19) 39. 23 Lester H Woolsey, ‘The “Uniting for Peace” Resolution of the United Nations’ (1951) 45 American Journal of International Law 129, 133. 24 GAOR 5th Session Plenary Meeting 299 UN Doc A/​PV.299 (1959); GAOR 5th Session Plenary Meeting 301, UN Doc A/​PV.301 (1950, 1951) 324. 25 ‘Uniting for Peace’ (n 21) Preamble.

262  Guy Fiti Sinclair its ‘position in this matter was settled at the discussions at San Francisco’, where ‘[t]‌he small nations’ had demanded the ability to take action through the UNGA whenever the Security Council might be ‘paralysed’ through the veto.26 In a similar vein, the Cuban representative stated: ‘We have never shared—​neither before San Francisco, nor at San Francisco, nor since San Francisco—​the opinion that only the great Powers have the right to act in questions involving international peace and security.’ Interpreting Article 27 as imposing a duty on the great powers to maintain international peace and security through agreement among the permanent members, rather than an unfettered right to veto the decisions of the Council,27 he further asserted: ‘[W]e must bear in mind that the [UN] is founded on the principle of the sovereign equality of all its Members. This is a world organization of States with equal rights’.28 Uruguay’s representative underscored the resolution’s significance in redressing the problem of inequality between states:29 Hitherto the maintenance of collective security has been the affair of the great Powers, which arrogated to themselves the function of preserving peace in the Holy Alliance, in the Concert of Europe, in the Council of the League of Nations—​as permanent members, in the Security Council  .  .  .  Now, however, the smaller Powers are called upon to contribute, at the international level, to the maintenance of collective security.

Despite its origins in US Cold War strategy, then, the ‘Uniting for Peace’ resolution provided an opening for small and newly-​independent states to assert a greater role for themselves in international affairs. One of the principle aims of these new states was the further promotion of decolonization.

III.  The battle over self-​government A second axis of struggle in the early UN concerned the question of self-​ government by colonized peoples, central to the process of decolonization. The Charter affirmed the ‘equal rights and self-​determination of peoples’, and provided mechanisms to realize that principle.30 Chapters XII and XIII established an international trusteeship system, largely as a successor to the League of Nations’ mandate system, to be administered and supervised by a Trusteeship Council under 26 Statement of Mr Belaunde (Peru), GAOR 5th Session Plenary Meeting 302, UN Doc A/​PV.302 (1950) 343. 27 Statement of Mr Gutierrez (Cuba), GAOR 5th Session Plenary Meeting 301, UN Doc A/​PV.302 (1950) 324. 28 Statement of Mr Vittone (Argentina), GAOR 5th Session Plenary Meeting 301, UN Doc A/​PV.301 (1950) 336. 29 GAOR 5th Session Plenary Meeting 299, UN Doc A/​PV.299 (1950). 30 UN Charter, arts 2(1), 1(2).

The Battle and the United Nations  263 the authority of the UNGA, with the explicit objective of promoting the ‘progressive advancement’ of the inhabitants of trust territories ‘towards self-​government or independence’.31 In addition, Chapter XI comprised a ‘Declaration Regarding Non-​Self-​Governing Territories’ concerning those UN members that had responsibility for ‘the administration of territories whose peoples have not yet attained a full measure of self-​government’. Falling short of referring to the possibility of independence for the peoples concerned, Chapter XI committed administering powers to ensuring their just treatment, to developing ‘self-​government’, and assisting 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’, and to promoting ‘constructive measures of development’ in trust territories.32 These Charter provisions took on greater significance as the worldwide movement toward decolonization, which had gained impetus during the war, accelerated thereafter. Formerly colonized states already comprised a sizable majority of the UN’s founding members in 1945, and a steady trickle of Asian colonies achieved political independence in the immediate post-​war years. Not all of these new states joined the UN immediately, but by the end of 1955 the organization’s membership had grown from fifty-​one at its founding to seventy-​six. Moreover, the eagerness of these new states to promote decolonization elsewhere was supported, in rhetoric if not always in action, by the two great superpowers of the day.33 Chapter XI of the Charter turned out to be crucial in promoting decolonization. The result of strenuous efforts by African and Asian states at San Francisco to create a ‘strong system of international supervision over colonial administrations’,34 Chapter XI required administering powers to collect statistical and other technical information regarding the territories for which they were responsible, and to transmit that information to the Secretary-​General on a regular basis.35 A plain reading of the Charter might have suggested that the principal organs for dealing with decolonization were to be the Trusteeship Council and the Security Council.36 Yet, many more people lived in non-​self-​governing territories than in trust territories, and the preponderance of smaller, non-​colonial powers and previously colonized states in the UNGA made that organ a more natural site for assembling support for anti-​colonial resolutions.37 31 UN Charter, arts 75, 76(b). 32 UN Charter, art 73. 33 Raymond F Betts, Decolonization (Psychology Press 1998) 24. 34 Yassin El-​Ayouty, The United Nations and Decolonization (Martinus Nijhoff 1971) xxiii (hereafter El-​Ayouty, UN and Decolonization). 35 UN Charter, art 73(e). 36 UN Charter, chs XII and XIII; Ernst B Haas, ‘The Attempt to Terminate Colonialism: Acceptance of the United Nations Trusteeship System’ (1953) 7 International Organization 1. 37 In the interests of brevity, this chapter does not examine the well-​known disputes over the Trusteeship system—​in particular, its application to South West Africa/​Namibia—​which became an important focal

264  Guy Fiti Sinclair Indeed, the practice that built up on the basis of Chapter XI proved far more innovative than any comparable practice under Chapters XII and XIII. In December 1946, the Assembly set a date by which each of the colonial powers were to meet their obligations to transmit information to the Secretary-​General, and recommended that the latter summarize, analyse, and classify that information, share it with the UN’s specialized agencies, and convene an ad hoc Information Committee to advise the Assembly on steps to be taken.38 Several administering powers disputed the Information Committee’s constitutionality, and strongly resisted its creation.39 The Belgian government, in particular, developed a forceful argument (the so-​called ‘salt-​water thesis’) that the application of Chapter XI solely to overseas colonies and protectorates was discriminatory and erroneous; rather, its provisions properly applied to ‘backward ethnic groups’ everywhere, including ‘primitive’ racial, linguistic, and religious minorities located within African, Asian, and Latin American states.40 Nevertheless, the committee gradually acquired ‘new powers of examination of both the functioning and the basis of the colonial system’.41 These developments at once drew upon and reinforced the UN Secretariat’s expert authority. In practice, the Secretariat took responsibility for the day-​to-​day administration of issues raised by the Information Committee, and became a regular source of technical advice to many delegates.42 As the Committee’s work advanced, it frequently requested the Secretariat to prepare specialized papers on problems under consideration. Forming technical sub-​committees to prepare reports on a variety of matters, the Committee invited representatives of several specialized agencies to participate in its meetings and submit special studies on topics in their areas of expertise.43 These expansions of powers exercised by UN organs and agencies were understood to be justified by the goal of promoting self-​ government in colonial territories. Moreover, self-​government increasingly meant political independence. To countries in the Asian-​African bloc, it seemed obvious that the purpose of Chapter XI was to transform colonies into independent states. But for European metropolitan powers, the question of when a territory became self-​governing—​whether at the point of independence or earlier—​was a matter of

point for decolonization struggles. See generally John Dugard, The South West Africa/​Namibia Dispute (University of California Press 1973); Solomon Slonim, South West Africa and the United Nations: An International Mandate in Dispute (Johns Hopkins University Press 1973). On the role of the International Court of Justice in the South West Africa/​Namibia dispute, see Chapter 10 this volume. 38 UNGA Res 66 (I) (14 December 1946) UN Doc A/​RES/​66(I) paras 1–​6. 39 El-​Ayouty, UN and Decolonization (n 34) 70–​76. 40 Josef L Kunz, ‘Chapter XI of the United Nations Charter in Action’ (1954) 48 American Journal of International Law 103, 108–​09 (hereafter Kunz, ‘Chapter XI’). 41 El-​Ayouty, UN and Decolonization (n 34) 101. 42 Harold K Jacobson, ‘The United Nations and Colonialism:  A Tentative Appraisal’ (1962) 16 International Organization 37. 43 El-​Ayouty, UN and Decolonization (n 34) 101–​05.

The Battle and the United Nations  265 domestic jurisdiction shielded from intervention by any UN organ under Article 2(7) of the Charter.44 Consequently, the Information Committee became a site of ongoing struggle over how to determine whether a territory was non-​self-​governing, and therefore subject to the reporting obligations prescribed in Chapter XI.45 Indeed, the exercise of defining the qualifications for self-​government proved awkward. On the one hand, setting the bar too low meant that many territories would escape the Committee’s scrutiny. On the other hand, standards such as ‘complete freedom of the people of the territory to choose the form of government which they desire’, freedom from interference by other governments in a territory’s internal affairs, and ‘complete autonomy in respect of economic, social and cultural affairs’ seemed to set the bar too high even for many recognized sovereign states, and might result in colonies never meeting the conditions for independence.46 That struggle continued in a series of debates and landmark resolutions by the UNGA, including the landmark ‘Declaration on the Granting of Independence to Colonial Countries and Peoples’,47 and thereafter through the work of the ‘Committee of 24’ (Special Committee on Decolonization), which remains active today.

IV.  The battle over development The third axis of struggle in the UN system during the period of decolonization emerged from efforts to universalize a model of government shaped by the lessons of Keynesian economic theory and New Deal experimentalism.48 The UN Charter’s Preamble affirmed ‘faith in fundamental human rights’, the goal of ‘social progress and better standards of life in larger freedom’, and ‘the promotion of the economic and social advancement of all peoples’. More specifically, Chapter IX committed the UN to promote human rights and social and economic development, and provided for a range of specialized agencies to be brought into relationship with the organization to meet those ends.49 In addition, Chapter X created an Economic and Social Council (ECOSOC) with powers to coordinate the work of the specialized agencies;50 to study issues relating to ‘international economic, social, cultural,

44 Kunz, ‘Chapter XI’ (n 40) 107. 45 El-​Ayouty, UN and Decolonization (n 34) ch 5. 46 Clyde Eagleton, ‘Excesses of Self-​Determination’ (1953) 31 Foreign Affairs 592, 599–​600 (quoting from a report produced by a ‘Committee on Factors’, appointed by the UNGA). 47 UNGA Res A/​1514 (XV) (14 December 1960). 48 Anne-​Marie Burley, ‘Regulating the World: Multilateralism, International Law, and the Projection of the New Deal Regulatory State’ in John Gerard Ruggie (ed), Multilateralism Matters (Columbia University Press 1993) 126; Elizabeth Borgwardt, A New Deal for the World (Belknap Press of Harvard University Press 2005). 49 UN Charter, art 55. 50 UN Charter, art 55.

266  Guy Fiti Sinclair educational, health, and related matters’; and to make recommendations concerning any such matters to the UNGA and relevant specialized agencies.51 These values informed the emerging science of development economics, which took decolonized states as its primary objects. As a leading UN economist of the time put it, there was a strong assumption that ‘the same principles of planning, macroeconomic management of the economy by governments and mobilization of latent resources based on Keynesian principles, were also applicable to the problems of developing countries’.52 Moreover, concern for universal, state-​guaranteed social welfare took on an increasingly tangible institutional form during the UN’s first decade. In December 1948, the UNGA passed two landmark resolutions that prepared the ground for a much-​expanded approach to international technical assistance for economic development. The first called upon ECOSOC and the specialized agencies to ‘give further and urgent consideration to the whole problem of the economic development of under-​developed countries in all its aspects’, while the second appropriated funds to enable the Secretary-​General to provide technical assistance to governments in connection with their economic development programs.53 That same month saw the enactment of two foundational human rights instruments, the Genocide Convention and the Universal Declaration of Human Rights.54 Within the next couple of years, the UNGA had established an Expanded Program of Technical Assistance (EPTA), comprising the UN and seven specialized agencies, and a Technical Assistance Board (TAB) to coordinate their work.55 That program extended to ‘non-​self-​governing territories’ also:  the competence of the Information Committee that had been formed to ensure compliance with Chapter XI was extended to deal with issues of equal treatment in education, eradication of illiteracy, and technical assistance, and the Committee demanded increasingly detailed reports from administering powers on a growing list of topics, including questions of social policy, labour legislation, social security, housing, education, public health, human rights, and racial discrimination.56 The new states’ drive to achieve economic decolonization inspired the UNGA’s designation of the 1960s as the UN Development Decade,57 as well as a proliferation 51 UN Charter, arts 63, 64, 62(1), 62(2). 52 Cited in Olav Stokke, The UN and Development (Indiana University Press 2009) 594 (hereafter Stokke, UN and Development). 53 UNGA Res 198 (III) (4 December 1948) UN Doc A/​RES/​198(III) para 3; UNGA Res 200 (III) (4 December 1948) UN Doc A/​RES/​200(III). 54 Convention on the Prevention and Punishment of the Crime of Genocide (adopted 9 December 1948, entered into force 12 January 1951) 78 UNTS 277; UNGA Res 217 A (III) (10 December 1948) UN Doc A/​RES/​3/​217(III). 55 Stokke, UN and Development (n 52) 46–​50. 56 United Nations, ‘Information on Non-​Self-​Governing Territories Transmitted under Article 73e of United Nations Charter’ in United Nations Year Book (United Nations Department of Public Information 1960) 502, 515. 57 UNGA Res 1715 (XVI) (19 December 1961) UN Doc A/​RES/​1715(XVI).

The Battle and the United Nations  267 of new development-​oriented organizations, agencies, programmes, and funds. Some of these were independent of the UN, such as the African Development Bank (established in 1964) and the Asian Development Bank (1966). Others were more or less autonomous specialized agencies, such as the International Bank for Reconstruction and Development and International Development Association (together, the World Bank). But many were part of the UN family, including the UN Special Fund (1958), the World Food Program (1963), UN Conference on Trade and Development (1964), the UN Institute for Training and Research (1965), the UN Development Program (1965, merging the EPTA with the Special Fund), the UN Industrial Development Organization (1966), the UN Capital Development Fund (1966), and the UN Fund for Population Activities (1969).58 To many in the West, technical assistance was deeply connected to the UN’s primary purpose of maintaining international peace and security. In the first of its 1948 resolutions on economic development, the UNGA noted that ‘the low standards of living existing in Member States’ had ‘bad economic and social effects in the countries directly concerned and on the world as a whole’, and created ‘conditions of instability’ that were ‘prejudicial to the maintenance of peaceful and friendly relations among nations and to the development of conditions of economic and social progress’.59 In his inauguration speech in January 1949, US President Harry Truman proposed a worldwide programme of development through technical assistance, and invited other countries to ‘pool their technological resources’ in ‘a cooperative enterprise in which all nations work together through the [UN] and its specialized agencies wherever practicable’.60 Here, too, Truman connected the goals of ‘peace, plenty, and freedom’, offering to make his country’s ‘imponderable resources in technical knowledge’ available to achieve ‘[g]‌reater production’ for the ‘peace-​loving’ and ‘free peoples of the world’.61 For the UN, however, the principle of non-​intervention in the domestic jurisdiction of states was crucially important.62 UN technical assistance took four main forms: advice on both general and specific economic development issues; training fellowships for experts from ‘under-​developed’ countries; visits by outside experts to instruct technicians and help organize technical institutions in such countries; and assistance in obtaining technical personnel, equipment, supplies, and other services appropriate for the promotion of economic development, including information exchanges on particular technical problems.63 Technical assistance

58 On the first UN Development Decade, see Stokke, UN and Development (n 52) 137–​56. 59 UNGA Res 198 (III) para 1. 60 Cited in Stokke, UN and Development (n 52) 49. 61 ibid. 62 UN Charter, art 2(7). 63 UN Department of Economic Affairs, Technical Assistance for Economic Development Available through the United Nations and the Specialized Agencies (UN Publications 1948).

268  Guy Fiti Sinclair was only to be provided to a government at its request, was to be of a kind determined by that government and designed to meet its needs, and was to be neither ‘a means of foreign economic and political interference in the internal affairs of the country concerned’ nor ‘accompanied by any considerations of a political nature’.64 Balancing the competing concerns for international security and non-​intervention in domestic jurisdictions would prove very difficult, however, as became clear in the UN’s experience with peacekeeping.

V.  A new field of battle? Peacekeeping and decolonization This chapter has examined the intimate connections between institutional innovations in the early UN—​sovereign equality, self-​government, and welfare provision—​and decolonization, including determination of the forms to be taken and roles to be played in the international system by decolonized states. This part of the chapter argues these innovations were merged in a new institutional form which aimed simultaneously at facilitating the process of decolonization, enhancing the role of small states in the UN’s peace and security functions, and constructing modern states on a broadly Western model. That new form—​the peacekeeping operation—​was the most significant innovation in the UN during its first two decades, with perhaps the most far-​reaching implications for the process of decolonization at that time and since.65 The remainder of this chapter focuses on the two most important early peacekeeping operations. The organization had already accumulated some limited experience in the deployment of unarmed truce supervisors after the establishment of the UN Truce Supervision Organization (UNTSO) in 1948, and the formation of a UN Military Observer Group in India and Pakistan the following year. But the first armed UN peacekeeping operations were created in 1956 and 1960, in response to the Suez and Congo crises, respectively. It is highly significant that all of these operations involved situations arising out of decolonization at the end of European empires. Yet the invention of peacekeeping did not resolve the battle over international law within the UN. To the contrary, peacekeeping itself became a new terrain of battle for international, as the form, functions, and purposes of peacekeeping themselves became objects of contention and struggle.

64 UNGA Res 200 (III) (4 December 1948) paras 4(a), (b), (d). 65 Though beyond the timeframe covered by this volume, it is significant to consider, for example, the role of peacekeeping operations such as the UN Transition Assistance Group (UNTAG, 1989–​1990) and the UN Transitional Administration in East Timor (UNTAET, 1999–​2002) in facilitating the transitions to independence of Namibia and East Timor, respectively.

The Battle and the United Nations  269

A.  United Nations Emergency Force The Suez crisis directly implicated two permanent members of the Security Council. It arose against the backdrop of a long history of European interventions in Egypt, public opinion that was increasingly hostile to the presence of British troops in the area of the Canal, growing antagonism between Egypt and Israel, and deteriorating relations between Egypt and the West. Following Egypt’s declaration as a republic after the ‘Free Officers’ military coup of July 1952, the new government signed heads of agreement under which all British troops would leave Egypt by June 1956. On 26 July 1956, the Egyptian leader, Gamal Abdel Nasser, announced that he would nationalize the Suez Canal Company. The situation was referred to the Secretary-​General and Security Council, but before any settlement could be negotiated, Israel, France, and the UK secretly agreed to launch a concerted attack on Egypt. Israeli forces took offensive action against Egypt on 29 October. The next day France and the UK demanded that both Israel and Egypt cease hostilities and withdraw from the Canal. When Egypt failed to meet that ultimatum, British and French forces launched airstrikes against Egypt on 31 October.66 Against the opposition of the US government, France and the UK both used their veto power to block draft Council resolutions that called upon Israel to withdraw its armed forces. The matter was then transferred to an emergency special session of the UNGA —​the first ever called under the ‘Uniting for Peace’ resolution67—​ which requested the Secretary-​General to negotiate the implementation of the ceasefire and ‘obtain compliance of the withdrawal of forces behind the armistice lines’.68 While the Assembly was still in emergency session, Hammarskjöld produced two reports, prepared with the assistance of the Canadian representative to the UN Lester Pearson, which set out plans to establish an emergency force.69 Those plans were quickly approved,70 and, with a relatively small force, the UN Emergency Force (UNEF) remained in place along the border between Israel and Egypt until just prior to the Six-​Day War in June 1967. Debates in the UNGA regarding the crisis reflected concerns about both decolonization and the sovereign equality of UN members. In his opening statement, the Egyptian representative said that his country had been ‘subjected to bloody 66 Anthony Gorst and Lewis Johnman, The Suez Crisis (Routledge 1997); David Carlton, Britain and the Suez Crisis (Blackwell 1988); Keith Kyle, Suez (Tauris & Company 2003). 67 Statement of Mr Dulles (USA), GAOR 1st Emergency Session Plenary Meeting 561, UN Doc A/​ PV.561 (1956) 10. 68 UNGA Res 999 (ES-​I) (4 November 1956) UN Doc A/​RES/​999(ES-​I). 69 Dag Hammarskjöld, ‘First Report on the Plan for an Emergency International United Nations Force’ (4 November 1956) in Andrew W Cordier and Wilder Foote (eds), Public Papers, vol III, 334, 334–​335; Dag Hammarskjöld, ‘Second and Final Report on the Plan for an Emergency International United Nations Force’ (6 November 1956) in Cordier and Foote, Public Papers of the Secretaries-​General of the United Nations, vol III (Columbia University Press 1973) 344. 70 UNGA Res 1000 (ES-​I) (5 November 1956) UN Doc A/​RES/​1000(ES-​I); UNGA Res 1001 (ES-​I) (7 November 1956) UN Doc A/​RES/​1001(ES-​I).

270  Guy Fiti Sinclair aggression’, and that Israel, the UK, and France had ‘conspired together to commit this act of war’.71 Describing their actions as violations of the Constantinople Convention of 1888, which governed the use of the Suez Canal and gave Egypt the sole right to defend it,72 he complained: ‘We thought the Charter had put an end to the reign of force and that the era of the ultimatum and the diktat, of bitter memory, had vanished with the signing of the Charter at San Francisco.’73 In statements invoking their shared history of colonization, several other representatives likewise condemned the actions of the UK and France.74 Ceylon’s representative explicitly linked the argument against colonialism with the UN’s role in protecting the sovereignty of the new states:75 In the view of many responsible nations, the action of the United Kingdom and France is a continuation of the tradition of colonialism. . . . The nations of resurgent Asia and Africa are determined to exercise their sovereign rights in conformity with the principles of the United Nation Charter. It is naïve to assume that this process of change can be arrested by the crushing of a leader or of leaders. The spirit of Asia and Africa can never be crushed.

Speakers on both sides of the debate pointedly criticized the abuse by great powers of their responsibilities as permanent members of the Security Council. The UK representative claimed that his government had acted only because the USSR’s persistent ‘cynical misuse’ of its veto power, an ‘irresponsible exploitation of the privileges of a great Power’, had meant that ‘the world has not been able to rely on the [UN] for the collective security which the Organization was designed to provide’.76 However, several smaller states expressed outrage that, by taking military action against Egypt, two permanent members of the Council had seriously failed to meet their responsibilities to preserve international peace and security. Ecuador’s representative lamented that ‘two great nations . . . who gave us our civilization, and who have a moral obligation to continue that great tradition, should have been the ones to violate a sacred undertaking’. The actions of France and the UK were ‘doubly immoral’, he said, not only because the Charter had been violated, but also because ‘the violation has been committed by two great Powers, two Powers in which we have placed all our confidence as guarantors of world peace and security and which, for that very reason, enjoy the right of veto’.77

71 GAOR 1st Emergency Session Plenary Meeting 561, UN Doc A/​PV.561 (1956) 2, 3. 72 Jose A Obieta, The International Status of the Suez Canal (Martinus Nijhoff 1960) ch 4. 73 Statement of Mr Loutfi (Egypt), GAOR 1st Emergency Session Plenary Meeting 561, UN Doc A/​ PV.561 (1956) 2, 3. 74 See GAOR 1st Emergency Session Plenary Meeting 562, UN Doc A/​PV.562 (1956). 75 GAOR 1st Emergency Session Plenary Meeting 561, UN Doc A/​PV.561 (1956) 4. 76 ibid 6, 90. 77 GAOR 1st Emergency Session Plenary Meeting 562, UN Doc A/​PV.562 (1956) 26.

The Battle and the United Nations  271 UNEF thus provided an opportunity to advance both the goal of decolonization and the role of new states in the organization. The plans for UNEF reflected a desire to accommodate small states’ concerns about the direct involvement of European great powers in the crisis. Officers for the force were recruited from countries other than the permanent members of the Security Council.78 An advisory committee established by the UNGA to plan for the force was composed of representatives from small and medium-​sized states:  Brazil, Canada, Ceylon, Colombia, India, Norway, and Pakistan.79 Above all, the gathering of UN-​led forces in the Sinai was powerfully symbolic of the organization’s commitment to protect its smaller and more vulnerable members against domination by would-​be imperialist powers.80

B.  Opération des Nations unies au Congo The exceptionally brutal colonial history of the Congo—​first as the ‘Congo Free State’ under the personal control of King Léopold and then later as a formal colonial territory of Belgium—​is well known.81 After doing next to nothing to prepare the country for self-​government, a series of riots in the capital in January 1959 and further disturbances throughout the year led the Belgian government to fast-​ track independence to 30 June 1960.82 Soon after that event, however, a series of mutinies broke out in the Congolese army, reports of violence prompted a mass flight of Belgians from the country, and the Belgian government deployed some 10,000 troops to the Congo to protect European residents and property. On 11 July, the province of Katanga declared independence with the support of Belgian troops stationed there. The following day, the Congo’s new President and Prime Minister, Joseph Kasavubu and Patrice Lumumba, cabled Dag Hammarskjöld to make a formal request for military assistance.83 The Secretary-​General brought the situation to the Security Council’s attention and recommended the establishment of a force along similar lines to UNEF. On 14 July 1960, the Security Council authorized Hammarskjöld to provide the Congo with military assistance, and called on Belgium to withdraw its troops from the country.84 The first UN troops began to arrive the next day. By the end of July, the UN military force in the Congo had peaked at almost 20,000 troops. 78 UNGA Res 1000 (ES-​I) (5 November 1956). 79 ibid. 80 Richard I Miller, Dag Hammarskjold and Crisis Diplomacy (Oceana 1961) 116–​19. 81 Martti Koskenniemi, The Gentle Civilizer of Nations (CUP 2001) 155–​70; Adam Hochschild, King Leopold’s Ghost (Houghton Mifflin Harcourt 1999); Georges Nzongola-​Ntalaja, The Congo from Leopold to Kabila (Zed Books 2002) ch 1 (hereafter Nzongola-​Ntalaja, Congo from Leopold to Kabila). 82 Crawford Young, Politics in the Congo (Princeton University Press 1965) 281–​90; Nzongola-​ Ntalaja, Congo from Leopold to Kabila (n 81) ch 2. 83 UN Secretary General, ‘Cable to the Secretary-​General’ (13 July 1960) UN Doc S/​4382. 84 UNSC Res 143 (14 July 1960) UN Doc S/​4387.

272  Guy Fiti Sinclair The mission of the Opération des Nations unies au Congo (ONUC) quickly became to support the process of decolonization and enforce the territorial integrity of the new state. Manoeuvring between several opposing political forces, and seeking to avert escalation of the Cold War in Africa, Hammarskjöld carefully avoided characterizing the situation in the Congo as illegal aggression, Belgian colonialism, or purely internal disorder. Instead, he reported to the Security Council that the difficulties that had developed in the Congo were ‘connected with the maintenance of order in the country and the protection of life’, and had ‘an important international bearing’ as they were ‘of a nature that cannot be disregarded by other countries’.85 Without quoting from the Kasavubu–​Lumumba cables or citing the grounds upon which they requested assistance, he focused on the specific actions the UN would take, basing his proposals on the UNEF model in terms that would not raise the objections of either the Soviet or the African and Asian members of the Security Council. As a result, the Council’s resolution of 14 July 1960 simply called upon the government of Belgium ‘to withdraw its troops from the territory of the Republic of the Congo’ and authorized the Secretary-​General:86 . . . to take the necessary steps, in consultation with the Government of the Congo, to provide the Government with such military assistance, as may be necessary, until, through the efforts of the Congolese Government with the technical assistance of the United Nations, the national security forces may be able, in the opinion of the Government, to meet fully their tasks . . .

The secessions declared in Katanga and elsewhere in the Congo provided opportunities for the UN political organs to affirm the unity and territorial integrity of the Congolese state. In a resolution passed early in the operation, the Security Council noted it had ‘recommended the admission of the Republic of the Congo to membership in the United Nations as a unit’, while authorizing the Secretary-​General to ‘take all necessary action’ to effect the speedy withdrawal of Belgian troops. The resolution further requested all states ‘to refrain from any action . . . which might undermine the territorial integrity and the political independence of the Congo’.87 Finally, when it came to authorize the use of force against foreign military personnel and mercenaries in Katanga, the Council explicitly rejected the claim that Katanga was ‘a sovereign independent nation’, affirming its ‘full and firm support for the Central Government of the Congo’, and its ‘determination to assist that Government . . . to maintain . . . national integrity’.88 In enforcing these edicts, ONUC clearly demonstrated its support for a united Congo, maintained within



85

SCOR 15th Session Meeting 873 A/​4383 (1960), 3 (para 19). UNSC Res 143 (1960) UN S/​4387 paras 1–​2. 87 UNSC Res 145 (22 July 1960) UN Doc S/​4405 (emphasis added). 88 UNSC Res 169 (24 November 1961) UN Doc S/​5002, Preamble, paras 8–​9. 86

The Battle and the United Nations  273 the same territorial boundaries as its colonial predecessor, under the authority of a single, central government. In other material and symbolic ways, Hammarskjöld indicated his support for decolonization to the growing ‘Afro-​Asian’ contingent in the UN. Expecting difficulties in the transition to independence, Hammarskjöld had asked Ralph Bunche (1904–​71) to represent the UN at the Congo’s independence ceremonies, and to remain for some time afterwards to offer any assistance that might be required.89 An African-​American who had served in the Roosevelt administration and who had worked to strengthen the UN machinery for decolonization in its earliest years, Bunche had mediated the armistice between Israel and the Arab states in 1947–​1949, for which he had been awarded the Nobel Peace Prize in 1950, and was one of the most respected international figures of the time.90 After ONUC was established, Bunche became Hammarskjöld’s first Special Representative and Commander of the UN Force in the Congo; his presence alone would have clearly signalled the Secretary-​General’s sympathy for an independent Congo. The appointment of an Indian diplomat, Rajeshwar Dayal (1909–​1999), as Bunche’s successor, and of several Asian and African officials to Hammarskjöld’s closest circle of advisors, conveyed a similar message.91 Moreover, in determining the composition of the ONUC Force, Hammarskjöld arranged for assistance to come in the first instance from a ‘hard core’ of the Congo’s ‘sister African nations, as an act of African solidarity’.92 For the Secretary-​General, this was primarily a means of framing the operation so as to exclude the big powers and keep the Cold War out of Africa. But he also knew that it would be agreeable to pan-​Africanist leaders such as Ghana’s President Nkrumah, who wished to bolster the forces of nationalism in other African countries.93 The vast majority of troops for the Force were drawn from newly-​independent states such as Ghana, Tunisia, Morocco, and Guinea.94 The Asian and African member states also played a crucial role at the height of the Congo crisis, after Lumumba and Kasavubu each announced the dismissal of the other. With the Security Council deadlocked, another emergency session of the

89 Ralph J Bunche, ‘The United Nations Operation in the Congo’ in Andrew W Cordier and Wilder Foote (eds), The Quest for Peace (Columbia University Press 1965) 119, 123. 90 Robert A Hill and Edmond J Keller (eds), Trustee for the Human Community (Ohio University Press 2010). 91 Rajeshwar Dayal, Mission for Hammarskjold (OUP 1976); Conor Cruise O’Brien, To Katanga and Back (Hutchinson 1962) 51, 53, 56–​57. 92 Dag Hammarskjöld, ‘First Report by the Secretary-​General on the Implementation of Security Council Resolution S/​4387 of 14 July 1960’ (18 July 1960) UN Doc S/​4389. 93 Jitendra Mohan, ‘Ghana, the Congo, and the United Nations’ (1969) 7 The Journal of Modern African Studies 369, 375–​76 (hereafter Mohan, ‘Ghana, the Congo, and the United Nations’). 94 ‘SG’s First Report’. See also Rajeshwar Dayal, ‘First Progress Report to the Secretary-​General from His Special Representative in the Congo, Ambassador Rajeshwar Dayal’ (21 September 1960) UN Doc S/​4531 (Dayal, ‘First Report’) Annex 1: 6–​7.

274  Guy Fiti Sinclair UNGA was convened under the ‘Uniting for Peace’ resolution.95 The Assembly’s resolution, sponsored by nine African and eight Asian members, appealed to all Congolese to seek resolution of their conflicts ‘with the assistance, as appropriate, of Asian and African representatives appointed by the Advisory Committee on the Congo, in consultation with the Secretary-​General, for the purpose of conciliation’.96 Two weeks later in the UNGA, responding to Soviet criticism that he had taken sides against Lumumba, Hammarskjöld appealed directly to ‘[l]‌et the countries who have liberated themselves in the last fifteen years speak for themselves’:97 It is not the Soviet Union or, indeed, any other big Powers who need the United Nations for their protection; it is all the others. In this sense, the Organization is first of all their Organization, and I deeply believe in the wisdom with which they will be able to use it and guide it. I shall remain in my post during the term of my office as a servant of the Organization in the interests of all those other nations, as long as they wish me to do so.

To the African and Asian states in the UN, whose representatives enthusiastically applauded Hammarskjöld’s speech, his ability and willingness to stand up to powerful state interests alone provided sufficient justification for the exercise of UN peacekeeping powers. Finally, ONUC differed from UNEF in the extent to which it incorporated civilian state-​building efforts, particularly concerned with the provision of social welfare. The specialized agencies had had very limited involvement in the Congo before independence, but Lumumba’s and Kasavubu’s request for assistance provided the best opportunity yet for the UN to offer a comprehensive program of technical assistance to a single country.98 Under ONUC’s organizational umbrella, a corps of some 2,000 experts and technicians, together with funds, training programmes, and equipment provided assistance in myriad fields of administration and government:  law-​and constitution-​making, civil administration, civilian policing, communications, education, finance, foreign trade, medical and public health services, agriculture, food distribution, civil engineering, and civil aviation.99 By the end of 1960, the International Telecommunications Union’s and World Health Organization’s programmes in the Congo were the most substantial administered 95 Georges Abi-​Saab, The United Nations Operation in the Congo, 1960–​1964 (OUP 1978) 72–​73 (hereafter Abi-​Saab, UN Operation in the Congo). 96 UNGA Res 1474 (ES-​IV) (20 September 1960) UN Doc A/​RES/​1474(ES-​UV) para 3. 97 Statement of Secretary-​General, GAOR 15th Session Plenary Meeting 883, UN Doc A/​PV.883 (1960) 331 (para 8), 332 (para 11). 98 ‘United Nations Technical Assistance in the Congo’ (undated, pre-​1960) UNA S-​0752-​0040-​06. 99 Arthur H House, The U.N. in the Congo (University Press of America 1978) (hereafter House, UN in the Congo); Harold K Jacobson, ‘ONUC’s Civilian Operations:  State-​Preserving and State-​ Building’ (1964) 17 World Politics 75; Carsten Stahn, The Law and Practice of International Territorial Administration (CUP 2008) 236–​46.

The Battle and the United Nations  275 by either in any country, and remained so until 1966.100 Even in 1963, ONUC’s civilian operation was still ‘the largest programme of technical assistance for any one country in the history of the World Organization’,101 employing 1,431 full-​time specialists at the end of the year.102 Hammarskjöld designed ONUC’s civilian operation as a single, coherent command structure, ultimately reporting to himself. In order to achieve the desired level of integration, he appointed a group of experts who would serve ‘on a level of higher administrative responsibility’ within government ministries. The group included consultants that could cover the fields of agriculture, communications, education, finance, foreign trade, health, instruction (national security forces), labour market, judiciary, natural resources and industry, and public administration.103 Each expert was appointed first as a ‘local representative’ of the relevant specialized agency, thereby remaining in ‘the proper relationship to his agency and under its authority’, and then as a member of the Consultative Group. Despite never receiving formal approval, the scheme effectively placed much of the Congo under UN administration and subordinated the activities of all specialized agencies to the overall authority of the Secretary-​General.104 Placed in these senior roles, UN-​ appointed experts were able to act as ‘effectively heads of departments with immediate access to their Ministers and authorized to act in their absence’.105 It was perhaps unavoidable that many of the reform programmes conducted by the specialized agencies in the Congo would be burdened with assumptions, attitudes, and practices inherited from the colonial past. The immediate post-​colonial circumstances of the operation also contributed to the deterioration of relations between Hammarskjöld and Lumumba, who disagreed over the interpretation of Security Council resolutions and actions taken by the Congolese Army to suppress secessionists.106 And there is considerable evidence that Hammarskjöld and other UN officials secretly sided with Kasavubu against Lumumba, whom they regarded as unstable and susceptible to Soviet influence, and were not above using their connections to US government officials to achieve ends that they believed were for the best for the people of the Congo.107 Under pressure of emergency conditions, those 100 Harold K Jacobson, ‘New States and Functional International Organisations:  A Preliminary Report’ in Robert W Cox (ed), The Politics of International Organizations (Praeger 1969) 74 (ch 3), 87 (hereafter Jacobson, ‘New States’). 101 United Nations Operation in the Congo, ‘United Nations Operation in the Congo: Report on Civilian Operations in 1963’ (30 April 1964) UNA LEO/​PROG/​3, I. 102 House, UN in the Congo (n 99) 189. 103 Dag Hammarskjöld, ‘Second Report by the Secretary-​General on the Implementation of Security Council Resolutions’ (11 August 1960) UN Doc S/​4417/​Add.5. 104 United Nations Association, ‘Cable B336 from SecGen to Cordier’ (date illegible) UNA S-​0845-​0006-​06-​00001. 105 United Nations Association, ‘A Tentative Approach to Civilian Affairs–​Draft’ (23 July 1960) UNA S-​0845-​0006-​06-​00001. 106 Abi-​Saab, UN Operation in the Congo (n 95) 37–​44. 107 Alan James, Britain and the Congo Crisis: 1960 -​1963 (Palgrave Macmillan 1996) 66–​67, 71; David N Gibbs, ‘The United Nations, International Peacekeeping and the Question of “Impartiality”: Revisiting the Congo Operation of 1960’ (2000) 38 The Journal of Modern African Studies 359, 369–​73.

276  Guy Fiti Sinclair ends also required taking decisions in the place of democratically elected leaders and Congolese officials.

VI. Conclusion This chapter has argued that decolonization transformed the UN during its first two decades, as that organization focused its attention on facilitating the passage to independence by a growing number of previously colonised states. It has shown how that transformation occurred as the result of a series of struggles, played out in and through the instrumentalities of the UN, and drawing upon its institutional and normative resources, resulted ultimately in the invention of the peacekeeping operation as a new institutional form. Those struggles led to a set of ambiguous outcomes, especially as a consequence of the peacekeeping operation in the Congo. On the one hand, ONUC galvanized the efforts of the ‘Afro-​Asian’ states to promote decolonization through the UN, provided opportunities for those states to play a more prominent role in the UN’s decision-​making processes, and stimulated a further series of activities, particularly in the area of development. As Harold Jacobson observed, the Congo experience ‘brought the problems of that state, and by extension those of Africa . . . dramatically to the attention’ of international organizations, which were then forced to reconsider their activities on that continent.108 In December 1961, the UNGA launched the first Development Decade, and subsequent years saw the creation of an array of new agencies, funds, and programmes focused on development, as we have seen. On the other hand, ONUC highlighted the possibility of decolonization being subverted, exposed fissures in the non-​aligned movement, and revealed the limits of the modernizing, welfare-​oriented project of state building in the global South. In the course of the Congo crisis, a split emerged between those states that favoured a moderate approach and supported the work of the UN (the ‘Brazzaville group’) and those that advocated a more radical stance (the ‘Casablanca group’), with an overall ‘deflationary effect’ on efforts toward African unity.109 The Congo crisis also marked a pivot in the Soviet Union’s policy towards Africa, a loss of confidence in the utility of the ‘socialist model of development’ in promoting Soviet influence in the decolonized world, and a turn towards more militarized modes of engagement in the Cold War.110 And it coincided with a shift in Western development thinking 108 Jacobson, ‘New States’ (n 100) 87. 109 Mohan, ‘Ghana, the Congo, and the UN’ (n 93) 370. See also Alanna O’Malley, ‘Ghana, India, and the Transnational Dynamics of the Congo Crisis at the United Nations, 1960–​1961’ (2015) 37 International History Review 970, 982–​84. 110 Alessandro Iandolo, ‘The Rise and Fall of the “Soviet Model of Development” in West Africa, 1957–​1964’ (2012) 12 Cold War History 683.

The Battle and the United Nations  277 towards greater concern with the maintenance of political order and tolerance toward counter-​revolutionary, authoritarian forms of government in the decolonized world.111 Since the period of decolonization, peacekeeping and the symbolism of the ‘blue helmets’ have become intimately inseparable from the public image of the UN. Moreover, UN peace operations have expanded dramatically both in number and in scope, particularly in Africa, since the late 1980s. Peace operations today are engaged in a wide range of complex tasks, including state-​building, judicial reform, social and economic development, human rights monitoring, security sector reform, and disarmament. After being considered for years a mere ‘artefact of African and global circumstances that belonged essentially to the early 1960s’, ONUC is now regarded as ‘in many respects a prototype for future UN interventions in sub-​Saharan Africa’.112 In this sense, the battles within the UN which gave birth to peacekeeping during the period of decolonization remain at the conflicted heart of that endeavour.

111 Colin Leys, The Rise & Fall of Development Theory (Indian University Press 1996) ch 3 (on ‘Samuel Huntington & the End of Classical Modernization Theory’). 112 Norrie MacQueen, United Nations Peacekeeping in Africa since 1960 (Longman 2002) 59.

12

The World Bank in the Battles of  the ‘Decolonization Era’ Philipp Dann

I.  Introduction Today, it seems both easy and difficult to write the history of the World Bank in the 1950s and 1960s. On one hand, major works on this history have been published in the past twenty years; the Bank is the object of various critical and comprehensive accounts.1 On the other hand, however, the picture that has emerged seems somewhat fixed, showing the Bank as the perfect villain, a posterchild of managerialism, liberal legal expansionism, Western-​centric neo-​liberalism. The Bank features almost like a magician exemplifying, if not driving, all these trends. But this picture is in parts shaped by the Bank of the 1980s, 1990s, and 2000s, by the neo-​liberal era, and by its effects on the global order. The story of the World Bank, the development system and the battle over financial support for the ‘newly independent states’ in the 1950s and 1960s is more ambivalent—​and full of tragic turns. It is less black and white, less like the story of concessions, corporations or investment law, where Northern governments more brazenly blocked Southern demands or refused interaction.2 With regard to the history of the Bank, much of what might have been perceived as victories of the third world (TW) governments at the time, turned into ambivalence and problems: With the International Development Association (IDA) a new branch of the Bank was created and the Bank turned into a development agency initially against strong Western resistance—​but power in the Bank was not shared and the financial engagement became increasingly linked to substantive influence, foreshadowing 1 Devesh Kapur, John P Lewis and Richard Webb, The World Bank: Its First Half Century, Vol 1: History (The Brookings Institution 1997) (hereafter Kapur, World Bank); Sundhya Pahuja, Decolonising International Law (CUP 2013) (hereafter Pahuja, Decolonising International Law); Balakrishnan Rajagopal, International Law from Below (CUP 2003) (hereafter Rajagopal, International Law); Gilbert Rist, The History of Development (Zed Books 2014); Bret Benjamin, Invested Interests: Capital, Culture and the World Bank (University of Minnesota Press 2007) (hereafter Benjamin, Invested Interests); Philipp Dann, The Law of Development Cooperation (CUP 2013) (hereafter Dann, Law of Development Cooperation); Eric Helleiner, Forgotten Foundations of Bretton Woods (Cornell University Press 2014); Guy F Sinclair, To Reform the World:  International Organizations and the Making of Modern States (OUP 2017). 2 See Craven, Brunner, Sornaraja, Pahuja/​Saunders, all in this volume. Philipp Dann, The World Bank in the Battles of the ‘Decolonization Era’ In: The Battle for International Law: South-North Perspectives on the Decolonization Era. Edited by: Jochen von Bernstorff and Philipp Dann, Oxford University Press (2019). © The Several Contributors. DOI: 10.1093/oso/9780198849636.003.0013

The World Bank in the ‘Decolonization Era’  279 conditionality. An entire institutional ecosystem was built around the demands of TW governments—​but it was also fragmented, over time impeded synergies, and lacked funding. The concept of ‘development’ was planted at the centre of thinking, which was partly a recognition of Southern concerns in law and institutions—​but also initiated the othering mechanism of the ‘development’ paradigm, which keeps TW peoples in Chakrabarty’s ‘waiting room of history’. Ultimately, a certain dynamic and strategy of the Bank and Northern governments comes to the fore when looking at those years that is reminiscent of classic hegemonic moves. Southern demands here were not simply rejected or blocked, but rather redirected, diverted, and ultimately subverted. Almost like in the far-​ Eastern fighting technique of Aikido, where the energy and dynamic of an attack is not absorbed but returned and redirected against the attacker, the demands of the TW here were responded to by creating the IDA, thereby transforming the World Bank and turning it into the agency that later became ‘the symbolic antagonist for a vast array of social movements’.3 The creation of the IDA in 1960 was a central turning point in the larger battle about financial support for the ‘newly independent states’—​and ultimately appears like a tactical move of Northern governments in the Bank to integrate certain claims of Southern governments just to cap further, more disruptive demands. This chapter looks at this Aikido-​move of Northern governments and the larger battle from three perspectives. First, Section II describes the political battle to institutionalize more development financing, placing the evolution of the Bank and in particular the creation of the IDA in the broader context of the battle between North and South over institutional structures of redistribution and financial support. Section III then looks at the discursive turn and rhetorical recognition but also placation and pacification of the South undertaken by the Bank mainly in the 1960s. Finally, Section IV investigates the role of institutional law in this battle and argue that law played an important role in deflecting Southern demands and actually shielding the Bank even more.

II.  The battle for concessional funding and the creation of the IDA In most new states, the question of economic independence arose at the moment of formal political independence. Most were in dire straits and in urgent need of economic progress. Hence, as greater numbers of colonies gained independence in the late 1940s and early 1950s, the need for financial support was discussed. In fact, it has been observed that ‘from 1950 until at least 1960, ‘financing of economic



3 Benjamin, Invested Interests (n 1) 112.

280  Philipp Dann development’ was the ‘most passionately debated economic issue at UN’.4 It was consensus that trade would be the most important way for the new states to earn money.5 But it was also clear that in order to reach sustainable trading relations and produce more than raw materials, a process of industrialization was necessary, for which investments and funds were needed. At the same time, it was understood that TW countries were not able to receive loans on normal market conditions; instead, concessional funding (in particular, loans with lower interest rates and longer payback times) was needed. The main issue was from whom such concessional funding should come.6 Economic experts and TW countries (led in particular by Chile, India, and Yugoslavia) in the United Nations (UN) argued for the creation of an international multilateral agency that would provide concessional funding. The concrete idea was that a Special UN Fund for Economic Development (SUNFED) should be created.7 However, Western countries (led by the United States (US) and the United Kingdom (UK)) strenuously blocked these efforts. They argued that the UN should provide only technical assistance and hence supported the EPTA, but saw no role for the UN in providing capital support. They especially voted against all proposals for SUNFED. Soon after, the International Bank for Reconstruction and Development (IBRD) (also known as the World Bank, or Bank) became an inflammatory topic in the discussion, as many in the TW demanded it should take on a broader role.8 The Bank and its Western allies, however, thought nothing of this demand. Created in the context of the Anglo-​American attempt to create an international institutional system that would further their interests in the world after the Second World War, its mandate and geopolitical role in the eyes of its main shareholders (ie, Western founding member states) was to provide funding for the reconstruction of war-​ torn countries of the North, not the South. Neither was ‘development’ conceptually on the horizon of most Northern negotiators, nor was actual decolonization considered an imminent reality.9 Early on and in line with these expectations, this created a specific institutional culture that oriented the Bank towards private financial markets, in particular Wall Street. Because even though the IBRD had a base capital, it was supposed to finance its ongoing operations through issuing bonds and selling them at the private financial markets (ie, Wall Street). Therefore, 4 Edward S Mason and Robert Asher, The World Bank since Bretton Woods (The Brookings Institution 1973) 38. 5 On these discussions, Olav Stokke, The UN and Development: From Aid to Cooperation (Indiana University Press 2009) 84 (hereafter Stokke, The UN and Development); Kapur, World Bank (n 1) 1121. 6 See Stokke, The UN and Development (n 3) 93–​98. 7 ibid 95. 8 Kapur, World Bank (n 1) 1127; Jonas Haralz, ‘The International Finance Corporation’, in Kapur, World Bank (n 1) 811 (on the annual meeting of the bank in 1954); Helleiner, Forgotten Foundations (n 1) 268. 9 On the creation and the slipping of ‘development’ into the mandate, Pahuja, Decolonising International Law (n 1); on planning for decolonization, see Barsalou Chapter 19 this volume.

The World Bank in the ‘Decolonization Era’  281 establishing credibility with financial centre was a necessary strategy. The IBRD aimed to be more of a Bank than an international organization. Loans were awarded only according to strict Wall Street conservative, risk-​averse style. There was no interest or sensibility for TW needs and TW countries were unable to fulfil the stringent lending conditions. In the course of the 1950s, however, the Bank’s business model and its original geopolitical role became increasingly questioned. Formal decolonization accelerated and the context changed dramatically. The emerging and intensifying Cold War locked the West in a direct competition with the Soviet Union and created an indirect global contest for geopolitical influence.10 Any unrest and dissatisfaction in the TW bore the risk of tipping countries into the communist camp. To contain communism it soon became clear that economic support (development aid) and security could form an important link, extending concepts of colonial administration since the 1920s that ‘caring for the welfare of the natives was a technique of colonial domination’ and that developmental intervention could be used to quell unrest and create loyalties. The IBRD was viewed by many actors in the North as an important instrument to push back Soviets wherever possible, and not acquiescing with the poor had political risk.11 At the same time, an ideological paradigm shift took place that Arturo Escobar called the ‘discovery of poverty’.12 While colonial exploitation had always been covered up and justified by motives of salvation (based on Christian or other humanitarian causes), only in the first half of the twentieth century did the economic well-​being of the colonial subjects became a topic, and those subjects an object of intervention.13 By declaring them ‘poor’ or ‘under-​developed’ (and hence establishing a distinction between developed and under-​developed) not only were two-​thirds of the world’s population defined as lacking something—​but also as needing help. 14 This shift became a central tenet of Western foreign policy and its global aspirations, most overtly with the inaugural address of Truman 1949. As the US tried to distance itself from the increasingly untenable imperial justification of foreign interventions, the rhetoric of development provided a welcome rationale for global intervention beyond market interests and the security concerns vis-​à-​vis the Eastern bloc.

10 Odd A Westad, The Global Cold War: Third World Interventions and the Making of Our Times (CUP 2007) (hereafter Westad, The Global Cold War); Rajagopal, International Law, (n 1) 99–​101. 11 Rajagopal, International Law (n 1) 106. 12 Arturo Escobar, Encountering Development The Making and Unmaking of the Third World (Princeton University Press 2012) 21; Rajagopal, International Law (n 1) 105–​08; Pahuja, Decolonising International Law (n 1) 61–​66. 13 Jennifer L Beard, The Political Economy of Desire: International Law, Development and the Nation State (University of Melbourne Research Paper 2009). 14 Guy Sinclair, To Reform the Word (n 1) frames this point a bit differently, namely as ‘dynamic of liberal reform, which by seeking to maximize liberty, requires incessant fine-​tuning of institutions, individuals and society’ (283).

282  Philipp Dann In these circumstances, the battle for a ‘development bank’ continued and pressure grew on Western states (the US especially) to react. There were many calls for a (multilateral) institution that could provide financial support to poorer nations, which could not fulfil the strict lending criteria of IBRD.15 This demand was voiced in the UN but also prominently at the Asian–​African Conference in Bandung in 1955. The topic of economic cooperation actually topped the final communique, declaring that ‘assistance being received [ . . . ] from outside the region, through international or bilateral arrangements made a valuable contribution’. TW leaders demanded more financial and technological support from the West and clearly preferred multilateral lending over bilateral assistance.16 The Bank was a highly ambivalent object in this debate. On one hand it was indeed the only multilateral Bank at the time and well-​funded. It had also projected an image of a somewhat objective and ultimately non-​aligned institution with special expertise that could be used by TW countries. At the same time, the Bank was also highly suspect because of its discriminatory voting structure. As much as funding was called for, so was equal participation in the economic governance a central demand, and the structures in the Bank a constant reason for critique.17 The preference for many TW countries therefore was still the establishment of a capital fund at the UN. Throughout the 1950s, the US government made various moves to diffuse the demands. The Eisenhower administration first tried to influence the debate by suggesting that funds for concessional lending should come from those who agreed to disarmament.18 In the climate of an intensifying Cold War, this was simply a distraction. The US then signalled openness to another idea. Already in 1952, the UN Economic and Social Council (ECOSOC) had called for the creation of an agency that should provide funding for private corporations investing in the TW. Even though there was clear resistance to this in the Bank, this idea gained momentum, and the US pushed the World Bank to create a second branch to provide such funding, resulting in 1956 in the creation of the International Finance Corporation (IFC).19 This did not solve the question of concessional lending to TW states. In this regard, majorities shifted in the second half of the 1950s and sympathy grew also in US (especially in the state department and from Democrats) to redesign the 15 James H Weaver, The International Development Association (Preager 1965) 11–​17; ‘Report on a Special United Nations Fund for Economic Development’, prepared by a committee appointed by the Secretary General and presented to the 16th ECOSOC session 1953. 16 Though the Bank itself was not present at the conference, its influence at the conference is deemed considerable. On Bank and Bandung, Benjamin, Invested Interests (n 1) 117–​24 (esp. 121–​23). 17 See Ram P Anand, Sovereign Equality of States in International Law (Collected Courses of the Hague Academy of International Law, Vol 197 (The Hague Academy of International Law 1987). 18 Stokke, The UN and Development (n 5) 96. 19 Stokke, The UN and Development (n 5)  100–​02; Jonas Haralz, ‘The International Finance Corporation’ in Kapur, World Bank (n 1) 807–​12; Bronislaw Matecki, Establishment of the International Finance Corporation and US Policy (Praeger 1957).

The World Bank in the ‘Decolonization Era’  283 system. Anti-​communists viewed the Bank as an under-​utilized instrument to contain communism. Internationalists and those driven by more humanitarian or liberal causes advocated for expanding the IBRD’s reach.20 But there was equally strong resistance from isolationists and conservatives in the State Department, from within the Bank (particularly from its President, Eugene Black) and from other IBRD member states such as Germany.21 The management of the Bank in particular was very reluctant to endanger its hard fought for reputation as ‘neutral’ and independent institution.22 The battle was decided when the UN, with Soviet bloc support, moved to create a special fund; this move scared the US into action, and the US Senate also pushed for the creation of the IDA.23 When the US government insured the Bank leadership that control over a new, soft lending institution was not to be relinquished, the Bank management agreed. In July 1959, the US ordered its executive director to draft articles for the IDA. It took up work in 1960 as a soft-​lending window of the Bank.24 Political control of the new organization was structured the same way as the IBRD and hence it remained in the hands of the US and its allies.25 Although legally a separate organization, the IBRD’s governors, president, and executive director held ex officio the same position in the IDA. Also, the outward safeguards ‘against politicization’ remained.26 Two aspects of its institutional and legal framework, however, mark the considerable shift away from the IBRD model—​and the profound transformation of the Bank that took place: First, the new organization received a mandate ‘to promote economic development, increase productivity and thus raise standards of living in the developed areas of the world’.27 This would allow the support of projects ‘for purposes which are of developmental priority’28 and allowed the IDA to offer financial support to new group of poorer states but also to be thematically open to social issues (eg, education, health, agriculture). Secondly, the funding of the new organization followed a completely different model than the one used in the IBRD. Instead of financing the institution through

20 Mark Mazower, No Enchanted Palace: The End of Empire and the Ideological Origins of the United Nations (Princeton University Press 2013) Kapur, World Bank (n 1). 21 Benjamin, Invested Interests (n 1); on Black’s ambivalent/​complex position also Sinclair, To Reform the World (n 1) 222; Kapur, World Bank (n 1) pp. 136, 1124–​29; Stokke, The UN and Development (n 5) 93–​102. 22 Sinclair, To Reform the World (n 1) 222. 23 Stokke, The UN and Development (n 5) 101; Kapur, World Bank (n 1) 1127–​29. 24 Sinclair, To Reform the World (n 1) 225. 25 That is to say, voting rights were weighted according to the level of subscriptions; IDA Articles of Agreement art VI s 3. 26 Non-​political mandate (IDA Articles of Agreement art V s 6) and requirement to support only ‘specific projects’ (IDA Articles of Agreement art V s 1(b)). 27 IDA Articles of Agreement art I. 28 IDA Articles of Agreement art V s 1(a–​c).

284  Philipp Dann interests from borrowers and bonds placed at private markets, the IDA was to be funded solely by its members states. Every three years, member states who could afford it would be asked to provide new money in so-​called ‘replenishments’. This severed the dependence of the Bank from its reputation at Wall Street—​and allowed the member states (and the IDA) to put its political and developmental interests at the centre of its agenda. It ultimately created the chance to transform the institutional culture and understanding of the institution and create the development agency that the Bank then became—​but it also deepened the inequality between the member states. At the same time, the creation of the IDA was only one element of a wider institutional reconfiguration and institutionalization of the development paradigm. Around the year 1960, a plethora of institutions was created to administer the process of development, including the provision of concessional funding.29 In this broad move to institutionalization of the development paradigm, two different types of lending institutions emerged: one replicated the power structures at the UN, the other rather the power structures in the World Bank. The first type was advanced by a coalition of TW and the Soviet bloc governments. They created a fund to provide technical assistance, first the UN Special Fund for Development in 1959, which in 1964 was merged with the Expanded Programme for Technical Assistance (EPTA) to become the UNDP.30 In 1961, the World Food Program was created, the UN Conference on Trade and Development (UNCTAD) in 1964, the UN Industrial Development Organization (UNIDO) in 1966, and the International Fund for Agricultural Development (IFAD) (a latecomer) in 1977. In all of these institutions, the principle of equality and one state–​one vote applied. The other type were regional development banks.31 All of these copied the institutional model of the World Bank, in which institutional power is reserved to its main shareholder (ie, often the donating Northern countries), the façade of a non-​political neutral banks is erected and a separation between soft/​concessional lending and hard/​non-​concessional funding is ensured through a combination of contributions by member countries (IDA model) or independently earned money through interests from loans or bonds issued at the financial markets (IBRD model).32 These institutions became intensely courted and followed by the US and

29 Marc Frey, Sönke Kunkel, and Corinna R Unger (eds), International Organizations and Development 1945–​1990 (Palgrave 2014); see also Stokke, The UN and Development (n 5). 30 On these debates, see Stokke, The UN and Development (n 5)  98; see also Helleiner, Forgotten Foundations (n 1) 268. 31 Inter-​ American Development Bank (1959), African Development Bank (1964), Asian Development Bank (1966). 32 Dann, Law of Development Cooperation (n 1) 161; Suzuki Eisuke, ‘Regional Development Banks’ in Rüdiger Wolfrum (ed), Max Planck Encyclopedia of Public International Law (OUP 2013) (hereafter Suzuki, ‘Regional Development Banks’); Stephen D Krasner, Power Structure and Regional Development Banks (1981) 32 International Organisation 32 303; Ruth Ben-​ Artzi, Regional Development Banks in Comparison (CUP 2016) 64; Kapur, World Bank (n 1) 137–​38.

The World Bank in the ‘Decolonization Era’  285 other Northern governments to ensure that they became like-​minded partners and collaborators.33 In sum, Southern demands to create more institutions that would provide concessional funding, which were initially focused on a greater role of (egalitarian) UN participation, were diverted into a restructuring of the Bank by creating the IDA. A move that had been intended to bolster not just financial support but also political autonomy in using such finances turned the Bank into an even more hierarchical and oligarchic institution and strengthened the Northern dominance in the ‘engine room’ of development finance.

III.  Changing discourse and red lines Institutional battles were accompanied by discursive battles, which, as the 1960s unfolded, took place amid a more general atmospheric shift. The Cold War was intensifying, and many observers perceived the Soviets as gaining an upper hand, which put pressure on the West. In the US, Germany, and the UK, new liberal governments came to power and liberalization and emancipation became major themes of societal discussions. These developments also gave North–​South relations an increasingly central place in many Western debates. But while there was a growing number of people in the North who advocated fair relations between North and South, many in the North also seemed to consider these times as a global crisis, almost creating the impression of hysteria over the dangers posed by the gulf between poor and rich.34 Debates in the TW and attitudes towards the institutionalized development system (including the Bank) became increasingly diverse and critical,35 and connected to the rise of neo-​Marxist dependency theory, which turned the political and ideological focus to a fight for fair trade (and hence rather towards GATT and UNCTAD).36 However, there were also a number of fundamental critiques from the TW of the development aid system as it had emerged, one of which was Frantz Fanon. In his 1963 book The Wretched of the Earth, while not naming the Bank, he lucidly analyses the encounter between national liberation movements and international finance—​and formulates political imperatives for those interested in contesting the Bank’s (and other financier’s) demands.37 He argues that TW peoples 33 Allies of the Bank also emerged in the form of bilateral funding agencies in Western countries, for example, in Germany (the Ministry for Development Cooperation was created in 1962), in the US (creation of USAID), and the collective forum of these bilateral agents in the OECD; see Dann, Law of Development Cooperation (n 1) 53, 209. 34 On McNamara in this regard, Benjamin, Invested Interests (n 1) 87-​89. 35 On the different camps already at Bandung, see Vijay Prashad, The Darker Nations:  A Peoples History of the Third World (The New Press 2008) 33. 36 Dann, Law of Development Cooperation (n 1) 65. 37 Frantz Fanon, The Wretched of the Earth (Grove Press 1963) 66 (hereafter Fanon, The Wretched of the Earth).

286  Philipp Dann should demand a decisive redistribution of wealth, not the token pieces of aid, insisting that capitalist powers simply ‘must pay’ and that such a payment is unrelated to charity.38 Even more direct was the Ghanaian leader Kwame Nkrumah, who in his 1966 book Neocolonialism: The Last Stage of Imperialism took direct aim at the Bank. In the book he argues that the Bank’s role was mostly in furthering Northern banking and financial interests by opening up Africa, making investments there profitable for Northern capital without regard for local needs. As he sees it, Northern banking interests (which the Bank serves) are replacing colonial arrangements, while the Bank helps to erect ‘neo-​colonial trap of “multilateral aid” through international institutions’.39 At the same time, a Pearson report showed a growing frustration in the North and within the aid system about the slower than expected pace of creating change.40 Such voices and the shifts in public mood didn’t go unnoticed. The Bank acknowledged the dissent, and tried to divert anger; again, using Aikido-​style methods (turning hostile energy against the opponent), it redirected feelings of discord to themes of the TW, announced that it had learned lessons from the past, and tried to diffuse pressures. With the creation of the IDA, it started to provide concessional lending and became active in a number of new policy fields, especially education, health, and agriculture.41 Its new president George Woods vocally praised this new engagement and was celebrated for it by many representatives from the TW.42 One reason for this substantive but also rhetorical shift was the new funding structure. The need to raise contributions (replenishments) from its main shareholders forced the Bank to turn (at least in parts) away from Wall Street as its main audience, and to new broader audiences, such as parliaments in Northern states and the general public there, especially in the US (resulting in awarding outsized power to US NGOs and Congress).43 At the same time, the Bank aimed to address broader audiences in the South and engage with themes dominant there, for example, colonialism. The Bank in its early years had seen rather through the eyes of its Northern (if not British) shareholders. Now it started to acknowledge at least the colonial trauma and the broad justifications for anti-​colonial hostilities, though it framed these more as problems 38 Ibid  102-​3. 39 Kwame Nkrumah, Neo-​Colonialism: The Last Stage of Imperialism (Panaf Books Ltd 1971) 242 (hereafter Nkrumah, Neo-​Colonialism); on Nkrumah’s role generally /​in the liberation of Ghana, see Martin Meredith, The State of Africa: A History of the Continent Since Independence (Simon & Schuster UK 2013) 18 (hereafter Meredith, The State of Africa). 40 Lester Pearson, Partners in Development: Report of the Commission on International Development (Praeger 1969); Dann, Law of Development Cooperation (n 1) #. 41 Kapur, World Bank (n 1) 140; (Benjamin, Invested Interests (n 1) 83–​88; Rajagopal, International Law (n 1); Pahuja, Decolonising International Law (n 1)). 42 Sinclair, To Reform the World (n 1) 233. 43 Benjamin, Invested Interests (n 1) 65–​66.

The World Bank in the ‘Decolonization Era’  287 of a dramatic cultural encounters of economic exploitation and political violence.44 Nationalism was another central and even trickier theme,45 which had become the central TW sentiment in the age of national independence. But it could also trigger dynamics deeply problematic for the Bank, namely, the tendency towards isolationism and towards economic nationalization, both of which endangered the Bank’s mode of operation and ideology (based on international cooperation and open markets). Addressing nationalism, the Bank tried to turn it into a productive instrument of development interventions (state as central economic actor) and to dispel regional solidarity (or opposition; it was easier to negotiate with one than with many). It hence tried to put forward-​looking spins on these themes—​again, from its Western, liberal perspective. The difficult nature of the interactions with the South and the ultimate red lines and policy of the Bank, however, resulted in an intense dispute between the Bank and the UN over the Bank lending to both the apartheid regime in South Africa and the still-​colonial power in Portugal.46 In 1961, the UN General Assembly implemented the UN’s Declaration on the Granting of Independence to Colonial Countries and Peoples (Resolution 1514(XV)) by establishing a special committee ‘to examine the application of the Declaration’ and requested ‘the specialized agencies concerned to assist the Special Committee in its work within their respective fields’.47 This was squarely directed at the World Bank and its lending policies, and a copy of this resolution was forwarded to the president of the World Bank. There, however, it lingered for some time without any response. In mid-​1964, the UN Secretariat wrote to the Bank, again seeking information about bank loans to Portugal and asking about ‘the possibility of representatives of the Bank appearing before the Committee in order to provide clarification’. The Bank again was cool, sending the information but ignoring the invitation. In June 1965, while the Bank continued to ignore the demands, the Committee passed a resolution containing stronger language appealing ‘to all the specialized agencies of the United Nations, and in particular the IBRD [ . . . ] and request[ing] them to refrain from granting Portugal any financial, economic or technical assistance so long as the Portuguese Government fails to renounce its colonial policy, which constitutes a flagrant violation of the provisions of the Charter of the United Nations’. The Bank, however, continued its silence. Instead, it granted two loans to Portugal and South Africa in 1966 and left it to its General Counsel to respond to the UN. What followed were intense and at times heated exchanges between the legal departments of the

44 ibid 83–​86 (arguing that the Bank cast itself as new, uncompromised, and responsible forward-​ looking actor). 45 ibid  73–​79. 46 Samuel A Bleicher, ‘UN vs IBRD:  A Dilemma of Functionalism’, (1970) 24 International Organization 31. 47 UNGA Resolution 1654 (XVI).

288  Philipp Dann UN secretariat and the Bank, in which the UN demanded that the Bank stop its lending; the Bank rather used these demands to test and fortify its version of institutional autonomy, using in particular its non-​political mandate. Ultimately, next to some critical voices and anger over the symbolism of funding racist and colonial regimes, much of the TW political leadership retained a largely constructive and reformist attitude. The conceptual companionship between elites in South and North was still broad, as modernization theory and Keynesian economic thinking provided a common understanding for the needs of ‘development’ and respective interventions.48 The Bank also invested considerable resources to cultivate links to nationalist leaders and diffuse rhetorical and political antagonism.49 That the Bank portrayed itself as neutral, non-​aligned, economic actor might also have resonated with some in the South, for example in non-​aligned India, a major client of the Bank.50

IV.  Institutional law as weapon In these institutional and discursive battles over the position and course of the Bank, and in the larger questions of development finance, institutional law played a central role. It was not just a major weapon in locking up the institutional ‘engine room’, preserving Northern power against TW influence, but it also provided argumentative planks to counter demands. In fact, institutional law became the central instrument to deflect and divert Southern demands and launch counter-​strikes that further insulated the Bank against the egalitarian dynamic of decolonization, and which thereby strengthened the North’s position. Three aspects demonstrate how and under which conditions institutional law was used in this regard: first, the normative basis of the Bank’s positioning, second, a strategy of instrumentality and legal acumen to use this normative basis, and finally, functionalism that allowed for the Bank’s self-​positioning.51

48 Rajagopal, International Law (n 1) 31 ff; Dann, Law of Development Cooperation (n 1) 58. 49 Benjamin, Invested Interests (n 1) 115. 50 On the close connection between the Bank and India, see Bruce Muirhead, ‘Differing Perspectives: India, the World Bank and the 1963 Aid-​India Negotiations’ (2005) 4 India Review 1; Kapur, World Bank (n 1) 140. 51 My focus here is on the role of law within the institution. Others have focused on the interaction of the Bank and the process of state formation (especially Guy Sinclair) or on the larger narrative of international law (especially Sundhya Pahuja and Balakrishnan Rajagopal). I think, however, that there is also a distinct and under-​researched role that institutional law played in these years with regard to positioning the Bank vis-​à-​vis the TW. Thinking in a similar vein, see Dimitris Van den Meerssche, ‘International Law as Insulation: The Case of the World Bank in the Decolonization Era’, Paper presented at the ESIL Interest Group on International Institutional Law, ESIL Annual Conference, Manchester, UK, 13 September 2018 accessed 31 May  2019.

The World Bank in the ‘Decolonization Era’  289

1. Normative basis The use of law was based on several legal cornerstones that had been set down in the IBRD Articles of Agreement in 1945 and were preserved or even strengthened in the IDA Articles in 1960. One was the system of weighted votes, linking funding prowess and voting power and hence tying political influence in the Bank to financial investment. Introduced in the IBRD agreement (IBRD Articles of Agreement art V s 3)  it was in fact cemented, if not radicalized, with the cyclical funding scheme introduced for the IDA (replenishments, IDA Articles of Agreement art III s 1). This scheme gave those member states, which had and wanted to invest the money, direct political and thematic influence. This scheme aggravated the institutionalized inequality and flew in the face of all demands for fair (if not equal) participation in running the institution. It ensured that accountability in the World Bank was only to first world shareholders, not to Southern member states or those affected in the South. It relegated the South even more to being mere ‘borrowers’ or ‘recipients’. It was the rejection of solidarity52 and the installation of oligarchic charity.53 The other clauses shielding the Bank and providing both legal and political support for its actions were those that created its façade of political neutrality and technicality: the non-​political mandate (IBRD Articles of Agreement art IV s 10, and IDA Articles of Agreement art V s 6) and the ‘specific project’-​clause (IBRD Articles of Agreement art III s 4(vii), and IDA Articles of Agreement art V s 1(b)). These created an aura of objective expertise, which was widely believed—​despite the fact they were politically instrumentalized from early on.54 These aspects were 52 On the fragile concept of solidarity in development law, see Philipp Dann, ‘Solidarity and the Law of Development Cooperation’ in Rüdiger Wolfrum and Chie Kojima (eds), Solidarity:  A Structural Principle of International Law (Springer 2009), 55–​77. 53 It is a separate but telling story that the EU (at the time the European Economic Community, EEC) took a different path in their dealing with the TW. Here, the shift to soft lending was accompanied by a considerable reconfiguration of the terms of cooperation and a scheme of equal participation (on these developments, see Dann, Law of Development Cooperation (n 1) 43, 75; see also Marjorie Lister, The European Community and the Developing World: The Role of the Lomé Convention (Gower Publishing Company Ltd. 1988) 14; Enzo R Grilli, The European Community and the Developing Countries (CUP 1993) 27. When the EEC was founded in 1957, French and Dutch empires still existed and the new community was immediately used to organize funds for (very different) projects there. However, during the ensuing years of decolonization, two interesting shifts occurred. To accommodate the fact that the partners now had gained independence, the cooperation was based on a multilateral agreement, the Yaoundé Convention, which took effect in 1964. Here, new countries faced Europe not as single countries, but as a collective. This distinguished their negotiation position vis-​à-​vis the EEC. But second, and more importantly, demands grew over the terms of cooperation for a fair division of labour and Southern influence. This resulted in a widely hailed new treaty, the 1975 Lomé Agreement, which contained a truly cooperative approach and was hailed as a broad success of TW-​governments. 54 For example, through the introduction of programming loans, technical assistance, or diplomacy; see Sinclair, To Reform the World (n 1); Helleiner, Forgotten Foundations (n 1). But see also Michele Alacevitch, The World Bank’s Early Reflections on Development, Review of Political Economy (Stanford University Press 2009) 227 (who argues that, in its early years, the Bank refrained consciously from more social lending policies).

290  Philipp Dann strengthened by the mandate for ‘development and growth’, again supported in the IDA (IDA Articles of Agreement Preamble, art I, art V s 1(a)–​(b)), which provided a legal basis to give shape to the Bank’s take on the emerging ideology of development. Incidentally, these clauses were young innovations in international institutional law of the time with European roots. The idea of an organization created by states (and an international agreement) but with the power and knowledge structure of a private bank, run not by governments directly but by experts, was invented at the creation of the Bank for International Settlements (BIS) in 1930, considered the first ‘international financial institution’.55 The BIS was created by European governments (Belgium, France, Germany, UK, and Italy) plus Japan to deal with (settle) reparation payments of Germany after the First World War, which proved to be contentious and difficult between the involved governments. The idea at the time was to have an institution that was shielded from direct government interference and run by central banks in order to generate expertise-​based trust among partners.56 It was then picked up at Bretton Woods and introduced into the IBRD articles.

2.  Institutional structure and legal acumen Again, these were only contractual clauses—​‘law in the books’ that could be ignored, and that became a reality only through those applying and using it. It is in this regard that the practice of the Bank, particularly its use of the law, is especially characteristic. It is the masterful deployment and selective use of these clauses and institutional law generally that mark the Bank’s strategy in the 1950s and 1960s here. Law (back then as today) had no intrinsic value at the Bank, but rather was seen as strictly instrumentalist. It was put to strategic use to advance the interests of the Bank and its main shareholders.57 Law was not a value in itself, but rather a weapon used in the battles. The instrumental use of law was enabled by the institutional structure in the Bank, concretely, the interplay between Executive Board and General Counsel.58 According to the founding treaties, the executive directors have the power to 55 Mark Jacobs, ‘Bank for International Settlements’ in Rüdiger Wolfrum, Max Planck Encyclopedia of Public International Law (OUP 2013). 56 Helleiner, Forgotten Foundations (n 1) 55. The plan to create a similar structure in the Americas, that is, an Inter-​American Bank, actually faltered because Latin American countries objected both to the dominant position of the US as well as to US policy-​makers (Helleiner, Forgotten Foundations (n 1) 71). 57 It is interesting to note how much this is in contrast to the Bank’s later use of ‘rule of law’ vis-​à-​vis its borrowers. The Law and Development movement, which came to life in these years, had no support from the Bank. On the evolution of the Bank’s use of law, see Philipp Dann, Many Faces of the World Bank as a Legal Actor, Manuscript on file with the author (hereafter Dann, Many Faces). 58 On the institutional structure generally, Dann, Law of Development Cooperation (n 1) 180.

The World Bank in the ‘Decolonization Era’  291 interpret and further develop the Bank’s founding treaty (a telling decision, considering that the weighed voting structure thereby applied also to the presumably ‘technical’ matters of legal interpretation).59 In practice, however, this power was soon linked, if not outsourced, to the legal advice given by the leading legal minds in the Bank. The executive directors were mostly not lawyers, but were happy to get creative advice on how to reach desired outcomes on legally safe ground. Aron Broches in particular gave such advice in those years, and became the Assistant General Counsel of the Bank in 1951, and General Counsel in 1959, in the latter of which he played a formidable and formative role.60 Broches earned this trust through his astute legal acumen, which contributed majorly to the positioning of the Bank in the battles of the 1950s and 1960s. A central element of Broche’s legal insight was his strategic mix of flexibility and rigidity in using the Bank’s law, examples of the former are manifold, the best known being the loose interpretation of the term ‘specific project’.61 Much less known but equally significant was the very unorthodox (to put it mildly) practice of the executive directors to decide about the creation of new branches of the Bank. As described earlier, the decisions to create the IDA (and the IFC) came after long political battles and were therefore politically highly sensitive. Considering this, it is stunning to learn that the IFC and the IDA were both created by a decision of the Executive Board (and hence with all the weighed voting applying) —​and not by a separate conference of state parties using the principle of one state–​one vote, as per the usual procedure.62 This approach to the creation of two entirely new international organizations was not based on any formal decision, but simply informal interpretative practice. But there were also examples where Broches and the Bank used the law with utter rigidity. A prime example is the already mentioned dispute about apartheid and racism in cases of South Africa and Portugal. Despite urgent and direct appeals by the UN to the Bank to refrain from supporting the racist regimes in South Africa and Portugal, the Bank insisted on its inability to take into account the racism of both regimes—​in stark contrast to its ability to take into account the (socialist) domestic regimes of other potential borrowers (eg, Cuba or Chile). Here, Broches insisted that the Bank’s articles would simply leave no room for manoeuvre. 59 Art IX IBRD, art X IDA; see Henry G Schermers and Niels M Blokker, International Institutional Law: Unity within Diversity (Brill 2011) § 1356. 60 Aron Broches was a Dutch citizen who had studied law in the US, was a legal officer for Netherland’s delegation at the Bretton Woods conference, and joined the Bank in 1946. See Aron Broches, Selected Essays: World Bank, ICSID, and Other Subjects of Public and Private International Law (Kluwer Academic Publishers/​Martinus Nijhoff Publishers 1995). 61 Pahuja, Decolonising International Law (n 1); Sinclair, To Reform the World (n 1), Kapur, World Bank (n 1) 168–​69. 62 Aron Broches, ‘International Legal Aspects of the Operations of the World Bank’ Aron Broches (ed), Selected Essays:  World Bank, ICSID, and Other Subjects of Public and Private International Law (Kluwer Academic Publishers/​Martinus Nijhoff Publishers 1995) 28–​29 (hereafter Broches, ‘International Legal Aspects’).

292  Philipp Dann This strategic mix of flexibility and rigidity can be reformulated as a mix of constitutionalism and formalism in the interpretation of institutional law. Broches often reverted to the language of constitutionalism to understand the founding treaties.63 Constitutionalist language allowed for a dynamic and expansionist reading of World Bank competences and cast the expansion of the Bank’s power as normal organic growth of an international organization. At the same time, he could tap into a still-​strong culture of and belief in legal formalism, insisting on the literal reading of legal clauses and drawing legitimacy from such a formalist approach. As in other cases, Northern lawyers were very clever (and shameless) in mixing styles of argumentation, while hypocritically accusing others of doing so.64 The strategic use of law by the Bank to position itself and fight in the political, economic, and legal battles of the time went further than this. For example, early on the Bank pursued a strategy of diffusion. The Bank worked to export its institutional model and thereby shape the institutional environment and create partners, for example, in the founding of other development banks.65 Another strategy was that of proceduralization, where the Bank created procedural structures to help diffuse interests and create institutional hegemony for the Bank’s interests, such as done in the ICSID.66

3.  Functionalism as enabling factor The instrumentalist and strategic use of institutional law was aided not only by institutional structure and legal acumen, but also by functionalism as the dominant background theory of international organizations and international cooperation of the time. Functionalism complemented the institutional culture of the Bank in particular ways. Its central tenet is the assumption of an apolitical, technocratic nature of most international organizations.67 This aspect corresponded to the institutional culture and self-​understanding of Bank as a non-​political and economic institution, but might have also corresponded to the hope and rhetoric of non-​ alignment that was popular in many administrations of the TW. In fact, where Jan Klabbers distinguishes three broad narratives about international organizations (as grease to global capitalism, as instruments of governmentality, or as forces of progress) the World Bank could be an example of each of them.68

63 Sinclair, To Reform the World (n 1) 226–​28. 64 See the Introduction chapter of this volume). 65 See Suzuki, Regional Development Banks (n 32); Dann, Many Faces (n 57). 66 See Antonio R Parra, The History of ICSID (OUP 2012); Broches, ‘International Legal Aspects’ (n 62). 67 Jan Klabbers, ‘The EJIL Foreword:  ‘The Transformation of International Organizations Law’’ (2015) 26 European Journal of International Law 12 (hereafter Klabbers, ‘The EJIL Foreword’). 68 ibid  16–​17.

The World Bank in the ‘Decolonization Era’  293 But functionalism also played into the hands of the Bank in another, perhaps more surprising, way because it has no sensibility for equality and hence for the politically most obvious development of the time: multiplication of states (and growth in membership of the Bank). International organizations generally were based on the assumption of equal participation of all states in their decision making and operation. In this way, they also had a special ‘post-​colonial’ appeal for the newly independent states at the time.69 In the case of the Bank, however, this logic was suspended and was replaced by the logic of weighted power; in fact, it insulated the Bank against the rise in the number of new states as well as new member states. As mentioned, however, a central pillar of functionalism is its principal-​agent conception and dominant role of member states,70 and functionalism as a theory cannot comprehend the hierarchical and oligarchic character of an international organization. How the principal is composed is irrelevant for functionalist thinking. It does not imply anything in case of changing membership (here, the dramatic growth of development country group). Thus, decolonization according to functionalism did not change the principal.

V. Conclusion The battle for financial support in the 1950s and 1960s and role of World Bank therein show specific a dynamic: in response to demands for more support and fair participation from Southern governments, the Northern member states of the Bank and Bank management reacted with a move that is reminiscent of the Aikido fighting technique, which uses the opponents attacking energy to defeat the opponent. The demands for financial support were not blocked but taken up and used to fortify the dominance of the North even more. They were also used to place the World Bank as Northern agency at the centre of development thinking, which emerged at the dominant paradigm structuring North–​South relations at the time. To that end, different instruments were used:  one was rhetoric—​to engage and placate opponents; the other was law—​instrumental in turning Southern demands into even more dominant techniques. In effect, the Southern contestation of the original institutional basis of the Bank did not lead to a reversal or humbling of the Bank, but rather to a counter-​strike. This is particularly interesting from today’s perspective, as the Bank is again confronted and under immense pressure, this time from new competition by private markets or Asian-​led rivals.

69 Guy F Sinclair, ‘Towards a Postcolonial Genealogy of International Organizations Law’ (2018) 31 Leiden Journal of International Law 841–​69. 70 Klabbers, ‘The EJIL Foreword’ (n 67) 11.

13

Reading RP Anand in the Post-​Colony Between Resistance and Appropriation Prabhakar Singh*

I.  Introduction History teaches us clearly that the battle against colonialism does not run straight away along the lines of nationalism . . . the oppression of mankind will slowly leave the confusion of neo-​liberal universalism to emerge, sometimes laboriously as a claim to nationhood.1 [The] suggestions for radical, structural legal changes have come from Western scholars.2 Frantz Fanon did not advocate nationalism as the cure to colonialism. In the post-​ colony, the gradual rise of post-​war imperialism, for Fanon, gave way to ‘the confusion of neo-​liberal universalism’. The ‘confusion of neo-​liberal universalism’ also captures professor RP Anand’s approach to international law.3 In fact, Anand was of the opinion that the calls for ‘radical’ and ‘structural legal changes’ came from ‘Western scholars’.4 As such, the third-​world lawyers in the initial years after decolonization in India, as Chimni suggests, faced the dilemma of ‘decid[ing] the extent to which post-​colonial states should remain within the established boundaries of international law’.5 * I thank professor Upendra Baxi and Dr. PS Rao for giving multiple readings to my drafts. 1 Frantz Fanon, The Wretched of the Earth (Penguin Books 1967) 119. 2 RP Anand, New States and International Law (Vikas Publishing 1972) 65 (hereafter Anand, New States). 3 See UNGA Resolution A/​RES/​176(II), Teaching of international law, 123rd Plenary Meeting (21 November 1947) 110-​11. 4 Anand, New States (n 2) 65. Becker Lorca, as such, battles a straw-​man in saying ‘Resistance, therefore, is not exclusive patrimony of third worldist international lawyers’. Arnulf Becker Lorca, ‘Universal International Law: Nineteenth-​Century Histories of Imposition and Appropriation’ (2010) 51 Harvard International Law Journal 476 at 502 (hereafter Becker Lorca, ‘Universal International Law’). 5 Bhupinder S Chimni, ‘International Law Scholarship in Post-​ Colonial India:  Coping with Dualism’ (2010) 23 Leiden Journal of International Law 23 (hereafter Chimni, ‘International Law Scholarship’). Luis Eslava and Sundhya Pahuja, ‘Between Resistance and Reform:  TWAIL and the Universality of International Law’ (2011) 3 Trade, Law & Development 103, 116. Diane A Desierto, ‘Postcolonial International Law Discourses on Regional Developments in South and Southeast Asia’ (2008) 36 International Journal of Legal Information 387, 395. Prabhakar Singh, Reading RP Anand in the Post-Colony In: The Battle for International Law: South-North Perspectives on the Decolonization Era. Edited by: Jochen von Bernstorff and Philipp Dann, Oxford University Press (2019). © The Several Contributors. DOI: 10.1093/oso/9780198849636.003.0014

298  Prabhakar Singh To be sure, the 1960s in India was a generation that ‘had its political vision shaped by the astonishing cosmopolitan sweep’ of ‘Nehru’, as well as from the ‘ecumenical thought of Gandhi and Tagore as much as by Marx and Lenin’.6 Anand was, naturally, inheriting the post-​war neo-​liberal universalism with its inherent confusions that Fanon had pointed at. A  Nehruvian idealist, Anand, like Lauterpacht, believed in the doctrine of legal disputes.7 In Anand’s battlefield, India, discourses on new states and the New International Economic Order (NIEO) were to effectively shape three generations of international legal imagination.8 First, Anand’s battle was primarily one for recovering the lost histories of the new post-​colonial states without rejecting international law.9 In so doing, Anand was pushing the envelope on the earlier works of Professor CH Alexandrowicz, who was then teaching at the Madras University.10 Along with the likes of Wright, Syatauw, Abi-​Saab, and Sinha, Anand ploughed the discipline of new states, third-​ worldism, and Asian contributions to international law.11 Insofar as this intellectual 6 Sunil Amrith, Crossing the Bay of Bengal:  The Furies of Nature and the Fortunes of Migrants (Harvard University Press 2013) 241. 7 As a foot-​soldier in the battle in 1950s, Anand was well instructed by the great generals of the time—​Quincy Wright, Julius Stone, PE Corbett, and Elihu Lauterpacht. See Ram P Anand, Studies in International Law and History: An Asian Perspective (Martinus Nijhoff 2004) 167. 8 Anand, New States (n 2); Ram P Anand, ‘Towards a New International Economic Order’ (1976) 15 International Studies 467; Rahmatullah Khan, ‘The New International Economic Order: This Side of the Hedge’ (1977) 16 International Studies 483–​99; KB Lall, ‘India and the New International Economic Order’ (1978) 17 International Studies 435–​61; Upendra Baxi, ‘New International Economic Order, Basic Needs and Rights: Notes Towards Development of a Right to Economic Development,’ (1983) 23 Indian Journal of International Law 225. SK Agrawala, ‘The Emerging International Economic Order’ in Frederick E Snyder and Surakiart Sathirathai (eds), Third World Attitudes Toward International Law: An Introduction (Martinus Nijhoff 1987). 9 Ram P Anand, Development of Modern International Law and India (Nomos 2005). RP Anand, ‘The Formation of International Organizations and India: A Historical Study’ (2010) 23 Leiden Journal of International Law 5–​21 was Anand’s swan song. Prabhakar Singh, ‘Indian International Law: From a Colonized Apologist to a Subaltern Protagonist’ (2010) 23 Leiden Journal of International Law 79–​103 ‘picks up from where Professor Anand has left off ’. 10 Charles H Alexandrowicz, An Introduction to the Law of Nations in the East Indies:16th, 17th and 18th Centuries (OUP 1967) 9. Ram P Anand, Confrontation or Cooperation? International Law and the Developing Countries (Banyan Publications 1984). From the very start, Anand had the privilege of operating in a circle of scholars that included names such as Judge Radhabinod Pal, CH Alexandrowicz, Quincy Wright, Julius Stone, PE Corbett, and Elihu Lauterpacht in New Delhi, and Myres McDougal while studying at the Yale Law School for SJD. 11 SN Guha Roy, ‘Is the Law of Responsibility of States for Injuries to Aliens a part of universal International Law?’ (1961) 55 American Journal of International Law 863–​79 (hereafter Guha Roy, ‘Law of Responsibility’) ; JJG Syatauw, Some Newly Established Asian States and the Development of International Law (Martinus Nijhoff 1961); Georges Abi-​Saab, ‘The Newly Independent States And the Rules of International Law: An Outline’ (1962) 8 Howard Law Journal 95 and S Prakash Sinha, ‘Perspective of the Newly Independent States on the Binding Quality of International Law’(1965) 14 International & Comparative Law Quarterly 121 could have over the years influenced Anand’s New States. Also, Anand’s two important papers, RP Anand, ‘Role of the “New” Asian-​African Countries in the Present International Legal Order’ (1962) 56 American Journal for International Law 383–​406 (hereafter Anand, ‘Role’) and RP Anand, ‘Attitude of the Asian-​African States Toward Certain Problems of International Law’ (1966) 15 International & Comparative Law Quarterly 55–​75 (hereafter Anand, ‘Certain Problems’) predated his New States (n 2).

Reading RP Anand in the Post-Colony  299 movement focuses on the early African and Asian post-​colonial authors, Anand finds a pride of place. Second, Anand made a conscious decision to remain within the established the inherited boundaries of international law and to offer a critique, as it were, from the belly of the beast. This allows Anghie to argue that Anand ‘adopted, on the whole, a conciliatory position: the aim was to reform international law rather than dispense with it’.12 Obviously, Anand’s approach was emblematic of the cleavage of opinion among new states where, while there was a recognition of the colonial baggage in the inherited boundaries of such states, for international peace and tranquillity, India, among other states, was ready to accept uti possidetis.13 Post-​colonial lawyers regard Anand as one of the founders of a third-​world approach to International law. At the same time, Western scholars cited Anand to argue that an Asian attitude to international law, if any, was only a wishful thinking. How did Anand then nurture a third-​world approach in India and beyond? While attempting to address a co-​optive reading of Anand’s work by Western scholars, post-​colonial scholars paid tribute to Anand, but also distinguished themselves from him. In 2002, Chimni wrote of the two traditions of third-​world international law (TWAIL) scholarship—​TWAIL I and TWAIL II. Anand belonged to TWAIL I, of which Chimni identified nine weaknesses.14 At the same time, Anghie brought colonialism to the centre of international legal theory.15 In fact Anand and Anghie differ on the precise issue of the value or not of ‘cultural differences’ as a useful analytic for studying international law.16 As a soldier in the battle for international law, Anand was fully alive to the dangers of legal nihilism and lawlessness after decolonization.17 This chapter studies Professor Anand’s battle for international law. To that story, Anand’s impact on and appropriation by legal scholarship from the South and the North, respectively, are crucial episodes. Anand’s strategic silence, as well as his battle cry, are both equally crucial to fully understand his international legal imagination. 12 Anthony Anghie, Imperialism, Sovereignty and the Making of International Law (CUP 2005) 202 (hereafter Anghie, Imperialism); Anthony Anghie, ‘Imperialism and International Legal Theory’ in Anne Orford and Florian Hoffmann with Martin Clark (eds) The Oxford Handbook of the Theory of International Law (OUP 2016) 151, 161. 13 Matthew Craven, The Decolonization of International Law: State Succession and the Law of Treaties (OUP 2007) 186. 14 Chimni found Mohammed Bedjaoui more critical of international law than Anand. Bhupinder S Chimni, ‘Towards a Radical Third World Approach to Contemporary International Law’ (2002) 5 International Center for Comparative Law and Politics Review 18–​21. 15 Anghie, Imperialism (n 12) 2–​3. 16 Antony Anghie, ‘Cultural Difference and International Law: The League of Nations and its Two Visions of the Nation-​State’ (2002) 5 International Centre for Comparative Law and Politics Review 5. 17 That many of Nehru’s allies in the Bandung movement went on to become dictators and authoritarian rulers—​Tito in Yugoslavia, Sukarno in Indonesia, and Nasser in Egypt—​should not be lost on international lawyers. Curiously, Friedrich Berber, as a scholar and legal adviser in Nazi Germany and later Nehruvian India, was at the forefront of state-​led challenges to international law’s mainstream. Katharina Rietzler, ‘Counter-​Imperial Orientalism: Friedrich Berber and the Politics of International Law in Germany and India, 1920s–​1960s’ (2016) 11 Journal of Global History 113, 115.

300  Prabhakar Singh Although at the time international law was limited in vocabulary, Anand believed that dispensing with colonial international law would generate only a political explanation of doubtful value. His approach to international law was one of a harmonious construction of the narrative that saw productive, even emancipating, roles for the ex-​colonial powers and the post-​colonies. Consequently, Anand while critiqued the inheritance of international law for its Eurocentrism in the immediate post-​colony, this chapter argues that Anand’s optimism allowed his neo-​liberal, even patronizing, co-​option as ‘progressive’ by Western scholars.

II.  Decolonization and legal post-​colonialism Colonialism, epistemologically speaking, is ever-​present in the post-​colony as a universal European category. International law in the post-​colony thus oscillates between universalism and localism. In 1947 with the end of the British rule in India, the political post-​colonialism did not engender an immediate legal post-​ colonialism.18 Arguably, there is a lag of about a decade and a half between political independence and legal post-​colonialism in India. For example, the Constitution of India, 1950, mandated the continuity of colonial laws unless expressly repealed. In the centuries before the Indian decolonization, ‘colonialism, capitalism, and Christianity, the three most powerful weapons of the imperial state, severely threatened Indian political selfhood and Indian political sovereignty’.19 Yet 1947 did not represent the regaining of the ‘Indian political selfhood’ as political selfhood is hardly the same as political independence. Nehru had a particular faith in the International Court of Justice (ICJ). Speaking to the Chamber of Princes representing some 600 native kingdoms, at the time doubtful about joining the Union of India, Nehru said: The present tendency is to go beyond the Supreme Court to the International Court, whether it is the Court of Justice at the Hague or the U.N.O. to which we belong. It is a dynamic conception which is developing and many people think in terms of the International Court or Assembly exercising more and more powers to control national rivalries.20

18 Prabhakar Singh, ‘India Before and After the Right of Passage Case’ (2015) 5 Asian Journal of International Law 176. 19 Ananya Vajpeyi, Righteous Republic:  The Political Foundations of Modern India (Harvard University Press 2012) 9 (hereafter Vajpeyi, Righteous Republic). 20 Cited in Manu Bhagavan, ‘Princely States and the Making of Modern India:  Internationalism, Constitutionalism and the Postcolonial Moment’ (2009) 46 Indian Economic & Social History Review 427–​56,  446.

Reading RP Anand in the Post-Colony  301 In line with this Nehruvian spirit, Anand ‘judiciously recognized that, the complete rejection of the rules of international law was not a feasible option for newly independent states’.21 For Anand, the end of the Second World War signalled the battle to save the universalist project of international law in Asia and Africa. Naturally, Koskenniemi finds that Anand and others who sought to argue that Asians ‘too, had an international law’ inevitably ‘ended up once again projecting European categories as universal’. 22 Nevertheless, as Chimni says, it was the ‘absence of an alternative language and requisite authority’ that scuttled ‘the option of stepping outside the precincts of colonial international law and walking away’.23

A.  Indian publicists and the role of international courts Portugal was not ready to let go of its colonial territories on the Indian subcontinent. At its very birth, in 1947, the Indian Government opposed Portugal’s inclusion in the United Nations (UN) on those grounds.24 About a decade and a half after the Indian independence, the Right of Passage case presented Indian jurists with an opportunity to defend India’s territorial sovereignty before the ICJ against Portugal.25 After the ICJ’s verdict, India assimilated Goa into the Union of India. Consequetly, the Indian jurists began to develop post-​colonial doctrinal accounts for India to take back territories from unapologetic colonial powers.26 It is in that respect that Justice Hidayatullah argued that the UN Charter Article 2(4) couldn’t be read as ‘giving priority to peace over justice’.27 At the Supreme Court of India, Hidayatullah’s ruling in Monteiro v State of Goa case came two years after his book The South-​West Africa Case in which he attacked colonialism.28 21 Bhupinder S Chimni, ‘The World of TWAIL: Introduction to the Special Issue’ (2011) 3 Trade Law & Development 14, 18 (hereafter Chimni, ‘TWAIL’). 22 Martti Koskenniemi, ‘Histories of International Law:  Dealing with Eurocentrism’ (2011) 19 Rechtsgeschichte 152, 168. 23 Chimni, ‘International Law Scholarship’ (n 5) 23. See, Bhupinder S Chimni, International Law and World Order: A Critique of Contemporary Approaches (2nd edn, CUP 2017) 15 (hereafter Chimni, International Law and World Order). 24 See, ‘Opposition by India to Portugal being a member of the UN due to the imperialist administration in the possession in India’ (1947) External Affairs ID: 25323 (National Archives of India). 25 Case Concerning Right of Passage over Indian Territory (Merits) [1960] ICJ Reports 6 (hereafter Right of Passage case). 26 MK Nawaz, ‘Intervention by Invitation and the United Nations Charter’ (1959) 1 International Studies 203–​09. 27 Hidayatullah said: ‘Thus, although the United Nations Charter includes the obligation that force would not be used against the territorial integrity of other States (article 2 para 4), events after the Second World War have shown that transfer of title to territory by conquest is still recognized . . . If cession after defeat can create title, occupation combined with absence of opposition must lead to the same kind of title.’ See Monteiro v State of Goa [1969] MANU/​SC/​0140/​1969, para 25. cf. Ram P Anand, ‘Legality of the Threatened Soviet Intervention in West Germany’ (1968) 8 Indian Journal of International Law 409. 28 Mohammad Hidayatullah, The South-​West Africa Case (Asia Publishing House 1967). See the review of the book by RP Anand, ‘Review: M. Hidayatullah, The South-​West Africa Case’ (1968) 10 International Studies 627–​29.

302  Prabhakar Singh In the Goa case, Hidayatullah J—​while dealing with the issue of an ex-​Portuguese national—​produced, if you will, a Kadi moment.29 At the time, Wright, Anand’s mentor, interpreted India’s takeover of Goa as an example of ‘a major difference between the East and the West in the interpretation’ of the UN law.30 Arguably, while appreciating Anand’s optimism, at least some Western scholars displayed the possibility of a two-​way cross-​fertilization of views. Notably, both Monteiro and Kadi cases reject the primacy of the UN Charter in certain situations. The European Court of Justice’s alignment with the position taken by the Indian Supreme Court on the UN Charter some forty years ago signals that both India and Europe have had an estranged relationship with international law in the wake of decolonization and regional integration.

B.  Scholarly publications: from Madras to Delhi In 1954, the Indian Council of World Affairs, New Delhi, began publishing the India Quarterly, a ‘journal of international affairs’ with a focus on ‘India and Asia’. Africa was still mostly colonized.31 In 1959, the Indian Society of International Law and its flagship journal began under the direct patronage of Prime Minister Nehru.32 In early 1950s, the Indian Yearbook of International Affairs published by the Madras University’s Grotius Society for international law under the editorship of CH Alexandrowicz was India’s flagship journal of international law.33 The Indian Society of International Law represented the geographical displacement of the centre of the production of international legal scholarship from colonial Madras to post-​colonial New Delhi. With the editorship of the Indian Journal of International Law in the hands of Judge Pal of the Tokyo Tribunal fame—​and the slow death of the Yearbook—​the seat of international law in India began to effectively shift from colonial Madras to post-​colonial Delhi.34 29 Case C–​402/​05 P and C–​415/​05, Kadi and Al Barakaat International Foundation v Council and Commission [2008] ECR I–​6351. Opinion of Advocate General Maduro. 30 Quincy Wright, ‘The Goa Incident’ (1962) 56 The American Journal of International Law 617. 31 Quincy Wright, ‘The Psychological Approach to War and Peace’ (1954) 1 India Quarterly 23–​31. 32 Jawaharlal Nehru, ‘Inaugural Address: The Hon’ble Prime Minister of India Shri Jawaharlai Nehru, Patron’ (1960) 1 Indian Journal of International Law 4. The Indian Society of International Law ‘for teaching, research and promotion of international law, was established in 1959, primarily due to the efforts of the late V.K. Krishna Menon’ who from 1952 to 1960 represented India in the UN General Assembly. Indian Society of International Law, accessed 11 November 2016. 33 See the reference to Alexandrowicz in Upendra Baxi, ‘New Approaches to the History of International Law’ (2006) 19 Leiden Journal of International Law 555–​66. 34 Radhabinod Pal, ‘Message from the Honorary Editor-​in-​Chief:  Dr.  Radha Binod Pal’ (1960) 1 Indian Journal of International Law x. Ram P Anand, ‘Reservations to Multilateral Conventions’ (1960) 1 Indian Journal of International Law 84. In this shift to Delhi, Anand and his colleague Rahmatullah Khan were inheriting the tradition of international law from, among others, Sir Benegal Rau, even as

Reading RP Anand in the Post-Colony  303 No less significant was the start of International Studies, a Delhi-​based journal of international relations published since 1959 and committed explicitly to exploring ‘the theory and practice of non-​alignment and the developmental and security problems of Third World countries’. Both Wright and Lauterpacht wrote in International Studies—​Wright on ‘the Asian experience’ and Lauterpacht on teaching and researching international law in India.35 Post-​colonial India thus woke up to a discourse on whether lawyers or diplomats should lead foreign policy.36 The two journals published from New Delhi had Lord McNair, Jenks, Verdross, Morgenthau, Schwarzenberger, Castrén, Cheng, Lachs, Oda, Tunkin, and D’Amato, among others, gracing the pages.37 Anand occupies the space between political independence (1947), legal post-​colonialism (1960) and Hidayatullah’s reinterpretation of the UN Charter (1968). Optimism and doctrinal rigour remain. Anand’s hallmark.38 Anand’s New States exudes with his characteristic optimism: ‘Despite the horizontal extension of the international society and the multipolar world, our

he was passing it on to scholar-​judges like PS Rao, judge ad hoc ICJ and PC Rao at the International Tribunal of the Law of the Sea. 35 Quincy Wright, ‘Asian Experience and International Law’ (1959) 1 International Studies 71–​ 87; Elihu Lauterpacht, ‘International Law in India: Some Notes On Teaching and Research’ (1961) 3 International Studies 318–​25.‘[T]‌he same books are prescribed for a degree in political science as well as in law’. RP Dhokalia, ‘The Teaching of International Law and International Institutions in the Indian Universities’ (1971) 13 Journal of the Indian Law Institute 305, 307. 36 The jury is still out on whether international law was born from ‘colonial conflicts and bureaucratic dispatches rather than legal treatises and case law’. Lauren Benton and Lisa Ford, Rage for Order: The British Empire and the Origins of International Law, 1800–​1850 (Harvard University Press 2016) 11. 37 Given the ICJ Statute Article 38(1)(d) recognizes the ‘teachings of the most highly qualified publicists’ as ‘subsidiary means’ of international law, the above-​mentioned two journals from India became a site for the creation of the sources. Lord McNair, ‘The Practitioners’ Contribution to International Law’ (1963) 3 Indian Journal of International Law 271; C W Jenks, ‘Law and the Pursuit of Peace’ (1965) 5 Indian Journal of International Law 1; Bin Cheng, ‘United Nations Resolutions on Outer Space: “Instant” International Customary Law?’ (1965) 5 Indian Journal of International Law 23. Eric Castrén, ‘Recognition of Insurgency’ (1965) 5 Indian Journal of International Law 443; Alfred Verdross, ‘The Status of the European Convention for the Protection of Human Rights and Fundamental Freedoms in the Hierarchy of Rules of Law’ (1965) 5 Indian Journal of International Law 455. Anthony A D’Amato, ‘The Inductive Approach Revisited’ (1966) 6 Indian Journal of International Law 509. Georg Schwarzenberger, ‘Peace Treaties before International Courts and Tribunals’ (1968) 8 Indian Journal of International Law 1. Hans Morgenthau, ‘The United States and China’ (1968) 10 International Studies 23–​34; Hans Morgenthau, ‘The United States as a World Power: A Balance-​Sheet’ (1969) 11 International Studies 111–​48. Manfred Lachs, ‘The Twenty-​Fifth Anniversary of the International Law’ (1974) 14 Indian Journal of International 1; . Shigeru Oda, ‘The Role of the International Court of Justice’ (1979) 19 Indian Journal of International Law 157. Grigory I Tunkin, ‘General Theory of Sources of International Law’ (1979) 19 Indian Journal of International Law 474. 38 Among the twentieth-​ century publicists, Alexandrowicz, Brierly, Borchard, Der Molen, Nussbaum, Friedmann, Fatouros, Holland, Jessup, Jenks, Jennings, Kunz, O’Connell, Starke, Stone, Schwarzenberger, Mushkat, Lissitzyn, Verzijl, and Röling, among others, were Anand’s staple.

304  Prabhakar Singh new world is one world.39 And therefore—​in agreement with Lissitzyn and in disagreement with Northrop—​Anand argued that ‘cultural differences and their influence on policies of states must not be exaggerated’.40 Anand further maintains:  ‘In fact, new states have been and are more interested in participating in the making of new rule than in questioning the validity of the established rules.’41 Naturally, Anand was critical of sovereignty since the very beginning. In Compulsory Jurisdiction of the International Court of Justice, he declares that the ‘greatest obstacle’ in the preservation of world peace ‘were the false notion of sovereignty and the complete independence of states’. The ‘notion of state sovereignty or of the fullest independence power,’ for Anand, ‘was the source of theories which sanctioned the anarchy in international life.’42 Anand’s optimism, particularly his stress on the importance of the ICJ, appeared unmatched at the time. Penning the foreword to Anand’s Compulsory Jurisdiction, Corbett noted that Anand ‘is an enthusiast for judicial settlement’ and he ‘deplores the appointment of ad hoc judges as non-​juridical substitute’ at the ICJ.43 In opposition to Anand, in the Right of Passage case, the Indian judge ad hoc Chagla argued for India’s ‘absolute sovereign rights’, rejecting the ICJ’s jurisdiction in the case.44 Similarly, a decade later, Hidayatullah also did not agree with Anand on the compulsory jurisdiction of the ICJ. Nevertheless, in 1974, the year the NIEO was passed, and in line with Anand’s wishes, the Government of India accepted as compulsory ipso facto the jurisdiction of the ICJ over all disputes, with certain exceptions.45 As is evident, Anand had always believed in the worth and potential of international law as a discipline. In 1972 Anand wrote: ‘The new demands of the new countries did not mean or amount to any wholesale rejection of the traditional

39 Anand, New States (n 2) 2. 40 ibid 50; Manohar Sarin, ‘The Asian-​African States and the Development of International Law’ in Snyder and Sathirathai (n 8) 33, 42. 41 Anand, New States (n 2) 85. 42 Ram P Anand, Compulsory Jurisdiction of the International Court of Justice (2nd edn, Hope India Publications 2008 [1961]) 9 (hereafter Anand, Compulsory Jurisdiction); Ram P Anand, International Courts and Contemporary Conflicts (Asia Publishing House 1974). 43 PE Corbett, ‘Foreword’ in Anand, Compulsory Jurisdiction (n 42)  vii–​viii; Ram P Anand, ‘The Role of Individual and Dissenting Opinions in International Adjudication’ (1965) 14 International & Comparative Law Quarterly 788. In Compulsory Jurisdiction Anand acknowledges MC Setalvad, the then Attorney-​General of India, for having ‘gone through’ his book manuscript even as Setalvad recommended Chagla to Nehru for the ICJ ad hoc role. 44 Right of Passage case (n 25) 25, Dissenting Opinion of Judge Chagla, 116, 119. 45 Swaran Singh, Minister of External Affairs, ‘Declarations Recognizing the Jurisdiction of the Court as Compulsory:  India’ (18 September 1974)  accessed 16 November 2016. For an overview of India’s approach to international adjudication, see, VG Hegde, ‘India and International Settlement of Disputes’ (2016) 56 Indian Journal of International Law 1-​40.

Reading RP Anand in the Post-Colony  305 legal system but merely readjustment of the old law to the new conditions.’46 In international law Anand saw the potential of a truly universal justice. It is Anand’s optimism and eagerness to prove the law-​abiding nature of the new States—​an attitude that the Western scholars saw as ‘progressive’—​that led to his co-​option for extending an argument that alternative approaches to international law did not exist at all.

III.  Anand’s rational choice: inheriting Nehru, disinheriting Pal Indian lawyers were left to choose between two parallel approaches to international law advanced by Prime Minister Nehru and Judge Pal after decolonization. In his non-​alignment spirit, Nehru offered a political proposition of the unity of the nations that had experienced colonialism. While it was obvious that post-​colonialism politically meant moving to self-​government, Nehru did not tease out the translation of the Non-​Aligned Movement spirit in international law. Contrarily, in his Tokyo dissent, only Judge Pal, if at all, was able to translate the essence of political post-​colonialism into international law. I do not debate who between Nehru and Pal practiced and knew international law better. At any rate, the Nehru–​Pal debate presented a co-​optive duality to early post-​colonial lawyers. Albeit politically distancing himself from the West, Nehru believed in the role of international law, even as Judge Pal was particularly against international adjudication given his characterization of the Tokyo Trials as victor’s justice. Justice Pal was also Anand’s evaluator for his LLM thesis written at the Delhi University; the topic of the thesis being compulsory jurisdiction of the ICJ.47 Anand’s support for India’s compulsory jurisdiction of the ICJ was not at all to Pal’s liking. Anand owed to Quincy Wright not only his first LLM at the Delhi University but also his publication in the American Journal of International Law much the same way ‘Morgenthau owed to Hans Kelsen the award of his habilitation’.48 Anand’s was a case of a carefully cultivated scholar—​supported in no small measure by his Western teachers—​ensuring that his ‘progressive’ attitude to international law and courts represents the voice of the developing countries.

46 Ram P Anand, ‘Editor’s Introduction’ in Ram P Anand (ed) Asian States and the Development of Universal International Law (Vikas Publications 1972) xxxi. 47 Anand’s LLM thesis at Delhi University examined the compulsory jurisdiction of the ICJ and was published in 1961 as Ram P Anand, Compulsory Jurisdiction (n 42). 48 Chimni, ‘TWAIL’ (n 21) 43; fn 33.

306  Prabhakar Singh

A.  Inheriting Nehru As with other leaders in Asia, India’s founders too had a particular sense of the past, and of their political inheritance.49 By invoking that past, they bolstered the authority and legitimacy of the political claims they made in the present.50 The early post-​colonial Indian lawyers followed the footsteps of modern India’s cosmopolitan founders. Accordingly, Nehru, an internationalist, took the Kashmir issue to the UN Security Council for resolution.51 Nehru stood for both the UN and international adjudication for which the nationalists continued to criticize him in India.52 Anand had inherited that Nehruvian optimism about international law and international adjudication of disputes.53 Anand dedicated perhaps his the most thought-​provoking book, New States and International Law, to the memory of Quincy Wright. After its publication, an overwhelmed Röling wrote to Anand: When I was in India, years ago, I had the opportunity to talk to the then Prime Minister Nehru. I asked him to mention to me Indian legal scholars who might be considered as the voice of Asia in the matters of international law. Nehru answered, after having been in deep thought for some time: ‘they do not exist yet, the Indian international lawyers are educated in England, and have not yet developed an Asian viewpoint. We have to wait for young scholars, who will express the attitude of the newly independent peoples’.54

It is notable that Röling, himself a partial-​ dissenter, was one of the eleven judges at the Tokyo Tribunal where Indian judge Pal wrote his famous dissent. Unfortunately, Nehru’s aspirations of finding homegrown voices to ‘express the attitude of the newly independent peoples’ remained unfulfilled. With the exception of Chimni, quite literally almost all the leading voices concurring or dissenting to international law’s universalism since the 1960s are partially products of the Western legal system. As such, Anand represented ‘the particularistic universalism of non-​European international lawyers’.55 While seeking to universalize 49 Jawaharlal Nehru, The Discovery of India (first published 1946 OUP 1985) 87. 50 Jawaharlal Nehru, Glimpses of World History: Being Further Letters to His Daughter, Written in Prison, and Containing a Rambling Account of History for Young People (Drummond 1942). Vajpeyi, Righteous Republic (n 19) 11. 51 The Security Council, ‘Having considered the Complaint of the Government of India concerning the state of Jammu and Kashmir’. See, UNSC Res 47 (1 April 1948) ‘The India-​Pakistan Question’ UN Doc S/​RES/​47. 52 ‘Notice Under Rule 197 from AB Vajpayee for Lok Sabha Regarding talks held with Dr. Graham on the Kashmir issue, statement made by PM Nehru’ (3 March 1958) External Affairs ID: 53103 (National Archives of India). 53 Ram P Anand, ‘Jawaharlal Nehru and International Law’ (2002) 42 Indian Journal of International Law 5, 14 (hereafter Anand, ‘Jawaharlal Nehru’). 54 ‘BVA Röling’s letter to RP Anand, 7 January 1973’, reproduced on the front jacket of Anand, New States (n 2). 55 Becker Lorca, ‘Universal International Law’ (n 4) 475.

Reading RP Anand in the Post-Colony  307 international law, Anand exhibited, as it were, the symptoms of the older jurists of the semi-​periphery. Becker Lorca says ‘international law became universal only when non-​Western jurists internalized European legal thought’.56 Much earlier, in New States, Anand too had made this point about the process of the universalization of international law.57 Reviewing New States, Philip Jessup added: Anand ‘appears to agree that the sense of the inadequacy of international law was developed by the dissidents when they were students in Western universities.’58 Having noted Nehru’s aspirations for an ‘Asian viewpoint’ on international law, Röling assessed Anand in warm words: ‘I think you have fulfilled Nehru’s expectations . . . You have written a fine book, which will play a role in the development of many scholars in the development of international law itself.’59 Unlike Nehru’s, Röling’s prophecy would not go unfulfilled. Baxi suggests that, in the years that followed, Anand nurtured a tradition of ‘postcolonial reconstruction of international law’ with his teaching and writings,60 gradually cultivating a crop of Asian scholars with his efforts. Omuma Yasuaki wrote that during the 1960s–​1970s Anand was ‘almost the only Asian international lawyer whom we could regard as competitive with leading Western international lawyers, publishing actively attractive works in English’:61 [W]‌e are all students of Professor Anand, by learning his great works for years. How have we been proud of him, who was a visible figure in the international lawyers’ circle already in the early 1960s, when the term ‘international lawyers’ virtually meant Western international lawyers. He has truly been a hero to us Asian international lawyers.62

Given the overall references to his works, Western lawyers read more of Anand in comparison to almost any other Asian scholar of his generation. In his Hague Academy lectures, Anand chose to speak on the sovereign equality of states.63

56 ibid 478. 57 See Anand, New States (n 2). 58 Jessup’s review reprinted on the cover of Anand, New States (n 2). 59 See Röling (n 54). 60 Upendra Baxi, ‘A Tribute to Ram Anand’ (10 February 2011) Law and Other Things accessed 30 October 2016. 61 ‘Tribute from Prof Onuma Yasuaki’ (2011) 30 October  2016. 62 Onuma Yasuaki, ‘Tribute from Japanese Society of International Law’ (2011) accessed 30 October 2016. Anand’s focus on the history and a post-​colonial vision of Indian/​Asian international allowed him more visibility over contributions of Nagendra Singh, BS Murty, MK Nawaz, TS Ramarao, Narayana Rao, Surya P Sharma, and Rahmatullah Khan, to mention only a few. 63 Ram P Anand, ‘Sovereign Equality of States in International Law’ (1986) 197 Recueil des cours reprinted as Ram P Anand, Sovereign Equality of States in International Law (2nd edn, Hope India Publications 2008) (hereafter Anand, Sovereign Equality).

308  Prabhakar Singh Among other things, Anand recognized that a ‘class criterion in assessing legal standards would be tantamount to measuring events with the yardstick of bourgeois law, which is entirely wrong’.64 Anand critiqued the ‘present cruel economic order’65 saying not only is ‘all law . . . a law of inequality’, but in some cases ‘the inequality is very apparent and conspicuous’.66 Anand’s lecture at The Hague displayed his subtle but sure movement away from his earlier position, towards appreciating injustices embedded in international law.

B. Disinheriting Pal Since 1948, Nehru had expressed his reservations to Pal’s Tokyo dissent, distancing India from the legal position Pal took. Nehru’s biographer Noorani flatly states that ‘Nehru did not think highly of Pal’.67 On 6 December 1948 Nehru wrote: In Japan the sentence of death passed on Japanese war leaders has met with a great deal of adverse criticism in India. The Indian Judge on that Commission, Justice Pal, wrote a strong dissentient judgment. That judgment gave expression to many opinions and theories with which the Government of India could not associate itself. Justice Pal was, of course, not functioning in the [Tokyo Tribunal] as a representative of the Government of India but as an eminent Judge in his individual capacity.68

Nevertheless, India unsuccessfully nominated Judge Pal for the ICJ following the demise of Sir Benegal Rau, and later Pal went to represent India to the International Law Commission. During his LLM evaluation, as mentioned before, Anand had the opportunity to interact, even cross swords, with Judge Pal on the issue of compulsory jurisdiction of the ICJ. Later, Anand found a formidable opposition in Justice Hidayatullah who, in 1969, suggested ‘that there should be compulsory submission of the question of international Court of Justice cannot avail in India where Supreme Court will be moved to examine the legality of the consent’.69 However, Anand’s support for the compulsory jurisdiction for the ICJ remained unflinching.70 In fact, in the 64 ibid 39. 65 ibid 118. 66 ibid 47. 67 Abdul G Noorani, ‘The Yasukuni “Hero” ’ (2002) 24 Frontline para 10. 68 Jawaharlal Nehru, quoted in ibid para 11 (emphasis added). 69 Mohammad Hidayatullah, ‘Foreword’ in SK Agrawala (ed), Essays on the Law of Treaties: With Special Reference to India (Orient Longman 1969) vi (hereafter Hidayatullah, ‘Foreword in Agrawala’). 70 Ram P Anand, ‘India and the World Court’ (1960) 2 International Studies 80–​92; Ram P Anand, ‘The Acceptability of Compulsory Procedures of International Dispute Settlement’ (2001) 5 Max Planck Yearbook of United Nations Law 1–​20.

Reading RP Anand in the Post-Colony  309 Arial Incident case, the Pakistani judge ad hoc extensively quoted Anand’s position on the ICJ to argue that the ICJ should have found jurisdiction in this case.71 Anand—​and probably Quincy Wright, too—​did not celebrate Justice Pal’s Tokyo dissent.72 This silence was perhaps a result of Anand chosing Nehru over Pal. While in Delhi, Corbett and Wright had the opportunity to appreciate Anand’s optimism about the role of the ICJ in the developing countries. Anand stood in direct opposition to Pal’s views on international adjudication. Anand’s obvious rejection of Pal’s alighment with the Japanese ensured his alignment with the American policy on international law under the tutelage of Wright and McDougal as well as his co-​ option as a progressive developing country scholar.

C. Confronting contemporaries A year before the publication of Anand’s paper, Judge Guha Roy had published a scathing criticism of colonialism in international law while critiquing, among others, Vattel, Brierly, and Borchard for ‘slipping into the fallacy of arguing in a circle’.73 Later, McDougal and Laswell characterized it as ‘Guha Roy’s mystical assumptions,’74 while Lillich accused scholars of ‘playing into the hands of Guha Roy’.75 A year later, Lillich went even further to say that Guha Roy’s was a ‘superficially reasoned piece that did not need an answer’.76 Lillich’s attack on Guha Roy could well be compared with that on McNair and Lauterpacht by Justice Hidayatullah. Hidayatuallh had suggested that, in relations to the question of the compulsory submission to the ICJ, ‘the suggestions of Brierly, Hersch Lauterpacht and Gerald Fitzmaurice do not serve to remove our difficulties but make them greater’.77

71 Arial Incident of 10 August 1999 (Pakistan v India) Jurisdiction of the Court, Judgment (2000) ICJ Reports 12, Dissenting opinion of Judge ad hoc Pirzada, 60, 82, 95-​96, 99, 104. 72 Radhabinod Pal, The International Tribunal of the Far East: Dissentient Judgment of Justice Pal (Kokusho-​Kankokai 1999). For example, in his article on Japan, Anand does not mention Pal’s dissent. Ram P Anand, ‘Family of Civilized States and Japan: A Story of Humiliation, Assimilation, Defiance and Confrontation,’ in Ram P Anand (ed), Studies in International law and History: An Asian Perspective (Martinus Nijhoff 2004) 24. Much of Anand’s reference to Pal relates to Pal’s works published after his dissent. In New States Anand refers to Pal’s works published in the All India Reporter and the UN Review on international organizations. See Anand, New States (n 2) 68. 73 Guha Roy, ‘Law of Responsibility’ (n 11) 876. 74 Myres S McDougal, Lung-​Chu Chen and Harold D Lasswell, ‘The Protection of Aliens from Discrimination and World Public Order:  Responsibility of States Conjoined with Human Rights’ (1976) 70 American Journal of International Law 432, 453. 75 Richard B Lillich, ‘Duties of Sates Regarding the Civil Rights of Aliens’ (1978) 161 Recueil Des Cours 329, 422. 76 A pejorative evaluation of the works of non-​Western jurists might not have been a general trend in Western academia. However, some are expected to have been found wanting in the academic protocol in reading and reflecting non-​Western scholarship. See, the Guha Roy–​Lillich debate in Muthucumaraswamy Sornarajah, The Pursuit of Nationalized Property (Martinus Nijhoff 1986) 65. 77 Hidayatullah, ‘Foreword in Agrawala’ (n 69) vi..

310  Prabhakar Singh While pursuing higher studies in various foreign universities, academic researchers did not have the kind of freedom of expression enjoyed by the Indian judges. One can therefore see that Pal, Guha Roy, and Hidayatullah, who had full juridical autonomy to express their views, represented the case of the tail wagging the dog. At the time, Anand’s reconciliatory approach in the American Journal of International Law (AJIL) must have presented a welcome change for Western lawyers like Lillich and Jessup, allowing, later, a co-​optive reading of Anand’s works by Keith. Nevertheless, Anand was an idealist who sought a proactive role for universal international law, as opposed to power and power blocs, to shape the world order. One of the best barometers of Anand’s internationalism is to compare him with his contemporaries—​Judges Guha Roy and Hidayatullah, and former President of the ICJ Judge Nagendra Singh.78 Like Anand, all the three judges were jurists and publicists of the highest calibre. While Justice Hidayatullah wrote a monograph on the West Sahara case, Judge Singh was the President of the ICJ during the Nicaragua case.79 Judge Singh and Anand were both united in their belief that ancient Indian law and modern international law had similarities.80 Notably, both Judge Guha Roy and Justice Pal came from the colonial Calcutta High Court, while Hidayatullah, educated at Cambridge, was a judge of the post-​colonial Indian Supreme Court in New Delhi. Between Judges Pal, Guha Roy, and Hidayatullah, on one side, and Anand on the other, India after 1947 had witnessed a range of international legal perspective emerging from the post-​colony. The Nehruvian tradition of international law to stay non-​aligned was already a radical one, however.81 Anand had inherited that Nehruvian tradition.82 Contrarily, Justice Pal was read as inheriting the tradition of the Bengali nationalist Subhas Chandra Bose; an ally of the Japanese in the Second World War who, before his alliance, had a love–​hate relationship with Gandhi.83 Hence, in the Tokyo dissent some saw Judge Pal repaying the Japanese warlords for their support of

78 Guha Roy, ‘Law of Responsibility’ (n 11); Nagendra Singh, India and International Law (S Chand 1969). 79 Concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America) (Merits) [1986] ICJ Report 14. In Daniel O Saavedra, ‘Condolence Message from the President of the Republic of Nicaragua’ (1989) 28 Indian Journal of International Law vii after Judge Singh’s death, the Nicaraguan president acknowledged the role Judge Singh played in admitting the matter in the ICJ against the superpower. 80 Carl Landauer, ‘Regionalism, Geography and the International Legal Imagination’ (2011) 11 Chicago Journal of International Law 557, 567. 81 See former Indian Prime Minister PV Narasimha Rao, ‘Nehru and Non-​Alignment’ (30 May 2009) Mainstream Weekly para 3. 82 Anand, ‘Jawaharlal Nehru’ (n 53) 6. 83 Constituent Assembly, Professor SS Saksena, ‘Formation of Azad Hind Bank in Burma by Azad Hind Govt., of Netaji Subhas Chandra Bose’ (1947) OVERSEAS—​II, ID 25280 (National Archive of India).

Reading RP Anand in the Post-Colony  311 the Indian National Army created by the nationalist Bose in Singapore.84 Indeed, Harvard historian Sugata Bose thinks Subhas Chandra Bose may have indirectly influenced Judge Pal’s views at Tokyo.85 In any case, as noted earlier, it was Nehru’s non-​alignment internationalism that inspired India’s early lawyers.86 Moreover, Anand, like Alexandrowicz, was critical of the Chinese invasion of Tibet.87 Perhaps it was Anand’s idealism and his ‘particularistic universalism’ for international law that struck a chord with the legal minds in the post-​colonial world. In the year Hidayatullah offered a legal justification for India’s annexation of Goa, in rejecting the invasion of Tibet, Anand rejected both blue-water colonialism as well as the new Asian territorial occupation.

IV.  Generating resistance, getting co-​opted It would be worthwhile to unpack the resistance to nineteenth-​century positivist international law that Anand was generating in his writings. In order to cure international law of its European bias, Anand spoke of a history of international law in pre-​colonial India. In such ways he demanded the inclusion of the Afro-​Asian countries as civilized states. In effect, Anand was not rejecting international law, but he was attempting to open the province of international law to non-​Western states.

A.  Resistance Evidently, Anand and other notable publicists of his generation had to ‘deal with the double life of international law’. In 1962, Anand wrote his most influential paper on Afro-​Asian concerns in international law where he sought to highlight international law’s Eurocentrism.88 He wrote extensively, inter alia, on the UN System, the ICJ, the NIEO, and the Law of the Sea. He tried to stitch together, within the confines of the doctrine, a productive narrative of international law for Afro-​Asian countries: 84 Aashis Nandy, ‘The Other within: The Strange Case of Radhabinod Pal’s Judgment on Culpability’ (1992) 23 New Literary History 45, 47. 85 Quoted in Norimitsu Onishi, ‘Long After War Trials, Japan Still Honors a Judge’ (31 August 2007) New York Times A4. 86 Judge Pal demonstrated a ‘tragic ethos’ in assertions of a universal international law. Adil Khan, ‘Inheriting A  Tragic Ethos:  Learning from Radhabinod Pal’ (2016) 110 American Journal of International Law Unbound 26, 27. 87 Ram P Anand, ‘The Status of Tibet in International Law’ (1968) 10 International Studies 401–​45. 88 The Indian Journal of International Law and International Studies effectively became the pivot for international law/​relations scholarship in India. These were also the two most frequent repositories of Anand’s work. Ram P Anand, ‘Survey of Recent Research: International Law: Attitude of the “New” Asian-​ African Countries Toward the International Court of Justice’ (1962) 4 International Studies 119–​32; Ram P Anand, ‘Tyranny of the Freedom of the Seas Doctrine’ (1973) 12 International Studies 416–​29. Yogesh K Tyagi, ‘The System of Settlement of Disputes under the Law of the Sea Convention: An Overview’ (1985) 25 Indian Journal of International Law 191.

312  Prabhakar Singh Thus, while the fathers of modern international law, Vitoria, Suarez, Gentili, Grotius, Pufendorf, Bynkershoek, Wolff and Vattel, conceived of it as a universal system, leading writers of the last century and the early years of the present century, such as Wheaton, Phillimore, Hall, Oppenheim, Fauchille, Westlake and others, declared it to be applicable only between the European Powers. In order to bring other countries under its sway, they were required to be formally admitted to this closed group.89

In other words, from a universal law, the later jurists turned international law into a law of the club; the European club. Ironically, soon after the Asian and African decolonization Western scholars called for the universal potential of international law. India gained its independence in 1947, a decade before most of the African nations. This gave Anand the opportunity to reflect upon both colonialism and post-​ colonialism. Besides, when speaking of the new states in international law, Anand brought to bear the Yale Law School’s policy analysis on the doctrinal approach. The ‘uncommitted’ new states, Anand wrote, have become objects of strong competition and wooing among the big Powers, with the result that they have come to acquire an unusual and disproportionate weight in influencing the course of history.90 [Anand’s assessment of the developing countries came from his prior assessment of the role of peripheral European countries in the making of international law] But even in Europe the small countries existing at that time did not participate very actively in this process. It is only natural that the participation of the smaller and less developed countries in international affairs should be less active.91

Anand remained concerned about rivalries among Asian States to achieve their narrowly conceived national goals instead of fighting for common aspirations to achieve an equitable and just world order. As the primary subjects of international law, states were, particularly in the post-​colonies, celebrated even as sovereignty as a conceptual category was gradually taking Asian-​ness away from Asia.

B.  Co-​option While Anand saw New States as an exercise in international legal theory, ironically, James Fawcett called it a ‘passionate political pamphlet’ that ‘demolishes the picture of Europe as the home and creator of international law’.92 Anand was very

89

Anand, ‘Role’ (n 11) 383–​406, 383. Anand, ‘Certain Problems’ (n 11) 55–​75. 91 Anand, ‘Role’ (n 11) 385; Anand, ‘Certain Problems’ (n 11) 59. 92 JES Fawcett, back cover quote on Anand, New States (n 2). 90

Reading RP Anand in the Post-Colony  313 widely read in both Asia and the West and his objective and rigorous approach from a newly decolonized world was not lost on Western lawyers. In 1967, Keith—​ later Judge of the ICJ—​wrote ‘In a field where inaccurate generalizations abound, one generalization can with confidence be made: there is no Asian attitude to international law. Rather there are a series of attitudes—​attitudes, moreover, towards particular areas of international law and not towards the system as a whole.’93 And in order to bolster this proposition Keith copiously cited Anand—​right from the first footnote of his article—​as challenging the contention that ‘Asian States and peoples are said to be less legalistic, less in favour of codes, and more prone to settlement according to more flexible criteria’.94 Indeed, in New States Anand rejected the overemphasis on the cultural differences in making international law universal.95 To that end, he noted a vast majority of the new states being non-​Christian and therefore ‘cultural differences and their influences on policies of states must not be exaggerated’.96 When Anand referred to culture in international law context, he spoke of culture as history and law.97 And here Anand politely disagreed with both Wright and Northrop who thought otherwise.98 And while presenting a ‘contrary view’ Anand cited his two germinal articles published in the AJIL and the International and Comparative Law Quarterly (ICLQ).99 As argued before, Keith too had previously cited Anand’s ICLQ paper to make a claim that ‘no Asian attitude to international law’ existed. Arguably, Keith had misread Anand’s optimism for the caveated acceptance of international law as Anand’s rejection of a particular Asian approach to international law. Anand was trying to achieve a fine balance between the colonial history and a decolonial future of international law. When Anand moved on to study a new area of law emerging in 1970s—​the Law of the Sea, Anand yet again attempted to prove that a kind of international Law of the Sea existed in Asia prior to colonization. In propounding his thesis about the ‘Freedom of the Seas or the Right which belongs to the Dutch to take part in the East Indian trade’, it is significant that, not only was Grotius well aware of the long tradition of freedom of navigation in the Indian Ocean, but . . . got his helpful cue from the Asian State practice of freedom of commerce and trade between various countries and peoples without any let or

93 KJ Keith, ‘Asian Attitudes to International Law’ (1967) 3 Australian Yearbook of International Law 1. 94 ibid 2, 27, 33. 95 Anand, New States (n 2) 48. 96 ibid 50. 97 Ram P Anand, ‘Editor’s Introduction’ in Ram P Anand (ed) Cultural Factors in International Relations (Abhinav Publication 1981) 16; Ram P Anand, ‘International Law in a Multi-​Cultural World’ (1985) 22 International Studies 95–​104. 98 Anand, New States (n 2) 49–​50. 99 ibid 49; see also (n 16).

314  Prabhakar Singh hindrance. This fact of history has been generally ignored by historians of international law.100

Chimni explains Anand’s preoccupation with the Law of the Sea: ‘First, it was an area where the law was evolving and far from settled . . . Second, it was a test case for what was seen as the transformation of international law from being a law of coexistence to a law of co-​operation.’101 Anand said that, despite the setbacks around the Law of the Sea Convention, the international community was ‘better off with a universally recognized, comprehensive treaty on law of the sea with a new agreed law for the twenty-​first century, which in itself is no mean achievement’.102 Chimni suggests that, for Anand and others of his generation, Law of the Sea negotiations ‘were seen as offering the possibility of transcending the duality of international law through a Hegelian moment of ascending synthesis’.103

C. Anand’s critique If the modern international law is imperial, by analogy, the ancient Indian international law, if any, for which Anand and Judge Nagendra Singh argued must also have been imperial and exploitative. Indeed, Indian publicists primarily cited the Arthashastra and scores of Sanskrit texts—​not all the Sanskrit texts were Hindu—​ to prove the presence of international law in India.104 As argued elsewhere, ‘the nature of governments might have been same in the ancient East and the medieval West’, even as their conceptualization as nations was not the same.105 Therefore, the Indian Chanakya, Arthashastra’s author, and Chinese Confucius, are both ancient Asian intellectual cousins of Machiavelli and Hobbes.106

100 Ram P Anand, ‘Maritime Practice in South-​East Asia until 1600 AD and the Modern Law of the Sea’ (1981) 30 International & Comparative Law Quarterly 440, 442. Ram P Anand, Origin and Development of the Law of the Sea:  History of International Law Revisited (Martinus Nijhoff 1982). Ram P Anand, ‘International Machinery for Seabed: Issues and Prospects’ (1973) 13 Indian Journal of International Law 351. Ram P Anand, ‘Freedom of Navigation Through Territorial Waters and International Straits’ (1974) 14 Indian Journal of International Law 169. Ram P Anand, ‘Winds of Change in the Law of the Sea’ (1977) 16 International Studies 207–​26. Ram P Anand, ‘Peace-​time International Cooperation for the Security of the Sea Lanes of Communication in the Indian Ocean’ (1988) 25 International Studies 25–​44. Ram P Anand, ‘Recent Developments in the Law of the Sea’ (1989) 26 International Studies 247–​55. P S Rao, Public Order of the Ocean Resources (MIT Press 1975). 101 Chimni, International Law and World Order (n 23) 38. 102 Ram P Anand, ‘The UNCLOS: Compromise or Mutilation?’ (September 1994) 177 World Focus 3, cited in Chimni, International Law and World Order (n 23) 39. 103 Chimni, International Law and World Order (n 23) 38. 104 See, Carl Landauer, ‘Passage from India: Nagendra Singh’s India and International Law’ (2017) 56 Indian Journal of International Law 265–​305. 105 Prabhakar Singh, ‘Vernacular Nations: Westphalia and the Many Lives of States in Asia’ (2016) 51 Economic & Political Weekly 22. 106 ibid.

Reading RP Anand in the Post-Colony  315 In a book edited by Anand in 1972, Baxi attacked the new wave of nationalism in Indian international law in no uncertain terms, branding the nationalist efforts to invoke Indian history as ‘scholarly failings’ while condemning the taking of intellectual decolonization too far: ‘the tendency to discover the genesis of anything significant in the doctrine or development of the law of nations to Indian traditions cannot always be treated with a gentle bemusement’.107 The authoritarian working of the Indian state in the 1970s, and later the 1980s, would become the subject of the literature of protest starting to recognize new subjects such as tribal population, women and Dalits vis-​à-​vis the Indian state.108 Baxi would soon stand in opposition to Anand in matters of method, approach and subject. Anand focused on state-​sovereignty while Baxi took to people-​ centricity. Having been a student of the New Haven school, Anand knew international law to be the arena of power, politics, and policy, but this did not deter Anand’s belief in the relative autonomy of the discipline. Nevertheless, Anand, Nagendra Singh, and Alexandrowicz all rejected international law as a purely Western construct. Indian academia, therefore, was not receiving international law uncritically. In fact, much in line with the New Haven spirit, Indian scholars saw national interest as the touchstone on which to measure the worth of international law. And in that pursuit, Anand was one of India’s leading academic voices even as jurists like Guha Roy and Hidayatullah took a more radical position in the battle. In times to come, Anand and Judge Nagendra Singh would find a convergence in their approach to fight on a common front. Yet the decoupling of international law and the West at the hands of Anand on one hand and Baxi on the other is totemic of a varied origin. While the former saw international law from the top, Baxi found international law to be a construct from below; a construct by ‘not only states but also peoples’.109 In effect, Anand and Baxi represented the full spectrum of opinion on internationalism that Nehru and Judges Pal, Guha Roy, and Hidayatullah had represented around the Second World War and the decades that followed. Two ends of the spectrum, Anand and Baxi, pay tribute to the plurality of opinion that is Indian internationalism. While Anand was surgical in his approach to studying the state, Baxi remained pathological.

107 Upendra Baxi, ‘Some Remarks on Eurocentrism and the Law of Nations’ in Anand (ed), ( n 46) 6. 108 Anti-​colonial nationalism was deep-​rooted in the need to distinguish the idea of India from the West—​and Indian women from Western women. Ratna Kapur, ‘Gender, Sovereignty and the Rise of a Sexual Security Regime in International Law and Postcolonial India’ (2013) 14 Melbourne Journal of International Law fn 6. 109 Upendra Baxi, ‘What May the “Third World” Expect from International Law?’ (2006) 27 Third World Quarterly 713. Balakrishnan Rajagopal, International Law from Below:  Development, Social Movements and Third World Resistance (CUP 2003) 173.

316  Prabhakar Singh

V. Conclusion The silence of the European World War narrative on the role of Indian soldiers aptly iterates the fate of Anand in the battle for international law. The Indian soldiers in the World Wars were a divided soul; fighting for their British masters against fellow Indians. Likewise, Anand had to overcome the duality of nationalism and internationalism in his academic battles. In these big–​small battles for international law—​as against a never-​ending war—​Anand moved up the ladder as a commander from his humble start as a foot soldier. From his earlier concerns about the attitude to international law of the Afro-​Asia countries, Anand saw the Law of the Sea negotiations as a potential for the inclusion of the voices of Afro-​Asian states. While Anand might have won certain battles in his lifetime, the war of international law is far from over.110 Yet, while the early Western scholars thought Anand’s international law was aligned with the uncritical acceptance of the world legal order, today Anand is cited as part of introduction to international law’s leading texts.111 What has changed between then and now? Today the mainstream view of the discipline has moved towards appreciating the role a third-​world approach has played in exposing the doctrinal and theoretical biases of international law. Celebratory and co-​optive attitudes aside, Western international lawyers have begun to approximate the nuance of Anand’s temporality only now. In India, where the attitude of the government on international law has been more British than Asian, Anand’s importance is increasingly recognized. The Indian Ministry of External Affairs notes that Anand is one of the ‘several lawyers, jurists and intellectuals who have played an important role in the fight against colonialism, apartheid and global economic inequality as also in providing a developing world perspective to the discourse of International Law and Human Rights’.112 This is a rare feat, as seldom do purely academic publicists receive governmental recognition in India. Governmental appointments in India sit between the Scylla 110 Sundhya Pahuja, ‘The Postcoloniality of International Law’ (2005) 46 Harvard International Law Journal 459. S G Sreejith, ‘An Auto-​Critique of TWAIL’s Historical Fallacy: Sketching an Alternative Manifesto’ (2016) 38 Third World Quarterly 1511–​30. 111 Anand, ‘Role’ (n 11) is Anand’s most cited paper. Peter Malanczuk, Akehurst’s Modern Introduction to International Law (7th edn, Routledge 1997) 9; See also Anne Orford and Florian Hoffmann, ‘Introduction: Theorizing International Law’ in Orford & Hoffmann, (n 12) 4; Anghie, Imperialism (n 12) 7; Jeffrey Dunoff, Steven Ratner and David Wippman, International Law: Norms, Actors, Process: A Problem-​Oriented Approach (4th edn, Aspen Publishers 2015) 3. 112 The Indian Ministry of External Affairs lists BS Murty, Judge PC Rao, PS Rao, K Krishna Rao, MK Nawaz, SP Jagota, TS Rama Rao, BR Chauhan, and Surya P Sharma, who have contributed to various aspects of International Law. See Government of India Ministry of External Affairs, ‘Indian Contribution to International Law’, accessed 12 November 2016 (hereafter ‘Indian Contribution to International Law’). Other notables in the Anand school of thought include VS Mani, who represented Nauru in Certain Phosphate Lands in Nauru (Nauru v Australia), Preliminary Objections, Judgment [1992] ICJ Reports 240, 243..

Reading RP Anand in the Post-Colony  317 of bureaucratic capture and the Charybdis of political affiliation. Unsurprisingly, Anand’s reputation as the leading scholar of international law of his time notwithstanding, he never won government nominations for international courts or other appointments for the UN. The closest he came to the international bureaucracy was working as a legal consultant to the UN Secretary General on the matter of the Law of the Sea. Moreover, Anand did not publish most of his books with any major academic presses unlike his contemporary social scientists in India. While his articles appeared in the world’s leading journals, he mostly self-​published his books. A product of his time, Anand, nevertheless, tried to reconcile the historical reality of colonialism with post-​war imperialism. And in his extensive publications—​ covering areas such as international law in Afro-​Asian countries, functioning of the ICJ, the NIEO, environmental law,113 and the Law of the Sea—​Anand always saw the glass half full—​an attitude that was truly remarkable. But for Anand, international law would have remained a much more peripheral discipline in India than it is today. A feature of Anand’s works was also a conscious effort to amalgamate and engage with scholarship from South Asia. While doctrinal rigour and conceptual appetite for testing the universality of international law through the prism of the Asian states were the early Anand’s hallmark, the latter Anand found the Law of the Sea as the most important area for his doctrinal navigation. For post-​colonial lawyers, Anand was not just a publicist and a teacher, but an institution.

113 Ram P Anand, ‘Development and Environment: The Case of the Developing Countries’ (1980) 20 Indian Journal of International Law 1.

14

Taslim Olawale Elias From British Colonial Law to Modern International Law Carl Landauer

I.  Introduction In 1962, two years after Nigeria’s independence, the eminent Nigerian lawyer, Taslim Olawale Elias, published British Colonial Law: A Comparative Study of the Interaction between English and Local Laws in British Dependencies.1 Admittedly, as Mark Toufayan pointed out, it was ‘partly written during the previous era’.2 Although Elias is identified on the title page as Nigeria’s Federal Attorney-​General and Minister for Justice, the book is almost entirely stuck in the colonial past. The sharpest reference to independence is in the jacket copy: ‘The advent of self-​government, if anything, enhances the importance of this work[,]‌for the legal systems of the former colonies are being developed on the firm basis of British colonial law’. Because it is deeply engaged in British colonial law as it stood after the advent of Nigerian independence, Elias’s book poses a mystery that can be solved via a foundational perspective for Elias. This chapter works through his book and tries to explicate British colonial law’s twin elements of English law and customary law, and the importance that Elias places on traditional customary law. It works through Elias’s dedication to the social sciences in the study of law and explores his essential scientism and his view as to how law functions, its role in social ordering, and its relation to social progress. Based on Elias’s position and his vision of international law, particularly in his 1972 volume, Africa and the Development of International Law, with its chapter on ‘Modern International Law’, in 1998, James Thuo Gathii identified Elias with the ‘weak tradition’ of third-​world international legal scholarship.3 And, indeed, Elias’s writing does not carry Bedjaoui’s radicalism expressed in Towards a New

1 Taslim O Elias, British Colonial Law: A Comparative Study of the Interaction between English and Local Laws in British Dependencies (Stevens 1962) (hereafter Elias, British Colonial Law). 2 Mark Toufayan, ‘When British Justice (in African Colonies) Points Two Ways:  On Dualism, Hybridity, and the Genealogy of Juridical Negritude in Taslim Olawale Elias’ (2008) 21 Leiden Journal of International Law 377, 395. 3 James T Gathii, ‘International Law and Eurocentricity’ (1998) 9 European Journal of International Law 184. Carl Landauer, Taslim Olawale Elias In: The Battle for International Law: South-North Perspectives on the Decolonization Era. Edited by: Jochen von Bernstorff and Philipp Dann, Oxford University Press (2019). © The Several Contributors. DOI: 10.1093/oso/9780198849636.003.0015

TO Elias: Colonial to Modern Law  319 International Economic Order.4 Even if Bedjaoui’s book was published by UNESCO and Bedjaoui, like Elias, would serve on the International Court of Justice (ICJ), Elias was truly the insider’s insider. In fact, in the preface to his book on the Vienna Convention on the Law of Treaties, Elias describes the centrality of his personal effort in managing a compromise between the West and the rest that saved the entire convention at the very end of the conference.5 And yet, he saw himself as doing more than pushing for newly independent nations having a seat at the table. He was after a ‘modern international law’—​a vision of law that he drew primarily from British and American scholars like Wolfgang Friedmann, Philip C Jessup, C Wilfred Jenks, and Richard Falk. Ultimately, however, what looks like an anachronistic argument in British Colonial Law assists in understanding his way not only of calling for a ‘modern international law’ that clearly bears the imprint of Jenks’s ‘common law of mankind’,6 but also infuses international law with the ‘customary’ or ‘traditional’ law of former colonies.

II.  British Colonial Law and the shelf-​life of colonial law As mentioned, Elias’s British Colonial Law seemingly poses a bit of a mystery as it was published two years after his nation’s independence and joining the United Nations (UN). Regarding the advent of independence, Robert July suggests that ‘[i]‌n Nigeria, as airliners left bulging with former rulers, it was less their departure than an empty craft standing to one side, almost unnoticed, that embodied the moment’s true significance—​the plane that was to carry Prime Minister Abubakar Tafawa Balewa to New York, where Nigeria would take its place as the ninety-​ninth member state in the United Nations Organization.’7 If Elias was not on that particular plane, he would have been deeply involved. So the question remains why Elias published British Colonial Law in 1962. Admittedly, several of the chapters had appeared as earlier articles and the footnotes seem to run up to 1960, and not beyond. Still, independence had been imminent in the period prior to 1960, so

4 Mohammed Bedjaoui, Towards a New International Economic Order (Holmes Meier 1979). 5 Taslim O Elias, The Modern Law of Treaties (Oceana Publications 1974) 7 (hereafter Elias, Modern Law of Treaties). I thank Matt Craven for mentioning this case of self-​congratulation by the understated Elias of the earlier books. In Modern Law of Treaties, Elias even calls his book the ‘first systematic and the most detailed study of the subject by an “insider” ’, 8. It was with Elias’s status as an insider’s insider in mind that I entitled a section of my earlier article on Elias ‘Pan-​Africanism and the Pan Am Flight Bag’. Carl Landauer, ‘Things Fall Together: The Past and Future Africas of T.O. Elias’s Africa and the Development of International Law’ (2008) 21 Leiden Journal of International Law 351, 369–​73. The biography provided in the book of essays in his honour shows an astounding number of important professional and international legal activities before his induction into the ICJ in 1976. Emmanuel G Bello and Bola A Ajibola (eds), Essays in Honour of Judge Taslim Olawale Elias (Martinus Nijhoff 1992) xv–​xx. 6 Clarence W Jenks, The Common Law of Mankind (Stevens 1958) (hereafter Jenks, Common Law). 7 Robert W July, An African Voice:  The Role of the Humanities in African Independence (Duke University Press 1987) 14–​15.

320  Carl Landauer it is not as if the book’s proofs lay on his desk as he attended to state business and flew around the world. Indeed, British Colonial Law is a comparative study of the international application of colonial law—​stretching from the West Indies through Sub-​Saharan Africa to Southeast Asia—​and, as it turns out, Elias seems to reflect colonial law as a current status even for nations that achieved independence earlier than Nigeria. Significantly, Elias asserts in one of his rare references to independence that ‘Political independence may predispose some nationalist leaders to want to wipe the legal slate as clean as possible, in an attempt to assert new-​found freedoms and to disown the “colonial” past’.8 Clearly, Elias has an agenda in focusing as he does on colonial law. After clarifying that the law of a colony is not colonial law, Elias declares, ‘We venture to suggest that colonial law is the body of principles consisting partly of Imperial legislation and colonial enactments and partly of all applicable English law and local customary law throughout the British colonies.’9 Elias’s true subject is the complex relationship between English law as applied in the colonies and indigenous customary law. Indeed, this twinned legal system of colonial law, although seemingly tied to the British practice of Indirect Rule—​the co-​opting of traditional governing units under the umbrella of colonial authorities—​is not the same. While Indirect Rule is a layering of governing authorities, colonial law rather reflects two legal systems working side by side on two different legal realms, with courts having differing areas of competence. Throughout the 1950s, Elias published numerous books on Nigerian customary law, including Nigerian Land Law and Custom in 1951 and Groundwork of Nigerian Law in 1954.10 In those studies, he sought to establish—​simultaneously for British and African audiences—​both the vitality and importance of Nigerian customary law that had its own realm separate from English law as applied in Nigeria. As Elias explains at the beginning of his first chapter of Groundwork, when English law was first introduced into Nigeria in the nineteenth century, ‘it did not at the same time abolish such local laws and customs as were found to be good’.11 There are specific areas, such as land law and marriage, where customary law is most important. Nevertheless, there are many areas of overlap. Elias wrote that ‘our law of contract’ with its focus on commercial activity, means that ‘contracts of agency, suretyship, carriage and personal service abound to the almost total exclusion of other types normally found in English law’.12 But he starts his chapter on contracts in Groundwork by stating that although English law is ‘predominant’, there is a place also for customary law, which because of its lesser role would follow his explication 8 Elias, British Colonial Law (n 1) 134. 9 ibid 6. 10 Taslim O Elias, Nigerian Land Law and Custom (Routledge & Kegan Paul 1951); Taslim O Elias, Groundwork of Nigerian Law (Routledge & Kegan Paul 1954) (hereafter Elias, Groundwork). 11 ibid 3. 12 ibid 206.

TO Elias: Colonial to Modern Law  321 of English law.13 In British Colonial Law, where Elias transits from his Nigerian analysis to a comparative analysis of the entire law of British dependencies, he explains that the supreme court or court ordinances basically read almost identically, citing typical language: ‘Nothing in this Ordinance shall deprive the courts of the right to observe and enforce the observance, or shall deprive any person of the benefit of any native law or custom not being repugnant to natural justice, equity or good conscience’.14 For Elias, customary law is law with its own courts. Regarding its status as law, Elias defends customary law against the Austinian definition of law as enforceable. In Groundwork, he explains that there may be a difference between customary law, which is deemed binding, and ‘mere custom’, which only has moral binding effect. And, rather than refute Austin directly in 1954, he suggests that customary law’s inclusion in Nigerian law has ‘greater plausibility than is the inclusion of custom in the sources of the law of a much more developed system like the English which, according to the Austinian analysis, sets no store by custom as law’.15 In addressing the validity of customary law as law in British Colonial Law, he asks, ‘Is customary law then law in the strict sense?’ For him, it hinges on the question as to whether judges can make law, and he answers that ‘[t]‌here can be little doubt nowadays that most jurists will agree to ascribe to judges a more creative role [than] would have been conceded to them a generation ago’.16 For Elias, it is clear that customary law—​as he will argue regarding customary international law—​easily faces the Austinian challenge. And he tells us that the ‘investigator must remember from the outset that there is a clear distinction to be made between law and custom’ and should look to determine ‘whether the particular practice is recognised by the majority of the local community as binding on all and sundry, or whether it is merely conventional or permissive’.17 The standard Elias cites repeatedly is that ‘the British State practice has invariably been to respect the indigenous system of observed customary rules or, at least, as many of these as are not “repugnant to equity, justice and good conscience” ’.18 Furthermore, regarding the application of natural justice, he declares that ‘[i]‌n the sphere of legislation, it has been used to abolish such obnoxious practices as witchcraft, slave-​dealing and slavery, trial by ordeal, destruction of twins, and the like’.19 But he then explains that definitions are not always easy. In fact, it is ‘easier by legislation to abolish witchcraft than to define it’.20 The question is whether Elias 13 ibid. 14 Elias, British Colonial Law (n 1) 102. 15 Elias, Groundwork (n 10) 12. 16 Elias, British Colonial Law (n 1) 119. 17 ibid 276. 18 Elias, Groundwork (n 10) 5. 19 Taslim O Elias, Government and Politics in Africa (first published 1961, 2nd edn, Asia Publishing House 1963) 129–​30 (hereafter Elias, Government and Politics). 20 ibid 130.

322  Carl Landauer is replicating an essentializing of the African as having ‘repugnant’ traditions. In British Colonial Law, Elias repeats the litany:  ‘Another common feature is that nearly all colonial criminal codes provide for the abolition of certain barbarous or obnoxious practices like witchcraft, killing of twins at birth, trial by ordeal’.21 Basically, Elias has broadened the coverage of the rule from Africa to the entire British colonized world. So rather than essentializing the African, the question becomes whether he is reflecting a broader image of the ‘primitive’. Elias does not merely dwell on ‘repugnant’ traditions. In British Colonial Law, he criticizes a court in its denying justice to an accused for mistakenly killing an individual with a hatchet whom he believed to be ‘a dangerous evil spirit which was widely assumed among members of his community to take the shape of a small-​ footed dwarf ’—​in his deft language, Elias writes that ‘the occasions must be infrequent when this species of reasoning is adopted as a criterion in the trial of illiterate and simple persons like the accused in this case’.22 He is quick to add, however, that ‘patently obnoxious superstitions like the practice of ritual murder cannot reasonably be expected to be condoned by any worthwhile body of criminal law’.23 In the first instance, Elias is sympathetic with a benighted soul, but bringing up such examples is rare for him—​and magical thinking is simply not prominent in his writing, as it was for some social anthropologists. Rather, Elias was trying to press the importance of customary law as law and bestow it proper dignity. True, there are differences between the traditions of colonized peoples and Europe. He tells us that ‘British colonial courts are enjoined to recognise polygamy, which is the usual form of customary marriage in practically all the colonies’,24 which does not mean he condoned it, referring to the ‘growing awareness of the evils of polygamy among the rising generation of educated youth’.25 Despite his invocation of the great empires of the African past with their treaties and trading, Elias sees the Europeanization of the colonial world as bringing ‘increasingly complex economic and industrial activities’ and requiring ‘an up-​to-​date and internationally valid body of law capable of meeting the new needs’—​namely English law.26 Still, in Groundwork, Elias bemoans the attitude of English-​trained Nigerian lawyers who were suffering from ‘what the psychologists call “inferiority complex” ’ and ‘say, though not explicitly, that since customary law is not what one goes to England to study, it has neither the dignity of “civilised” law nor the prestige of authority’.27 Elias’s use of scare quotes is telling.



21 Elias, British Colonial Law (n 1) 150. 22

ibid 194–​95. ibid 196. 24 ibid 110. 25 Elias, Groundwork (n 10) 286. 26 Elias, British Colonial Law (n 1) 142. 27 Elias, Groundwork (n 10) 365. 23

TO Elias: Colonial to Modern Law  323 Eric Hobsbawm and Terence Ranger’s Invention of Tradition has generated much use of that term,28 although they did not invent the ‘invention of tradition’. For example, in 1965 Pierre L van den Berge asserted, ‘Only recently are we experiencing the explosion of the myths of Africa as a primitive, unchanging, ahistorical, isolated continent, fragmented into a multiplicity of self contained, mutually antagonistic, but internally stable and harmonious “tribes”.’29 Elias talks about the complexity of customary law and its dynamism and change. In addition, he tends to avoid references to the freighted term ‘tribal’, in part because he seeks a more complicated picture of customary law. A rare example is his observation in British Colonial Law that ‘in the British African territories, Malay, Fiji and other Pacific Islands, the systems of landholding are still largely customary; while, in such cosmopolitan or detribalised territories as Singapore city, Hong Kong, and most of the British West Indies, land rights and usages approximate to those of individual ownership’.30 Putting aside the topos of the ‘primitive mind’ of Lucien Lévy-​Bruhl31 as well as the holistic depiction of indigenous cultures of the early Bronislaw Malinowski and early functionalists, such as Alfred Radcliffe-​Brown, many specialists of importance to Elias, as well as Elias himself, did not envision a static anterior society prior to the advent of colonization. And he says quite forcefully in Government and Politics that ‘African life should be taken seriously, and no longer regarded as a museum object to delight European fancies’.32 In Government and Politics, Elias does explain that ‘the African mechanism for the assurance of orderly social existence has been firmly based upon the concept of the maintenance of the social equilibrium’, and that ‘this concept is synonymous with the British constitutional principle of the Rule of Law’.33 For Elias, customary law—​like English law—​is about social ordering. Indeed, he asserts that ‘Roscoe Pound, an American, who is probably the leading jurist in the world today, has linked the administration of justice to “social engineering”.’34 Only a couple of pages after introducing Pound, he asserts that ‘[w]‌hat we now popularly refer to as the Rule of Law is the same as what European sociologists have described as the African principle of maintenance of the social equilibrium’.35

28 Eric Hobsbawm and Terence Ranger (eds), The Invention of Tradition (CUP 1983). 29 Pierre L van den Berghe, ‘Introduction’ in Pierre L van den Berghe (ed), Africa: Social Problems of Change and Conflict (Chandler Publishing Company 1965) 1. 30 Elias, British Colonial Law (n 1) 224. 31 Interestingly, Messay Kebede in his Africa’s Quest for a Philosophy of Decolonization (Rodopi 2004) uses Lévy-​Bruhl as his principal foil, showing little interest in subsequent developments in anthropology. 32 Elias, Government and Politics (n 19) 228. 33 ibid 212 (emphasis in original). 34 ibid 178. 35 ibid 181. On the importance of social engineering, see Toufayan (n 2) 394 (‘Of all extent theories considered, Elias must have been most seduced by Pound’s suggestive metaphor of law’s “social engineering” function’.)

324  Carl Landauer Despite the corollaries to the principles of European law, Elias is quite clear that English law—​as applied to Nigeria and the other colonies—​alongside customary law is not identical with English law applied in England. So, for example, Elias maintains that ‘it would seem that the specifically local character of the Act [of Settlement of 1700] and its particular historical antecedents render it unlikely that the Act of Settlement of 1700 contemplates any extension of its provisions beyond the immediate frontiers of England’.36 Similarly, he suggests that ‘there does not appear to be sufficient justification for the practice of invoking the English doctrine of Consideration or the Statute of Frauds 1677 in the courts of Asian or African colonies, if only because the underlying concepts are as alien to the peoples there as they are to nearly all continental Europeans’.37 And Elias quotes Lord Denning to the effect that ‘the common law cannot be applied in a foreign land without considerable qualification’.38 In British Colonial Law, Elias’s recognition of the variety of customary law, as well as the changes required for English common law, bring an important assertion—​that English colonial law achieves its purpose ‘by the simple recognition that there are many roads that lead to justice’.39 One of the most important elements of customary law for Elias is that it is flexible and changing, essentially transforming in the manner of common law. He makes clear that it is not following an evolutionary pattern set by Western law. In general, he refutes specific parallels between Western and customary law, for example, efforts to attribute ‘usufructuary’ interests to Nigerian land law: ‘The interest of each member of a family in the family land is neither strictly usufructuary in the Roman sense, nor is it a tenancy in common or a joint tenancy according to English land law’.40 And he criticizes those who follow Henry Sumner Maine’s notion of ‘village communities’: ‘To speak, therefore, of tribal ownership or tribal tenure is to indulge in the popular fallacy of those writers like Sir Henry Maine who see in early as in modern agricultural communities only rudimentary social organisation in which the conception of family property in land is a late arrival in history’.41 Ultimately, Elias asserted: ‘The problems of Africa are in many ways sui generis’.42 Elias recognized the ‘transition’ involved in the colonial encounter and the swift economic changes of the postwar situation. In Government and Politics in Africa, he observes, ‘Traditional societies are fast disappearing, and new and exciting societies are emerging everywhere’,43 and refers there to ‘transitional culture’.44 36 Elias, British Colonial Law (n 1) 69. 37 ibid 140–​41. 38 ibid 288. 39 ibid 17. 40 Taslim O Elias, Nigerian Land Law (first published 1951, 4th edn, Sweet and Maxwell 1971) 131 (hereafter Elias, Nigerian Land Law). 41 ibid 74 (emphasis in the original). 42 Elias, Government and Politics (n 19) 228. 43 ibid 200–​01. 44 ibid 200.

TO Elias: Colonial to Modern Law  325 Although Elias is quite attuned to the rapid changes of the time ‘when society is virtually in a state of flux’,45 he is primarily interested in demonstrating just how flexible customary law is. Rather than following Malinowski’s lead in Dynamics of Culture Change, which focuses on change driven by racial interaction, Elias instead wants his readers to understand the core flexibility of customary law itself. He approvingly quotes Chief Justice William A Osborne that ‘one of the most striking features of West African native custom, to my mind, is its flexibility’.46 Customary law, for Elias, suits the needs of the developing community by changing along with it, with the exception of Islamic law because, in his view, ‘Muslims find it easier to set aside than to modify inconvenient rules of the Shari’a’.47 Significantly, in Groundwork and British Colonial Law Elias addresses whether customary law should be codified or remain subject to the development of case law. In the former, he asserts that ‘in the present state of our knowledge, then, codification must be eschewed. If rashly undertaken, it could result in a hotch-​pot of rules neatly arranged in numbered paragraphs . . . ’.48 Rather, ‘the method of case-​law is most conducive to the healthy and flexible growth of Nigerian law’.49 And taking the broader, international perspective of British Colonial Law, Elias argues that ‘codification, even if successfully accomplished, would render customary law less customary and more artificial, far removed from the experience and comprehension of the people’.50 Elias gives as an admonitory example the Natal Code of Native Law promulgated initially in 1878 and passed into law in 1891 as ‘sufficient warning to advocates of total codification of customary law’ because it ‘ossified’ customary law.51 Elias does ponder whether the English common law and customary law in a nation should be unified or remain dual. It is posed as a question in Groundwork, but in the final paragraph of British Colonial Law, Elias argues for ‘the attainment of a fully integrated “common law” for all its citizens’, which ‘should gradually break down barriers of race and language within a colony even more quickly than through political action’.52 Elias’s project regarding customary law required, first and foremost, significant study. In Groundwork he wrote that most of the problems facing the integration of English and customary law ‘should disappear as comparative studies of local law and custom become available’.53 He devotes a subsection of 45 ibid 201. 46 ibid 206, quoting Lewis v Bankole [1909] 1 NLR 82, 101‒02. 47 Elias, British Colonial Law (n 1) 126. Additionally, he talks of indigenous law where Islamic law has been introduced from the outside; 116. 48 Elias, Groundwork (n 10) 364. 49 ibid. 50 Elias, British Colonial Law (n 1) 280. 51 ibid 280–​81. 52 ibid 299. 53 Elias, Groundwork (n 10) 7.

326  Carl Landauer a chapter to list a number of vital textbooks and monographs, including one by prominent anthropologist CK Meek.54 In Government and Politics in Africa, he argues: The most urgent aspect of reform is for the curriculum of the legal education of future African lawyers to be reorganised in such a way as to include a scientific study of the various bodies of customary law, their interaction with English law in different aspects, and the undoubtedly large areas where reconciliation or supersession is demanded in the interest of social and economic advance.55

Indeed, ‘[o]‌nly a systematic course of training in the intricacies of legal science and in comparative jurisprudence, over and above the usual run of subject courses, would equip the African lawyer for the novel task confronting him in his society’.56 And Elias devotes an entire chapter to ‘The Participation of the Institutes of Social, Cultural and Legal Studies in the Development of Africa’,57 in which he points particularly to the International African Institute (of which he was a member starting in 1949) and the Rhodes-​Livingstone Institute for Social Research. In this context, it is interesting not only that Elias became a member of the International African Institute in 194958 but also that Malinowski wrote on the role of the institute in his article on ‘Practical Anthropology’, which was published in institute’s journal Africa in 1929.59 In British Colonial Law, Elias argues for the need for colonial courts ‘to adopt the comparative approach to their legal problems’.60 Regarding customary law itself, Elias writes, ‘Many errors and prejudices about customary law, it would seem, have first to be got rid of by patient study and research as well as careful analysis and exposition of its real nature’.61 Full of calls for study and research, its final chapter ‘Codification, Legal Education and Legal Research’ recommends anthropological fieldwork, the distribution of questionnaires, and the analysis of the case records of native courts.62 Customary law, he believes, must be prominent in legal education, and he bemoans the fact that ‘[a]part from those colonial students and others who are able to offer Roman-​Dutch Law or Hindu and Mohammedan Law either at a British University or at the Council of Legal Education, practically all the other colonial students have to pass through exactly the same process and

54 ibid 30. 55 Elias, Government and Politics (n 19) 209. 56 ibid. 57 ibid 226–​37. 58 Bello and Ajibola (n 5) xvii. 59 Wendy James, ‘The Anthropologist as Reluctant Imperialist’ in Talal Asad (ed), Anthropology & the Colonial Encounter (Ithaka Press 1973) 51. 60 Elias, British Colonial Law (n 1) 8. 61 ibid 121. 62 ibid 271–​92.

TO Elias: Colonial to Modern Law  327 cover precisely the same syllabus as would English students, for whom the courses and general training have been ideally designed’.63 The decades-​long internal self-​critique of social anthropology has framed it as a tool in the toolbox of the colonial as well the neo-​imperialist enterprise.64 A fair amount of the critique involves an attack on the functionalist mode of social anthropology, so that Gutorm Gjessing’s essay among among the critical essays published in Current Anthropology65 in 1968, attacked the ahistorical approach of the likes of Radcliffe-​Brown as well as the anti-​historical approach epitomized by Malinowski. The case against various iterations of functionalism was that it envisioned cultures as holistic organisms. If Malinowski in Methods of Cultural Contacts in Africa in 1938 viewed Africa from the perspective of a contemporary changing society, he believed, as Georges Balandier noted, that he was able to gauge social change ‘from a “zero point” which would define the conditions of social equilibrium before the intervention of Europeans’.66 Interestingly, Balandier was writing roughly contemporaneously with Elias’s British Colonial Law and turns to Max Gluckman’s devastating critique of Malinowski for the mixing of objective and subjective history in his postulation of an anterior culture.67 Elias had been a Simon Research Fellow (dedicated to studies in social science) at Manchester University from 1951 to 1953, Manchester being the home of Max Gluckman’s Manchester School of Anthropology. And although Gluckman would part ways from Fortes and Evans-​Pritchard, he wrote one of the chapters of their famous 1940 tome African Political Systems, which was published by Oxford University Press for the International African Institute. Significantly, the book makes multiple appearances in Elias’s effort to study customary law—​and he sticks with them. Even in his 1972 Africa and the Development of International Law, he began sentences with ‘As Fortes and Evans-​Pritchard have observed . . . ’,68 and ‘As Fortes and Evans-​Pritchard have put it . . .’.69 If anything, he regrets the fact that ‘[u]‌nfortunately, African Political Systems has little to say, apart from the chapter on the Tallensi by Fortes, about the political organisations of West African societies’.70 There is much in African Political Systems that is dynamic and diachronic—​and not 63 ibid 290. Elias does insert a footnote—​and provide a hint regarding the timing of his text or at least of that chapter—​that ‘in 1960, the Council of Legal Education in England introduced African Law as a subject at the Bar Examinations. It has already been instituted as a subject for the London University LL.M. degree examination since 1957’; ibid. 291. 64 See, for a series of essays on the critique, Talal Asad (ed), Anthropology & the Colonial Encounter (Ithaka Press 1973). 65 Gutorm Gjessing, ‘The Social Responsibility of the Social Scientist’ (1968) 9 Current Anthropology 397, as described by Peter Forster, ‘Empricism and Imperialism: A Review of the New Left Critique of Social Anthropology’ in Asad, Anthropology & the Colonial Encounter (n 59) 25. 66 Georges Balandier, ‘The Colonial Situation’ in Berghe, Africa (n 29) 36, 43–​44. 67 ibid 44. 68 Taslim O Elias, Africa and the Development of International Law (Sijthoff 1972) 37 (hereafter Elias, Africa and the Development of International Law). 69 ibid 39. 70 Elias, Government and Politics (n 19) 118–​119.

328  Carl Landauer merely as a result of the colonial encounter. In his chapter on the Tallensi, Fortes sees a constant cycle upsetting equilibrium: ‘This does not mean that Tale society was ever stagnant. Tension is implicit in the equilibrium’.71 Perhaps more significantly, some of the African societies under study were just not that old. Audrey Richards, for example, asserts that ‘In South, Central, and to a lesser extent East Africa most of the ethnic groups now known as tribes have a surprisingly short history of occupation of their present habitat—​rarely more than 200 years and sometimes as little as 50 to 100’, and she describes small lineage groups ‘either split off from a parent stem in search of independence and new territory, or scattered by the onslaught of an enemy’.72 Evans-​Pritchard is particularly good at placing politics within economy and geography, describing the seasonal cycle in which ‘[a]t the end of the rains, the people burn the grasses to provide new pasture and leave their villages to reside in small camps’; essentially, distinct units coalesce for part of each year.73 It is unsurprising that Elias was drawn to Fortes and Evans-​Pritchard’s book, and to books by its contributors Gluckman and Schapera.74 With Elias’s commitment to the flexibility and dynamism of customary law and its interaction with society as a whole, it is understandable that Fortes and Evans-​ Pritchard represented such a powerful presence in his writing. Yet, it is interesting that Radcliffe-​Brown—​from whose work Fortes and Evans-​Pritchard represented the next step—​wrote the preface. Even more so, Lord Hailey—​who after his career in India wrote his massive study of Sub-​Saharan Africa under the auspices of the Royal Institute of International Affairs—​provided the preface for Meek’s comparative study of colonial land law. Of note here is that, despite common calls to separate the government anthropologists from the purely academic,75 Hailey’s 1956 revision of his massive volume is cited repeatedly not only in writings on Africa, but also in Elias’s books. Elias hardly distances himself from such a central figure in the colonial framing of Africa. Adam Kuper, in his book on British anthropology, uses an epigraph to begin the chapter ‘Anthropology and Colonialism’. The epigraph describes a painting in the anteroom of the founding leader of Ghana, Kwame Nkrumah, depicting Nkrumah struggling against the chains of colonialism and dispersing three fleeing men, one of whom is carrying a copy of African Political Systems.76 Installed by a 71 Meyer Fortes, ‘The Political System of the Tallensi of the Northern Territories of the Gold Coast’ in Meyer Fortes and Edward E Evans-​Pritchard (eds), African Political Systems (OUP 1940) 239, 271. 72 Audrey I Richards, ‘The Political System of the Bemba Tribe: North-​Eastern Rhodesia’ in Fortes and Evans-​Pritchard, African Political Systems (n 71) 83. 73 Edward E Evans-​Pritchard, ‘The Nuer of the Southern Sudan’ in Fortes and Evans-​Pritchard, African Political Systems (n 71) 272, 73. 74 Interestingly, Elias, in comparing Schapera’s work to others, states that his ‘appears the more valuable in supplying the sociological background to the customary law’; Elias, British Colonial Law (n 1) 282. 75 See, for example, Adam Kuper, Anthropologists and Anthropology: The British School 1922–​1972 (Pica Press 1973) 123–​49. 76 Kuper (n 75) 123, citing Johan Galtung, ‘Scientific Colonialism’ (1967) Transition 10, 30.

TO Elias: Colonial to Modern Law  329 man who did doctoral work in anthropology at LSE, the painting clearly identifies the British anthropologist (placed alongside symbolic figures of the capitalist and the missionary) as a key antagonist to the new Africa. But that was hardly the case for Elias, who was deeply embedded in social science in the British tradition applied to law. His work generally elides the magical thinking that appears in some of African Political Systems, but his modernist legal thinking is deeply committed to a social science framing of law and to infusing the special African customary legal tradition characterized by its flexibility and its closeness to African life into the progress of African law. He brings all of the social anthropological study into his Poundian progressive social ordering.

III.  The modernization of international law How, then, does Elias’s British Colonial Law—​with its present-​tense setting of the law of (mostly past) British dependencies and with little reference to their independence or emerging independence—​bring us to his international law? How should we follow him from his vision of the colonial world to his views of international law, as expressed most poignantly in the essays of Africa and the Development of International Law? The emphasis here is that, in Elias’s inaugural lecture as Dean of the University of Lagos’s Faculty of Law in 1969, Elias spoke very much in line with his earlier views of English-​based common law and customary law, and it is important to note its title, ‘Law in a Developing Society’.77 In that lecture, Roscoe Pound assumes a prominent role. If mentioned alongside Hohfeld and various American legal realists in the footnotes of the published version, Pound is particularly important for his ‘school of sociological jurisprudence which prescribes for law the task of “social engineering” ’.78 But Elias also wants to underscore the place of morality. In a section of the lecture devoted to ‘The Elevation of Man’s Moral Nature’, Elias turns to HLA Hart and quotes him to the effect that ‘[t]‌he law of every modern state shows at a thousand points the influence of both the accepted social morality and wider moral ideals’.79 But Elias is careful even in over-​characterizing Hart’s position, so he adds in his footnote: ‘Hart’s analysis is, of course, more subtle than this, but we cannot enter into that here.’80 Drawing from WH Twining’s 1967 Law Quarterly Review article ‘Pericles and the Plumber’, which he mentions alongside Pound, Elias asserts at the end of his lecture that the 77 Taslim O Elias, Law in a Developing Society: Inaugural Lecture Delivered at the University of Lagos on 17 January 1969 (University of Lagos 1969) (hereafter Elias, Law in a Developing Society). 78 ibid 5. 79 HLA Hart, The Concept of Law (Clarendon Press 1961) 199, quoted in Elias, Law in a Developing Society (n 77) 21. 80 Elias, Law in a Developing Society (n 77) 21, fn 6. Hart, of course, took the positivist side of a prolonged positivist-​natural law struggle with Lon Fuller highlighted by their debate in the Harvard Law Review in 1958.

330  Carl Landauer prevailing social and economic forces call for a type of lawyer who is at once a social engineer and an analyst, a Pericles and a plumber, capable of appreciating the values of existing institutions and mores and yet ever ready to make a dynamic contribution to the maintenance of proper balance between the need for stability and the need for change, between the claims of the State and those of the individual’.81

In turning to international law, Elias is also a social engineer and analyst. James Thuo Gathii, who had identified Elias within the ‘weak’ tradition of third-​ world international legal scholars, describes him ‘as one of the first among African scholars of international law in exposing the Eurocentricity of international law and in advancing corrective measures’, and Elias ‘uses the anthropological research and work of Meyer Fortes and E. E. Evans-​Pritchard to show that African states and kingdoms had sovereigns just like European states’.82 For Gathii, Elias has made a ‘brilliant move’ in being able to transition from African law to international law: ‘Fully aware of the anthropological literature on African customary law showing how there was order without law, Elias juxtaposes this insight with similar insights about international law, such as Louis Henkin’s observation that most states obey international law most of the time’.83 Gathii is correct in his assessment of Elias’s move from African to international law, but it was not because neither was law. Indeed, Elias was very clear about customary law being law. When Evans-​Pritchard talked about the ‘ordered anarchy’ of the Nuer,84 he clearly viewed them essentially as an outlier or at least at one extreme in the African spectrum, and clearly separate from the other forms of political organization in the various chapters of African Political Systems. What Elias carries over from British Colonial Law is his scientism and his notion of law’s role in social ordering—​at once reflecting and advancing the social order. It was with that background that Elias wrote so forcefully about the move in international law from consent to consensus and places the new states at the helm of international legal development. And, similarly, it was behind his seeing international law in Jenks’s terms as ‘the common law of mankind’,85 which, for Elias, signified common law both as the shared law of humanity and the progressive evolution associated with the common law tradition, even if Elias was a good deal more committed to the codification of international law than he was in the case of Nigerian customary law. In the opening chapter of Africa and the Development of International Law, Elias makes his case for the glories of medieval African states and their commercial and 81 ibid  26–​27. 82 James T Gathii, ‘A Critical Appraisal of the International Legal Tradition of Taslim Olawale Elias’ (2008) 21 Leiden Journal of International Law, 319, 326 (hereafter Gathii, ‘A Critical Appraisal’). 83 ibid 328–​29. 84 Evans-​Pritchard (n 73) 296. 85 Jenks, Common Law (n 6).

TO Elias: Colonial to Modern Law  331 diplomatic stage of development. After referencing a ‘random selection of the medieval African empires and kingdoms,’ Elias asserts ‘the high degree of knowledge and practice of diplomatic law as then known in Europe and Asia’.86 Elias jumps from that past to the late nineteenth century, mentioning only one seventeenth-​ century treaty, so he does not adopt the position of CH Alexandrowicz, a proponent of the importance of Asia and Africa in the development of international law. Nor does he align with Alexandrowicz’s view that the parties to a treaty up until the late nineteenth century of legal positivism were formally recognized to be on an equal footing, asserting that ‘the principle of equality observed in European-​ African treaty relations under the regime of the classic law of nations’.87 For Elias, the colonial period—​although his frame also mostly begins in the late nineteenth century—​was marked by ‘unequal treaties’ between European states and indigenous kings ‘regarded or treated for all practical purposes thereafter as “chiefs” only, thus implying that they had full sovereign powers to sign treaties which ipso facto turned them into subordinates of the new sovereigns deemed to be recognized by the treaties in question’,88—​the same unequal treaties that assume a central role in Antony Anghie’s narrative of the colonial core of the making of international law.89 It is significant that in his overview of the creation of the Vienna Law of Treaties, Elias spends several pages on the Nigerian–​French dispute of 1961, in which France was claiming Nigeria to be bound by a treaty that Great Britain had signed in 1922 to allow the French detonation of atomic bombs in the Sahara. Here, Elias marshals his legal advocacy skills regarding the various ways in which Britain’s treaty should not apply, including that the subject matter of the treaty would not have been relevant to Western Africa in 1922, and, alternatively, ‘[e]‌ven assuming that Nigeria could be presumed to be a party to the treaty in virtue of Great Britain’s conclusion of it with France in 1922, Nigeria is entitled to abrogate it as an act [of] reprisal under customary international law’.90 Matthew Craven describes Elias as taking a middle position in the 1963 International Law Commission’s debate over whether universal succession or tabula rasa applied to the large numbers of recently independent states, asserting that what was needed was careful study of the policies of the relevant states and depositaries.91 Certainly, Elias was quite comfortable in making his case for Nigeria in the dispute with France and was able to use various tools in the international legal toolbox. The new state could make a strong case without resorting to a strong tabula rasa position.

86 Elias, Africa and the Development of International Law (n 68) 15. 87 Charles H Alexandrowicz, ‘The Partition of Africa by Treaty’ in Charles H Alexandrowicz, The Law of Nations in Global History (David Armitage and Jennifer Pitts eds, OUP 2017) 239. 88 Elias, Africa and the Development of International Law (n 68) 19. 89 Antony Anghie, Imperialism, Sovereignty and the Making of International Law (CUP 2007). 90 Elias, Modern Law of Treaties (n 5) 64. 91 Matthew Craven, The Decolonization of International Law: State Succession and the Law of Treaties (OUP 2007) 99.

332  Carl Landauer During the colonial period, Elias describes the ‘metropolitan Powers [as] the exclusive or active parties’ in the realm of customary international law while ‘the African dependencies were mere spectators at the game’.92 But Elias is concerned with much more than merely setting a place at the table for the newly independent states. Rather, he makes a case for the move from a consent model law to a consensus model of international law, and in the move to consensus, the sheer number of states from Asia, Africa, and Latin America means that the traditional European powers along with the United States (US) could not easily have their way in the development of international law. Thus, the opening chapter of Africa and the Development of International Law ends by asserting that ‘[i]‌ndependence has led to membership of the United Nations and its organs and the consequent widening of the international horizon of all member nations, resulting in the establishment of new institutions and processes and in the enlargement of participation in the making and development of contemporary international law’.93 After arguing that ‘modern international law must be based on a wider consensus’, Elias ends by asserting that vision of modern international law as fact, stating that ‘[t] here is already emerging an “international law in a changing world”. The contribution which the third world in general and Africa in particular, is making to contemporary international law will in time increase both in quality and in quantity especially within the framework of the United Nations’.94 As argued elsewhere, Elias was not really establishing the African, as opposed to the more general third-​world, imprint on international law.95 Although Elias in that same paragraph asserts that the modern international law ‘must be a reflection of the principal legal systems and cultures of the world’, his international law does not appear ultimately to encompass various cultural inputs. Elias was certainly engaged in emphasizing the role of African states in the future development of international law, but it is never clear what specific African content went into that development. As pivotal a position as Elias had in the launching of the Organization for African Unity (OAU),96 he does not clearly identify the 92 Elias, Africa and the Development of International Law (n 68) 21. 93 ibid 33. 94 ibid. It is important here to note that although Elias broadly adopted the appellation of ‘new states’, he did not shy away from referencing the third world. In this context, it is also interesting to see that Fatouros, in his essay in Richard Falk and Cyril Black’s The Future of the International Legal Order, in turn drawing on Pierre Hassner, lists the various uses of the ‘new nations’, often defined by discipline: ‘One may refer to: (1) Newly independent countries (historical and, it may be added, legal, approach); (2) Underdeveloped countries (economic approach—​at least in its origins); (3) Nonaligned (or neutralist) countries (political approach); (4) Afro-​Asian countries (geographical approach); and Third World countries (politico-​geographical approach, according to M Hassner, but perhaps economic and even cultural approach as well).’ AA Fatouros, ‘Participation of the “New” States in the International Legal Order’ in Richard A Falk and Cyril E Black (eds), The Future of the International Legal Order: Vol 1: Trends and Patterns (Princeton University Press 1969) 319. 95 See Landauer (n 5). 96 See, in particular, Elias’s presenting the importance of the OAU for the American Journal of International Law in the role of one of its architects, reprinted in Elias, Africa and the Development of International Law (n 68) 121–​47.

TO Elias: Colonial to Modern Law  333 specifically African element. In an early chapter of Africa and the Development of International Law, Elias writes that in large areas of Africa there had emerged broadly similar political and economic conditions and, therefore, similar rules of customary law, which makes it possible to speak of the existence of a universal body of principles of African customary law that is not essentially dissimilar to the broad principles of European law. Even today, English law and French law have merely substituted two major juridical regimes in their respective areas of provenance.97

If that particular assertion is in tension with Elias’s more general framing of the relation between indigenous customary law and English common law, it is important here to recognize that Elias’s international law with the emerging role of the new states does not mirror the basic dichotomy of indigenous customary/​English common law combination so important to his earlier work. In The Changing Structure of International Law, Wolfgang Friedmann sets out two parallel concepts where international law is ‘divided between an international law of coexistence and an international law of co-​operation’ in which there is simultaneously a ‘horizontal extension of international law to non-​Western civilisations’ and ‘political and ideological splits that divide the family of nations, a division that does not correspond to that between the Western and the non-​ Western nations’.98 At the start of a chapter with its sections ‘Latin American Attitudes’, ‘Islamic Legal Values and International Law’, ‘Hindu Philosophy and International Law’, ‘Chinese Civilisation and International Law’, and ‘The Modern State Practice of Asian States’—​note the absence of absence of a section on African, or at least Sub-​Saharan African states—​Friedmann asserts that ‘[a]‌s long as we fail to make this distinction, as long as we regard the whole field of international law without differentiation, as a general problem of universal order, or international anarchy, it is not possible to view the problem of universality in proper perspective’.99 But he is positive about the pull of coexistence because the ‘conditions of coexistence, in a world dominated by the national state and national sovereignty, have proved a far stronger factor than the historical diversities of culture, religion, and political ideology’.100 Elias, despite his deep knowledge of African society and politics as well as the very title of Africa and the Development of International Law, does not truly set out an African international law that differs much from the perspective of the other new states around the world as part of a broader international society.



97

ibid 43. Wolfgang Gaston Friedmann, The Changing Structure of International Law (Stevens 1964) 297. 99 ibid. 100 ibid. 98

334  Carl Landauer Elias’s chapter on ‘Modern International Law’ begins by attacking the ‘cult of political sovereignty’, and sets out what he sees as the ‘three-​dimensional character’ of modern international law, that is, ‘its encompassing the whole range of relations between states and states, between states and individuals (including institutions) and between two or more international institutions’.101 This was a set piece of progressive international lawyers throughout the twentieth century. Significantly, Elias’s next move is to cite the four sources of international law referenced in Article 38 of the Statute of the ICJ—​which have born so much of the brunt of third-​world criticism over the years for their clear Eurocentrism. He turns them almost on their head by moving directly into the discussion of international institutions, starting with the International Law Commission, asserting that ‘[p]‌robably the most significant developments in public international law have been due to the work of the International Law Commission’.102 And he gives most prominence to the ‘General Assembly and Security Council Resolutions as Sources of Law’, in which the Security Council strikingly receives a single paragraph in the six-​page section. Essentially, the UN General Assembly (UNGA) is where the action is. In the first paragraph of his section on the UNGA and Security Council resolutions as sources of law, Elias identifies Article 10 of the Charter as providing the UNGA’s power to make recommendations regarding ‘any questions or any matters within the scope of the present Charter’, and he summons Hans Kelsen’s observation from his massive 1950 The Law of the United Nations to the effect that ‘there is hardly any international matter which the General Assembly is not competent to discuss and on which it is not competent to make recommendations’.103 Elias goes from there, with a diversion into the ‘tangled web of Soviet theories’ and a discussion of Czech author Vratislav Pechota and Polish jurist Manfred Lachs, who sat on the ICJ,104 to turn to some of the most progressive voices among Western international legal theorists, including Richard Falk, Wilfred Jenks, and Wolfgang Friedmann. Elias turns to Falk, who argues in ‘On the Quasi-​Legislative Competence of the General Assembly’ that ‘the formal limitations of status, often stressed by international lawyers, may not prevent resolutions of the General Assembly, or certain of them, from acquiring a normative status in international life’.105 Philip Jessup observed in 1947 the ‘slow but steady development of majority rule in international organizations’.106 If Jessup’s point, made so early in the life of the 101 Elias, Africa and the Development of International Law (n 68) 63–​64. 102 ibid 66. 103 ibid 71, citing Hans Kelsen, The Law of the United Nations: A Critical Analysis of its Fundamental Problems (Stevens 1950) 198–​99. 104 Elias, Africa and the Development of International Law (n 68) 72. 105 ibid 73, citing Richard A Falk, ‘On the Quasi-​Legislative Competence of the General Assembly’ (1966) 60 American Journal of International Law 782, 784. 106 Philip C Jessup, A Modern Law of Nations: An Introduction (Macmillan 1959) 41 (from a chapter published in 1947), citing Cromwell A Riches, Majority Rule in International Organization: A Study of the Trend from Unanimity to Majority Decision (Hopkins Press 1940).

TO Elias: Colonial to Modern Law  335 UN, was not yet focused on the role of the UNGA, but rather on the shift from state sovereignty with specific reference to the Security Council, the directional move was still towards majority rule. The reference to majority rule would lead to the way to the interpretation of UNGA ‘recommendations’ under Article 18(2) of the UN Charter as being more than mere recommendations. And that was exactly where Elias was headed, knowing that the large number of newly independent states would hold sway in the UNGA, so that he could assert that the ‘recommendations’ under Article 18(2) ‘are binding upon all concerned once they have been adopted by a two-​thirds majority’.107 Elias was not likely to make much noise about the Bandung conference held before Nigeria’s independence, but with the competence he saw in the UNGA, he was confident that power was shifting to the third world. To make his point about the UNGA, Elias draws heavily on Falk, Jenks, and Schachter, interestingly tucking The Legal Significance of the Declarations of the United Nations by Ghanaian author OY Asamoah into a footnote after Falk’s article about the ‘quasi-​legislative competence’ of the UNGA. Indeed, when Elias continues through the four sources of international law under the ICJ’s Charter with a section on the ‘publicists’, he gives particular prominence to Jessup, Jenks, Friedmann, and Falk, ‘whose contribution lies in re-​shaping and remoulding customary law as well as in recognizing the need for wider horizons in our approach to both customary and conventional international law’.108 Elias points to various publications, including Friedmann’s Modern Law of Nations (1948), Jenks’s Common Law of Mankind (1956), and Falk’s Law, Morality, and War in the Contemporary World (1963). If, according to Elias, Falk ‘sounded a liberal note at a time when men were once more tending to lose their heads over internecine strife’, it was ‘by his “New Approaches to the Study of International Law” that he has made his contribution to the subject’.109 Interestingly, Falk’s article seemingly ends with an overview of four clusters of scholars: ‘Policy Science’ headed by Myres McDougal; ‘Functionalism’ represented by Percy Corbett, Jenks, Friedmann, and Julius Stone; ‘Systems Theory’ led by Morton Kaplan and Nicolas deB. Katzenbach; and ‘Phenomenological Perspectives’ exemplified by Brainerd Currie, so that instead of picking sides, Falk identifies all of them with an effort to ‘move beyond the impressionism of earlier approaches’ to studies with ‘a scientific character’.110 For Elias, there may be certain ‘traditionalists’ fighting a ‘rear-​guard action’,111 but they were clearly on the losing side of history. For Elias, ‘modern international law’ was clearly taking root. 107 Elias, Africa and the Development of International Law (n 68) 71. 108 ibid 83. Directly before his discussion of Jessup, Jenks, Friedmann, and Falk, Elias discusses the positivists, including ‘Oppenheim-​Lauterpacht, Guggenheim and Schwarzenberger, although it must be said that the last-​named has also been a pioneer in the opening up of new frontiers of the subject’. 109 ibid 84. Richard A Falk, ‘New Approaches to the Study of International Law’ (1967) 61 American Journal of International Law 477 (hereafter Falk, ‘New Approaches’). 110 ibid 487. 111 Elias, Africa and the Development of International Law (n 68) 86.

336  Carl Landauer Elias was totally in sync with the wide range of progressive, and many relatively mainstream, twentieth-​century international legal thinkers who criticized the state-​as-​subject underpinnings of ‘traditional’ international law, even if states’ voting rights in the UNGA emboldened his vision of emerging ‘modern international law’. With his book on the Vienna Convention on the Law of Treaties, Elias could state flatly: ‘This practice has been based on an obsolete notion of the sovereign rights of States’.112 His use of the word ‘obsolete’ mirrors Richard Falk’s assertion that ‘[s]‌overeignty is as morally obsolete as it is factually inaccurate’.113 If, as mentioned earlier, Gathii saw Elias as drawing on the likes of Fortes and Evans-​Pritchard to establish that ‘African states and kingdoms had sovereigns just like European states’, Elias was more deeply engrained in the complexities of social thought regarding rights and sovereignty. Among other things, he had to deal with the federal realities of Nigeria, which were being put in place well before independence—​the tension remains in the background, with the exception of the chapter ‘The Legality of Illegal Regimes in Africa’, where he includes a rare discussion of ‘the secessionist clique in the former Eastern Region of Nigeria which called itself “Biafra” ’.114 Although Elias presses the place of individuals in international law, following others from Lauterpacht and Brierly through Friedmann and Falk, Elias particularly urges the growing interdependence of states internationally. Jessup entitled one of the subsections of his Modern Law of Nations, ‘Independence and Interdependence’, declaring that ‘each state is dependent on all other states’.115 As Falk refers to the ‘interdependence of the modern world’,116 so on the very first page of his preface to Law, Freedom and Welfare does Jenks assert ‘the emergence of interdependence rather than the independence of states as the basic concept of contemporary international law’.117 In that mode, Elias ends his chapter on ‘modern international law’ by asserting the ‘constantly changing needs of the world of today and of tomorrow, a world of growing interdependence and indivisibility that is also committed to the achievement of peace and happiness for all mankind’.118 Jenks argued that ‘[t]‌he law on these matters has given us the elements of a structure of the society of states on the basis of which we can consolidate achievements of the past and go forward to evolve a common law of mankind for a world community.’119 For him, ‘In the last analysis we are left with the moral and social 112 Elias, Modern Law of Treaties (n 5) 33. 113 Richard A Falk, Law, Morality, and War in the Contemporary World (Praeger 1963) 29 (hereafter Falk, Law, Morality, and War). 114 Elias, Africa and the Development of International Law (n 68) 107; and Elias unamibuously concludes that ‘[t]‌he attempted secession was unconstitional and invalid’; ibid. 113. 115 Jessup (n 106) 37. 116 Falk, Law, Morality, and War (n 113) 28. 117 Clarence W Jenks, Law, Freedom and Welfare (Stevens 1963) ix (hereafter Jenks, Law, Freedom and Welfare). 118 Elias, Africa and the Development of International Law (n 68) 87. 119 Jenks, Law, Freedom and Welfare (n 117) 28.

TO Elias: Colonial to Modern Law  337 nature of man as the foundation of his obligations to his fellows.’120 Despite the emphasis on the moral, this is not pure naturalism, although the push in a naturalist direction was clearly important in twentieth-​century international legal thought as a critique of positivism. Jenks asserts that the ‘will of the world community is binding because it expresses the fundamental law of our being, the brotherhood of man’.121 Later he stresses: Two areas call for specially urgent attention, the comparative study of the part in a universal legal order of the general principles of law recognised by civilised nations, with special emphasis on the importance which has now been assumed by non-​Western legal systems, and the potential contribution of internal law to the solution of the problems posed by new scientific and technological developments.122

In essence, we have the ‘civilised’—​always a freighted phrase for third-​world international lawyers123—​paired immediately with the growing importance of non-​Western legal systems. Elias spoke of the importance of the ‘increasing participation on the part of African and allied Groups’ in international organizations to arrive at ‘a progressive development and codification of international law’.124 This brings us back to Elias’s model of British colonial law, particularly of the role of customary law within it, as well as questions regarding its progressive development, its codification, and its potential fusing with English-​based common law. Elias saw customary law as law, making claims similar to Louis Henkin’s in How Nations Behave with regard to international law. Elias worried about a rush to codify customary law in Nigeria and other British dependencies because not enough knowledge about customary law had been obtained—​the social science, questionnaires, and significant case reporting still needed to be accomplished. Nevertheless, Elias was much more comfortable with the codification of international law, principally if it were flexible and progressive; essentially, the common law of humanity should retain some of the flexibility of the common law tradition. Moreover, it should reflect international society. If he turned to Pound’s concept of ‘social ordering’ in his discussion of customary law, we should remember that Friedmann asserted, ‘As the purpose of law is the ordering of social relations, every legal system must reflect the principles of the social order that it seeks to regulate.’125

120 ibid 100. 121 ibid. 122 ibid 147. 123 Elias identifies the antagonism for the term ‘civilized nations’ among the new states. Elias, Africa and the Development of International Law (n 68) 52. 124 ibid 32. 125 Friedmann (n 98) 3.

338  Carl Landauer When Elias came to write The Modern Law of Treaties, he did so having worked on its development as a member of the International Law Commission, having acted as General Rapporteur for the two sessions on the subject in 1965 and 1966, and, as he states, being ‘unanimously elected to be the Chairman of the Committee of the Whole Conference not only for the first session but also for the second session’.126 Elias takes explicit credit for preventing the conference from falling apart due to a dispute between the ‘Big Powers’ and the ‘New States’: ‘It was at this juncture on the last day but one of the Conference that a compromise solution to be found as Article 66 of the Convention and its Annex was supplied by a thirteen-​nation-​sponsored text under my leadership’.127 Elias here played the significant role of go-​between, pushing compromise between the two. Although Elias’s book proceeds through the Vienna Convention on the Law of Treaties section by section, he is explicit about some of the key political differences, such as whether the ‘threat or use of force’ would be restricted to ‘armed force’ as the Western states urged, or be open to the broader interpretation of including ‘economic and political pressure’.128 Elias clearly understood the stakes as he tried to navigate the Convention to a successful conclusion. Nevertheless, it is clear that he was a moderate in international affairs, representing a state—​Nigeria—​that assumed a non-​aligned posture while nevertheless remaining close to the West. He argued, perhaps in a lawyerly fashion, that when the OAU Council of Ministers made a decision that its member states sever relations with the United Kingdom as a response to events in Rhodesia, it simply did not have the competence to make that determination.129 Elias was a moderate and a moderator. He did not write as Bedjaoui did of ‘predatory economy’ and ‘froth and veneers of decolonization’.130 With so many current scholars, for example, Anghie and Puhuja,131 pointing to the very structural bias of international law, how do we assess Elias? As an epigraph to British Colonial Law, Elias quoted Sir Frederick Pollock: ‘Those who make no mistakes, it has been said, will never make anything; and the judge who is afraid of committing himself may be called sound and safe in his own generation, but will leave no mark on the law’. It is, perhaps, revealing that Elias saw his project as bold, and that he expressed that boldness through the voice of the eminent English jurist. But it is also revealing that he quotes Pollock, who, along with Maitland, wrote the classic two-​volume History of English Law. His choice of Pollock reflects the broad audience of his comparative study, but that Pollock is 126 Elias, Modern Law of Treaties (n 5) 5–​6. 127 ibid 7. 128 ibid 172. 129 Elias, Africa and the Development of International Law (n 68) 156. 130 Bedjaoui (n 4). 131 Anghie (n 89); Sundhya Pahuja, Decolonising International Law: Development, Economic Growth, and the Politics of Universality (CUP 2011).

TO Elias: Colonial to Modern Law  339 an historian of great eminence. The epigraph is explicitly about the courage Elias hoped his project exemplified, but implicitly about the ‘careful study’ that was one of his central refrains. And with that, he was confident in the progress of ‘social ordering’ that could be achieved both within the blended legal system of nations like Nigeria and within international law. This brings us back to Elias’s use of William Twining’s Pericles and the plumber in his address at the University of Lagos. Both are highly Western tropes, with Pericles’ ‘Funeral Oration’ serving literally as the centrepiece of The Greek Commonwealth by Alfred Zimmern, the eminent classicist who was also a liberal foil for EH Carr in his Twenty Years’ Crisis, and plumbing in a developing nation with limited plumbing. Falk asserts, ‘World order literature is often flawed by its sentimental naiveté,’132 and emphasizes the importance of new approaches that ‘bring the study of international law into ever closer association with the outlook, method, and concerns of the social scientist’.133 However, Falk also shows a strong belief in the importance of morality to international law, writing that ‘it is correct to identify this essay as being in the natural-​law tradition’.134 We see Falk, then, trying to navigate between moralism and scientism, or, rather, trying to fuse them. It is significant, then, that Koskenniemi saw Falk as the exemplar of the ‘late modern mainstream,’ which, he tells us, often situates itself between the rule and the policy approaches. In Richard Falk’s words, the task of an adequate doctrine today is to establish ‘[a]‌n intermediate position, one that maintains the distinctiveness of the legal order while managing to be responsive to the extralegal setting of politics, history and morality’.135

And Gerry Simpson has recently tried to grapple with an international law that had, for him, developed language that ‘just closes off a bit of our humanity’.136 In this context, Elias was a writer who, both in his study of colonial law and international law, embodied the scientist, repeatedly pushing for evidence and detailed study. Yet, without question, and despite his typically understated rhetoric, Elias was certainly pressing a deeply moral case. The plumber was also Pericles—​in the framework of a developing society. If Fatouros tells us that ‘[t]‌he responsible officials of the new states may not be experienced or well-​informed enough to realize 132 Richard A Falk, ‘The Interplay of Westphalia and Charter Conceptions of the International Legal Order’ in Falk and Black, The Future of the International Legal Order (n 94) 40. 133 Falk, ‘New Approaches’ (n 109) 479. 134 Falk, Law, Morality, and War (n 113) 38. 135 Martti Koskenniemi, ‘Between Apology to Utopia:  The Politics of International Law’ in The Politics of International Law (Hart 2011) 43. 136 Gerry Simpson, ‘The Sentimental Life of International Law’ (2015) 3 London Review of International Law 3.

340  Carl Landauer that the legal principles “in-​the-​books” were never intended to apply in practice, at least not to all states at all times’,137 Elias was no naïf. Rather, he was interested in using the rules in the books with the realities on the ground, both deeply analysed and contextualized, in developing what he perceived to be a ‘modern’ international law.



137

Fatouros (n 94) 343.

15

Determining New Selves Mohammed Bedjaoui on Algeria, Western Sahara, and Post-​Classical International Law Umut Özsu

I. Introduction As one of the most significant jurists to emerge from what during the Cold War was widely characterized as the ‘third world’, Mohammed Bedjaoui is a towering figure in the field of international law—​prolific as a scholar, active as a diplomat,and influential as a judge, advocate, and arbitrator. From the thorny issue of state succession to treaties during the 1960s and early 1970s to the New International Economic Order (NIEO) project of the 1970s and 1980s, from debates about the scope and content of collective self-​determination to the question of whether the threat or use of nuclear weapons is expressly prohibited by international law, Bedjaoui was positioned at the forefront of a wide range of legal controversies for the better part of the past fifty years. Alongside Georges Abi-​Saab, Bedjaoui continues to enjoy significant power as a key representative of the ‘global South’, not least because he retrospectively has been canonized as a core member of a ‘generation’ of non-​ European jurists who sought to reorient and transform international law in accordance with the political and economic imperatives of decolonization. Given the range of his influence as a scholar, arbitrator, ambassador, and diplomatic representative for Algeria, and judge of the International Court of Justice (ICJ), the expectation could be that Bedjaoui has received a significant degree of scholarly attention over the years. Interestingly, though, Bedjaoui’s intellectual and professional trajectory—​and the way in which this trajectory tracked the unfolding of the post-​1945 wave of decolonization—​has not been subject to serious and sustained examination.1 To a significant degree, this deficiency stems from the fact that there is still nothing approximating a comprehensive account of the way in which socialist and non-​aligned jurists have engaged with and attempted 1 A  notable, if predictably prosaic, exception is Emile Yakpo and Tahar Boumedra (eds), Liber Amicorum Judge Mohammed Bedjaoui (Kluwer Law International 1999) pt 1. I have situated Bedjaoui’s drive to craft a new, post-​classical international law in the context of the NIEO project in Umut Özsu, ‘ “In the Interests of Mankind as a Whole”: Mohammed Bedjaoui’s New International Economic Order’ (2015) 6 Humanity 129. Umut Özsu, Determining New Selves In: The Battle for International Law: South-North Perspectives on the Decolonization Era. Edited by: Jochen von Bernstorff and Philipp Dann, Oxford University Press (2019). © The Several Contributors. DOI: 10.1093/oso/9780198849636.003.0016

342  Umut Özsu to reconfigure the basic rules, principles, and institutional apparatuses of international law. Recent years have witnessed a surge of interest in the way in which Euro-​American models of international law have been appropriated, modified, and occasionally transformed in the extra-​European world.2 Yet no genuine history of what has come to be known as ‘Third World Approaches to International Law’ (or ‘TWAIL’) has ever been written; the movement’s intellectual history, historical sociology, and economic history exist only in fragments, limited to particular substantive issues and institutional contexts, not as a sizeable and persuasive corpus of work.3 At root, Bedjaoui belongs to a small but ambitious group of mid-​to latetwentieth-​ century jurists who hailed from Asia, Africa, and Latin America, received elite training in Europe and the United States (US) (in law but sometimes also in a second discipline, typically political science or economics), subsequently succeeded in establishing themselves as leading figures in the worlds of international legal scholarship and international dispute-​settlement, and generally maintained a somewhat uneasy relationship with the growing corpus of international human rights law that enveloped discussions in and about the United Nations (UN).4 2 From a large and rapidly expanding body of scholarship see, for example, Liliana Obregón, ‘Completing Civilization: Creole Consciousness and International Law in Nineteenth-​Century Latin America’ in Anne Orford (ed), International Law and Its Others (CUP 2006); Turan Kayaoğlu, Legal Imperialism:  Sovereignty and Extraterritoriality in Japan, the Ottoman Empire, and China (CUP 2010); Arnulf Becker Lorca, Mestizo International Law: A Global Intellectual History 1842–​1933 (CUP 2014); Lauri Mälksoo, Russian Approaches to International Law (OUP 2015); Umut Özsu, Formalizing Displacement: International Law and Population Transfers (OUP 2015). 3 A sweep of the terrain is offered in James T Gathii, ‘TWAIL: A Brief History of Its Origins, Its Decentralized Network, and a Tentative Bibliography’ (2011) 3 Trade, Law and Development 26. For a brief but helpful first-​hand account of personal experience, see Georges Abi-​Saab, ‘The Third World Intellectual in Praxis:  Confrontation, Participation, or Operation Behind Enemy Lines?’ (2016) 37 Third World Quarterly 1957 (hereafter Abi-​Saab, ‘Praxis’). Muthucumaraswamy Sornarajah, whose work offers the most prominent TWAIL critique of international investment law, has done the same in Muthucumaraswamy Sornarajah, ‘On Fighting for Global Justice:  The Role of a Third World International Lawyer’ (2016) 37 Third World Quarterly 1972. For a similarly informative interview with Kamal Hossain, a key figure in debates about resource sovereignty, see Sharif Bhuiyan, Philippe Sands and Nico J Schrijver, ‘ “I Believe in the Power of Human Beings to be Agents of Change”: An Interview with Kamal Hossain’ in Sharif Bhuiyan, Philippe Sands and Nico J Schrijver (eds), International Law and Developing Countries: Essays in Honour of Kamal Hossain (Brill Nijhoff 2014). 4 The last point is particularly crucial—​and also particularly thorny. A  central feature of the growing literature on the history of human rights is the question of the role that such rights played in the self-​determination struggles of the post-​1945 era. Some argue that human rights were integral to this struggle. For different variants of this type of argument, see Roland Burke, Decolonization and the Evolution of International Human Rights (University of Pennsylvania Press 2010); 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; Steven LB Jensen, The Making of International Human Rights: The 1960s, Decolonization, and the Reconstruction of Global Values (CUP 2016). Others contend that human rights never comprised an essential element of the drive for self-​determination, or that they rose to prominence only during the 1970s, by which time the politics of national liberation had largely run its course. In this vein see especially Samuel Moyn, The Last Utopia: Human Rights in History (Belknap Press of Harvard University Press 2010); Jan Eckel, ‘Human Rights and Decolonization: New Perspectives and Open Questions’ (2010) 1 Humanity 111. For a recent contextualization of this and related debates, see Stefan-​Ludwig Hoffmann, ‘Human Rights and History’ (2016) 232 Past & Present 279.

Determining New Selves: Mohammed Bedjaoui  343 Aside from Bedjaoui and Abi-​Saab, international lawyers who have followed this path include RP Anand, Taslim Elias, Kamal Hossain, and Muthucumaraswamy Sornarajah. While this trans-​continental mobilization of legal talent was not, of course, formidable enough to cut across entrenched race and class divisions or subvert the dominance of Euro-​American jurists in every instance, it did have a significant effect on certain aspects of international law, including international development law, international environmental law, international human rights law, and the international law of armed conflict. This chapter aims to further our understanding of the historical dynamics behind Bedjaoui’s development from an advocate of Algerian independence to a champion of self-​determination in other states and territories. It first provides a close reading of Bedjaoui’s 1961 monograph Law and the Algerian Revolution, a detailed and characteristically vigorous defence of the Front de libération nationale (FLN) and its claims to sovereignty on behalf of the people of Algeria.5 Although it was arguably the most trenchant legal analysis of the war from a specifically Algerian perspective, Law and the Algerian Revolution has never received significant attention. It then analyses the arguments that Bedjaoui advanced in 1975 as a representative of Algeria in advisory proceedings relating to the international legal status of Western Sahara.6 Partly because Algeria was an ‘interested party’ and not a principal participant in the Western Sahara dispute, Bedjaoui’s submissions have generally been neglected, with the unfortunate result that the capacious vision of self-​determination he articulated has been side-​lined in favour of more general discussion of the case.7The chapter’s central claim is that Bedjaoui’s transformation from legal militant and colonial subject to experienced counsel and post-​colonial policymaker reflected an amplification of his earlier commitment to political and economic self-​determination—​a commitment that underwrote the broader push for decolonization that reconfigured the international legal and economic order in the decades following the Second World War. Specifically, it argues that Bedjaoui’s views on self-​determination in 1961 and 1975 are indicative of a certain refinement of his thinking—​in the sense not of marking a rupture or radical departure, especially since Bedjaoui was always committed to reforming international law from within the discipline’s centres of intellectual and professional power,8 but 5 Mohammed Bedjaoui, Law and the Algerian Revolution (International Association of Democratic Lawyers 1961) (hereafter Bedjaoui, Algerian Revolution). 6 Western Sahara (Advisory Opinion) [1975] ICJ Rep 12 (hereafter Western Sahara (Advisory Opinion)). 7 The most notable exception to this rule is the detailed analysis offered in Karen Knop, Diversity and Self-​Determination in International Law (CUP 2002) 110–​67. Subjecting both the case and the various sets of pleadings and ancillary documents to close examination, Knop argues that each of the states involved in the Western Sahara proceedings elaborated a distinct understanding of legal identity and allegiance. I have benefitted from Knop’s illuminating discussion. However, my concern here is different, having to do with Bedjaoui’s struggle to develop a radical critique of classical international law as part of a broader attempt to realize a fully non-​Eurocentric international legal order. 8 This was the case even for his support for and conceptualization of the NIEO project, which he embedded firmly in the work of the UNGA and other UN organs. See Mohammed Bedjaoui, Towards a

344  Umut Özsu of demonstrating an expansion and augmentation of his existing beliefs into a broader account of the historical and conceptual relations between colonialism and international law. The Sahara and the concept of collective self-​determination figured prominently in both cases, supplying Bedjaoui with an opportunity not only to advance his critique of classical international law, the formalistic pretensions of which he deemed to be theoretically untenable and undermined by the vagaries of imperialist policy, but also to press for the progressive realization of the ‘social’ and ‘solidaristic’ international law that he regarded as the necessary culmination of decolonization.9

II. Bedjaoui’s Algeria One of his first major works of scholarship, Law and the Algerian Revolution was an outgrowth of Bedjaoui’s personal and professional involvement in the Algerian liberation movement. No less significantly, it was also a product of his training in law and political science at the University of Grenoble during the 1950s. An attempt to analyse the legal dimensions of the Algerian struggle for independence from France, Law and the Algerian Revolution aims to be as exhaustive, even taxonomic, as possible, reading less as a polemic than as a treatise. It defends the claim that Algeria’s statehood predated the French invasion of 1830 and was never formally extinguished, its territory having been occupied but not subject to a successful, thoroughgoing, and legally valid process of annexation. It anchors the legal authority of the FLN in the constituent power of the Algerian people, which Bedjaoui regards as having furnished both the organization and the revolution it served with an overarching (and usefully imprecise) mandate. And it demonstrates that the FLN’s provisional government managed to secure recognition for itself and an independent Algeria from a large number of foreign states and governments, an exercise partly intended to bolster Bedjaoui’s contention that the 1949 Geneva New International Economic Order (Holmes Meier 1979) (hereafter Bedjaoui, NIEO). On the reformatory (rather than revolutionary) character of the NIEO, see especially Samir Amin, ‘After the New International Economic Order: The Future of International Economic Relations’ in Pradip K Ghosh (ed), New International Economic Order: A Third World Perspective (Greenwood 1984); Herb Addo, ‘The New International Economic Order and Imperialism: A Context for Evaluation’ in Luis Herrera and Raimo Väyrynen (eds), Peace, Development, and New International Economic Order. Proceedings of the International Peace Research Association—​Seventh General Conference (1979); Herb Addo (ed), Transforming the World Economy? Nine Critical Essays on the New International Economic Order (Hodder and Stoughton 1984). See further Umut Özsu, ‘Neoliberalism and the New International Economic Order: A History of “Contemporary Legal Thought” ’ in Christopher L Tomlins and Justin Desautels-​Stein (eds), Searching for Contemporary Legal Thought (CUP 2017). 9 Needless to say, Bedjaoui has written extensively about the international law of self-​determination throughout his career. I  focus upon Law and the Algerian Revolution and his interventions in the Western Sahara proceedings on account of the centrality of the concept of self-​determination to his arguments in both contexts.

Determining New Selves: Mohammed Bedjaoui  345 Conventions were directly applicable to the armed conflict. Most salient for present purposes, though, is Bedjaoui’s strong articulation of the right of collective self-​determination and his closely related insistence upon the territorial integrity and indivisibility of Algeria, with all that these naturally entailed for the country’s resource-​rich Saharan possessions. For Bedjaoui, colonialism had never generated a rationally integrated system of international law. Rivalries between various European powers had prevented the crystallization of a ‘universal system of colonial law’, and no ‘international standard of colonial law recognised in all periods and places’ had ever emerged.10 In the place of a colonial system that had failed to find ‘definite universal legal expression’, the world was now witnessing the birth of an anti-​colonialism that was to embody a ‘substantive international law’ reminiscent in some respects of the ‘social’ breadth of the natural law tradition.11 Algeria was destined—​indeed, duty-​bound—​to play an important role here, given that the war with France enjoyed a ‘leading place’ in ‘the great movement of disintegration of the colonial system’ and that it had already generated innovations in regard to prevailing legal conceptions of intervention on behalf of peoples waging self-​determination struggles.12 Bedjaoui was remarkably lucid here: the FLN’s combatants, he wrote, ‘do not represent the people because they carry arms’, but are instead ‘able to continue bearing arms because they represent the people’, anticipating an analytical inversion in favour of ‘the people’ that would later gain fame in the Western Sahara case.13 Further, if it was from the ‘will’ of the Algerian people that the FLN derived its representative authority, it was also from this ‘will’ that the FLN laid claim to the Algerian people’s right to self-​determination, this having been established as a ‘legal principle’ that ‘the colonial powers do not dare to oppose . . . openly on international platforms’.14 It bears noting here that Bedjaoui’s book appears to have gone to press in May 1961, roughly five months after the UN General Assembly (UNGA) adopted the landmark Declaration on the Granting of Independence to Colonial Countries and Peoples, a central point of reference for nearly all those agitating for forthright recognition of self-​determination as a legally enforceable right and not simply as an ill-​defined if appealing ‘principle’.15 Intriguingly, Bedjaoui’s preferred technique for gauging popular will and securing legitimacy for its expression was the plebiscite—​a mechanism that had come into its own during the interwar period but that had been applied nearly exclusively in Europe (and even then only under highly limited circumstances, such

10 Bedjaoui, Algerian Revolution (n 5) 10. 11 ibid 10. 12 ibid  11–​12. 13 ibid  57–​58. 14 ibid 66. 15 See UNGA Res 1514 (XV) (14 December 1960). See also UNGA Res 1541 (XV) (15 December 1960).

346  Umut Özsu as Upper Silesia and the Saar Territory).16 So long as a referendum procedure could be designed carefully and implemented impartially by an international commission,17 France’s desire to ‘dissolve the Algerian people into a multitude of tiny so-​ called ethnic, religious or linguistic groups, non-​viable and highly explosive in character’, was bound to fail.18 This would ensure that France would not be able to ‘make another Palestine or Congo out of Algeria, diabolically setting centrifugal forces into motion which will create a permanent state of insecurity in North Africa and the Mediterranean’.19 For Bedjaoui, the referendum—​a signature, if somewhat unreliable, manifestation of modern law’s putative commitment to self-​ determination and democratic decision-​making—​would play a key role in paving the way for Algerian sovereignty. Bedjaoui’s position with respect to the status of the Algerian Sahara followed directly from his general stance on self-​determination. French authorities claimed that Algerian Sahara was ‘unowned property’—​a ‘no man’s land’.20 The claim was factually groundless, of course, as no fewer than one million people inhabited the region. But it was also decidedly Eurocentric, particularly as it presupposed the universal validity of a form of sovereign authority that was (or was deemed to be) unique to modern Europe.21 Such insistence on the utility and applicability of the doctrine of terra nullius was, Bedjaoui argued pointedly, ‘one of the most characteristic forms of imperialist argument, based on a system of references which are set up as absolute when in fact they are only relative’.22 The French also argued that ‘northern’ and ‘southern’ Algeria were legally distinguishable, and that fully fledged self-​determination, should it be granted to the ‘north’, need not necessarily for that reason be awarded to the ‘south’. Unsurprisingly, the FLN and its supporters threw their weight behind the directly antithetical proposition. Arguing that Algeria’s Saharan territory belonged to Algeria alone, they insisted that the territorial unity and indivisibility of the state was unquestionable. Yet Algerians who sought emancipation from French rule were by no means alone in this regard. On the contrary, some of the most vociferous exponents of the thesis that Algerian Sahara was indeed Algerian were to be found within the settler population. The French had seized Algerian Sahara during the late nineteenth and early twentieth centuries, mainly for the purpose of integrating their possessions in western 16 The classic study is Sarah Wambaugh, Plebiscites Since the World War (With a Collection of Official Documents) (Carnegie Endowment for International Peace 1933). This reluctance to organize plebiscites continued long after the Second World War, fed by broader doubts about the scope and content of self-​determination at a time when many anti-​imperialist and anti-​colonialist movements were heavily invested in its legal and political force. See Jörg Fisch, The Right of Self-​Determination of Peoples: The Domestication of an Illusion (Anita Mage tr, CUP 2015) 185–​86. 17 On this see Bedjaoui, Algerian Revolution (n 5) 251–​55. 18 ibid 245. 19 ibid 246. 20 ibid 221. 21 ibid. 22 ibid 221–​22.

Determining New Selves: Mohammed Bedjaoui  347 Africa and strengthening their strategic and economic presence in the region. Some metropolitan officials had subsequently attempted to restructure Algerian Sahara’s administrative order, partly with a view to furthering the exploitation of its sizeable hydrocarbon resources. But the Algerian national assembly, composed disproportionately of settlers and other supporters of the départements’s administrative regime, had repeatedly rejected such efforts, resolving on numerous occasions to repudiate any ‘amputation of part of Algerian territory with a view to its integration into an independent territory which would come directly under the French metropolitan Government’.23 In Bedjaoui’s view, the issue was therefore clear: Algerian Sahara had always been part and parcel of Algeria, ‘the legal history of the Saharan part of the country ha[ving] served as a constant safeguard of this unity’,24 and the Algerian people could not be stripped of its (permanent) sovereignty over the territory’s wealth and resources.25 It has long been commonplace in many international legal circles to view national liberation movements as preponderantly ‘political’ rather than ‘legal’, the default assumption being that they warrant full recognition as international legal persons only once they achieve statehood (and thereby cease to be liberation movements). While not entirely without value, such a stance is ultimately unilluminating. Insisting unconvincingly upon a hard-​and-​fast distinction between ‘law’ and ‘politics’, it elides the crucial importance of law, both domestic and international, in the reconstitution of territories that are subject to foreign rule, whether formal or informal, into de jure sovereign and independent states. Matthew Connolly and Jeffrey Byrne have emphasized the fact that Algeria’s emancipation and reconfiguration was achieved through ‘legal’ as much as ‘political’ means—​that sovereignty was at least as much a result of transnational legal activism and argument as it was a product of armed conflict and concrete struggle.26 Bedjaoui’s Law and the Algerian Revolution illuminates the extent of this reliance upon law in full force.

III.  Bedjaoui’s Western Sahara If the South West Africa cases have rightly been denounced as the ICJ’s low watermark, doing significant damage throughout the third world to the reputation of international dispute-​settlement institutions,27 arguably no judgment or advisory 23 This language is from a 1952 resolution of the national assembly. Quoted ibid 235. 24 ibid 239. 25 ibid 239–​40. 26 See Matthew Connelly, A Diplomatic Revolution: Algeria’s Fight for Independence and the Origins of the Post-​Cold War Era (OUP 2002); Jeffrey J Byrne, Mecca of Revolution: Algeria, Decolonization, and the Third World Order (OUP 2016). 27 To take a particularly noteworthy example, Abi-​Saab has argued that the 1966 decision, ‘the most controversial in the history of the two Courts’, gave rise to ‘multiple repercussions’, above all ‘a very critical debate on the role of the Court in the General Assembly, which resulted in a rebalancing in the composition of the Court to make it more representative of the international community’s diverse

348  Umut Özsu opinion issued by the World Court spoke as directly to legal difficulties arising from ‘troubled’ cases of decolonization as Western Sahara. As has so often been the case with proceedings stemming from colonial and post-​colonial disputes, the Western Sahara opinion was first and foremost an exercise in international legal history, providing a crucial forum for debates about the doctrine of intertemporal law, the ‘effective control’ test for state sovereignty, the relation between self-​determination and uti possidetis juris, and countless other questions arising from or pertaining to decolonization. The UNGA had requested an opinion in respect of two issues—​ that of the territory’s legal status at the time of its formal colonization by Spain in the two final decades of the nineteenth century, in particular the question whether it could justifiably be characterized as having been terra nullius at that point, and that of any ‘legal ties’ which may then have existed between the territory on the one hand and Morocco and Mauritania (or, more accurately, the Bilad Shinguitti or what the Court terms ‘the Mauritanian entity’) on the other.28 Strictly speaking, the World Court was consulted not in regard to the validity of Spain’s ongoing administrative power in Western Sahara, but in connection with the territory’s legal personality (or lack thereof) at a crucial point in its historical development. That said, the legal implications for Spain’s authority over the territory and its Saharawi inhabitants were naturally significant.29 As already mentioned, Algeria was not a principal participant in the proceedings but simply an ‘interested party’, one concerned about the matter for reasons that Bedjaoui—​heavily involved in Algerian politics and serving as ambassador to France at the time—​glossed as its ‘common destiny with Morocco and Mauritania, thanks to geography, history, civilization, and language’.30 Unlike these two neighbouring states, Algeria had no direct claims to the territory. It participated in the proceedings mainly to uphold the extension of the right of self-​determination to the Saharawi inhabitants of the territory. In addition to stifling Morocco’s regional ambitions (the two countries had become embroiled in a border war shortly after Algeria’s independence in 1962), this would facilitate the continuation of the formal decolonization of north-​western Africa for which the UNGA had called repeatedly during the 1960s and early 1970s.31 Algeria was hardly alone in defending the aspirations of the Saharawi people. To take but one example, Marxist revolutionary

components’. See Georges Abi-​Saab, ‘De l’évolution de la Cour internationale: Réflexions sur quelques tendances récentes’ in Marcelo G Kohen (ed), Le développement du droit international: Réflexions d’un demi-​siècle, vol 1 (Graduate Institute Publications 2013) 248. 28 Western Sahara (Advisory Opinion) (n 6) 14. 29 ibid 28. 30 Western Sahara (Exposé oral de M.  Bedjaoui, reprèsentant du Gouvernement algérien) ICJ Pleadings vol 4 60 (hereafter Western Sahara (Exposé oral de M. Bedjaoui vol 4)). 31 For the most significant resolution in this vein, see UNGA Res 2229 (XXI) (20 December 1966). It bears noting that Western Sahara has long been presented as marking the ‘final stage’ in the decolonization of western Africa.

Determining New Selves: Mohammed Bedjaoui  349 Thomas Sankara made a point of voicing his support for the Saharawi during the course of his attempt to transform Upper Volta (which he renamed Burkina Faso) in the mid-​1980s.32 But the fact that Algeria shared a border with Western Sahara, and that the status of its own Saharan territory had been a bone of contention with France, made it a particularly urgent issue for Bedjaoui and other representatives of Algiers.33 Giving voice to Algeria’s official position, Bedjaoui argued that self-​ determination, understood both politically and economically, was ‘the cardinal principle of contemporary international law’, a ‘superior norm’ that qualified as jus cogens.34 For peoples subject to foreign rule, it had a ‘sacred character’.35 It was neither a ‘favour’ nor an act of ‘charity’, but ‘the price of the blood shed for their liberation’.36 That this was the case had been demonstrated by the Algerian struggle for independence, an experience that had confirmed the political value and logistical feasibility of plebiscites as a means of assessing and registering popular support, not to mention post-​independence Algeria’s fidelity to self-​determination in its pivotal role within the Non-​Aligned Movement, Group of 77, Organization of African Unity (OAU), and numerous other organizations.37 Crucially, Bedjaoui saw this prioritization of self-​determination as stemming from a broader and even more far-​reaching commitment to eliminating the ‘traditional’ international law that had been cultivated by the ‘successive imperialisms’ of European colonial expansion.38 The larger context within which the case unfolded was an essentially ‘transitional’ or even ‘emergent’ one,39 distinguished by a ceaseless, borderline desperate search for ‘a law adapted to the new society’, a law that would culminate in the entrenchment of norms of non-​intervention and sovereign equality.40 Self-​determination was the centrepiece of this effort, the rock upon which the new, post-​colonial international law was to be built—​by persuasion whenever possible, by compulsion wherever necessary. This was in keeping with Algeria’s long-​standing dedication to state sovereignty, as exemplified by President Houari Boumedienne’s denunciation of foreign intervention in the Nigerian Civil War at the OAU meeting in Algiers in

32 So much so that he would repudiate the very possibility of an OAU meeting that did not involve recognized representatives of the Saharawi people. See, for example, Thomas Sankara, ‘There is Only One Color–​That of African Unity’ in Michel Prairie (ed), Thomas Sankara Speaks: The Burkina Faso Revolution, 1983–​1987 (Pathfinder Press 2007) 125. 33 Western Sahara (Exposé oral de M. Bedjaoui vol 4) (n 30) 450. 34 Western Sahara (Exposé oral de M.  Bedjaoui, reprèsentant du Gouvernement algérien) ICJ Pleadings vol 5 303, 320 (hereafter Western Sahara (Exposé oral de M. Bedjaoui vol 5)). 35 ibid 304. 36 ibid 303. 37 ibid. 38 Western Sahara (Exposé oral de M. Bedjaoui vol 4) (n 30) 451. 39 ibid 451, 493. 40 ibid 451.

350  Umut Özsu 1968 as a series of ‘plots from all sides directed against Nigeria, aiming to disintegrate and shake to its foundations this great African state’.41 Significantly, it is in Bedjaoui’s oral statement that one encounters the claim that ‘[i]‌t is the people who decide the fate of the territory and not the territory who decides the fate of the people’42—​language which, in slightly different form, is conventionally ascribed to Judge Dillard, who in his separate opinion in Western Sahara maintained famously that ‘[i]t is for the people to determine the destiny of the territory and not the territory the destiny of the people’.43 This is particularly interesting, given that the Court’s opinion makes only passing mention of Algeria’s position. Indeed, only Judge Ammoun’s separate opinion expressed explicit support for Bedjaoui’s central argument.44 No less tellingly, Bedjaoui was clear that he did not regard self-​determination as conflicting with the principle of uti possidetis or related ideas about the need to respect ‘established’ borders, whether in Africa or elsewhere. Rather than undermining territorial integrity and independence, self-​ determination—​conceived as the popular basis for national sovereignty—​was fully compatible with uti possidetis, a ‘criterion of general order’ whose basic objective was to reinforce the normative inviolability of non-​intervention, facilitate the consolidation of newly established states, ensure the stability of the still delicate post-​ colonial distribution of territory, and prevent the outbreak of what Bedjaoui, like so many others, dubbed ‘fratricidal struggles’.45 Of special significance in this regard was terra nullius, a nebulous concept whose pedigree is usually traced back to Roman law, the School of Salamanca, and early modern political theories of property but whose popularity among late-​nineteenth and early twentieth-​century international lawyers owed largely to debates about colonial expansion in Africa and the question of sovereign authority in the polar regions.46 Advocates of terra nullius generally aimed to effect what Bedjaoui termed a ‘thingification’ (he himself spoke of réification and chosification) of the world’s peoples, normalizing an ostensibly homogeneous world order anchored in European models of national statehood and neutralizing other forms of juridico-​ political organization.47 To be sure, Bedjaoui did not deny that ‘the evolution of 41 Quoted in Brad Simpson, ‘The Biafran Secession and the Limits of Self-​Determination’ (2014) 16 Journal of Genocide Research 337, 344. 42 Western Sahara (Exposé oral de M. Bedjaoui vol 5) (n 34) 309. 43 Western Sahara (Advisory Opinion, Separate Opinion of Judge Dillard) [1975] ICJ Rep 116, 122. Rosalyn Higgins has suggested that the dictum, while attractive and oft-​quoted, is hampered by a crucial ambiguity: it is unclear, she observes, whether the statement grants such weight to self-​determination that no ‘legal ties’, even those rising to the level of ‘complete’ sovereignty, would have been enough for Morocco or Mauritania to make out its case. Rosalyn Higgins, ‘Judge Dillard and the Right to Self Determination’ (1983) 23 Virginia Journal of International Law 387, 390 ff. 44 Western Sahara (Advisory Opinion, Separate Opinion of Judge Ammoun) [1975] ICJ Rep 83, 86. 45 Western Sahara (Exposé oral de M. Bedjaoui vol 5) (n 34) 315–​18. 46 See Andrew Fitzmaurice, ‘The Genealogy of Terra Nullius’ (2007) 38 Australian Historical Studies 1. cf. Lauren Benton and Benjamin Straumann, ‘Acquiring Empire by Law: From Roman Doctrine to Early Modern European Practice’ (2010) 28 Law and History Review 1. 47 Western Sahara (Exposé oral de M. Bedjaoui vol 4) (n 30) 452. Interestingly, Aimé Césaire had already proposed a similar formula for colonialism: ‘My turn to state an equation: colonization = “thingification”.’

Determining New Selves: Mohammed Bedjaoui  351 contemporary society’ had brought with it the triumph of ‘the state form’.48 To do so would be to retreat into the romanticism of a pointless ‘traditionalism’. In fact, he unwittingly echoed the views of modernization theorists like Walt Rostow when he maintained that ‘[f]‌or African society, for African peoples, the passage from forms of social organization characterized as tribal to the state form utilized today is a painful fact of decolonization’.49 What he openly and resolutely opposed, though, was the claim that terra nullius constituted a legally sound, morally justifiable, and conceptually coherent means of resolving territorial disputes of the sort that had generated the Western Sahara proceedings. Conventional taxonomies of different modes of acquiring territory were belied by ‘permanent ambiguity’.50 Nineteenth-​ century distinctions between colonies, condominia, protectorates, and ‘barbarous’ or ‘semi-​civilized’ states that were subject to capitulatory or unequal treaty regimes had been marked by exceptionally high levels of imprecision, distinctions between such categories being notoriously fluid and porous. Similarly, in the state practice of colonial powers, cession, conquest, prescription, and related techniques of acquisition had never been distinguished uncontroversially from the kind of ‘discovery’ and occupation that underwrote classical invocations of the right to acquire territory on the grounds that it was ‘without master’.51 As a result, European powers had long characterized some territories as terra nullius and others as inhabited and governed by a sovereign power exercising effective control on the basis of little more than expediency, self-​interest, and arbitrary appeals to discretionary power. Bedjaoui swept widely with this claim:  for the Romans, all non-​Roman territory had been nullius; during the fifteenth and sixteenth centuries, any territory that could not be attributed to a Christian power had been under constant threat of characterization as such; in the late nineteenth century, Hobsbawm’s ‘age of empire’,52 much the same could be said for territories deemed ‘savage’ or ‘uncivilized’. ‘This observation alone’, Bedjaoui quipped sardonically, was sufficient to ‘ruin all scientific application of the theory of terra nullius’.53 Insofar as it had any meaning at all, the idea of terra nullius was best understood not as a distinct mode of territorial acquisition, one that purported to regulate relations between imperial powers and territories subject to colonialism, but simply as a device for mediating

Aimé Césaire, Discourse on Colonialism (Joan Pinkham tr, Monthly Review Press 1972) 21. The elective affinity with Marx’s analysis of ‘fetishistic’ attachment to the commodity form barely needs mentioning. See Karl Marx, Capital, vol. 1 (Ben Fowkes tr, Pelican 1976) 163–​77. 48 Western Sahara (Exposé oral de M. Bedjaoui vol 4) (n 30) 454. 49 ibid 451. Note that Bedjaoui took pains in other work to distinguish himself from Rostow and other modernization theorists. See, for example, Bedjaoui, NIEO (n 8) 66–​68. 50 Western Sahara (Exposé oral de M. Bedjaoui vol 4) (n 30) 454. 51 ibid; Western Sahara (Exposé oral de M. Bedjaoui vol 5) (n 34) 308. 52 See, famously, Eric J Hobsbawm, The Age of Empire: 1875–​1914 (Pantheon 1987). 53 Western Sahara (Exposé oral de M. Bedjaoui vol 5) (n 34) 308 (de-​emphasized from original).

352  Umut Özsu or delimiting competing claims to extra-​European territory so as to preclude conflict between European powers.54 Far from being an analytically precise and rigorously applied criterion for settling the status of different territories, terra nullius was ‘an uncontrollable weapon’,55 a ‘theory . . . for colonial powers and between colonial powers’,56 useful only to the extent that it was able to limit interimperial conflict, at least under special circumstances. To elevate it to the status of an objectively applicable rule of international law would be to blind oneself to the orientalism in which it was evidently grounded. After all, terra nullius made sense only if one believed that international law permitted European states to determine unilaterally whether a specific territory could be said to possess a ‘master’.57Terra nullius ‘condemned all differentiation and destined every territory organized in a manner different from the canons of dominant states to that which I term “occupation-​conquest” ’.58 As such, it was destined to disappear as part of the process of decolonization that would inaugurate a modern and properly inclusive international law. As with many other World Court cases, the Western Sahara opinion—​in which the Court determined that Western Sahara was not terra nullius at the time of colonization and that neither Morocco nor Mauritania had enjoyed sufficiently robust ‘legal ties’ to the territory—​came to establish itself as a significant object of scholarly analysis shortly after its release. Commentators sided with different parties, articulated different visions of self-​determination, and developed different accounts of the UN’s role in the resolution of the dispute, in some cases by suggesting that the case could mark the beginning of increased reliance upon the ICJ by the UNGA and Security Council.59 The opinion was followed within weeks by the ‘Green March’, during which hundreds of thousands of Moroccan civilians entered Western Sahara with military support, and the Madrid Accords, which paved the way for Spain’s withdrawal, its retention of significant powers over Western Sahara’s fisheries and phosphate enterprises, the territory’s subsequent occupation by Moroccan (and, until 1979, also Mauritanian) forces, the systematic implantation in the territory of a significant number of Moroccan settlers, and the concomitant marginalization of the Saharawi people’s right of self-​determination during years of armed struggle.60 Unsurprisingly, all this complicated matters 54 This claim is not far removed from Carl Schmitt’s infamous assertion that a key ‘benefit’ of European imperial competition in the extra-​European world was the minimization of large-​scale conflict on the European continent itself. See Carl Schmitt, The Nomos of the Earth in the International Law of the Jus Publicum Europaeum (G. L. Ulmen tr, Telos Press 2003). 55 Western Sahara (Exposé oral de M. Bedjaoui vol 5) (n 34) 308 (original emphasis). 56 Western Sahara (Exposé oral de M. Bedjaoui vol 4) (n 30) 455 (original emphases). 57 ibid 454. 58 ibid. 59 For a concise articulation of this last point, see Mark W Janis, ‘International Court of Justice:  Advisory Opinion on the Western Sahara’ (1976) 17 Harvard International Law Journal 609, 620. 60 Declaration of Principles (Tripartite (Madrid) Accords (Mauritania/​ Spain/​ Morocco)) 1975, (1975) 14 ILM 1512.

Determining New Selves: Mohammed Bedjaoui  353 considerably, generating a range of opinion. In what was arguably the most influential anglophone legal analysis at the time, Thomas Franck even suggested that the political success of Morocco’s historic claim would strengthen Palestinian claims against Israel. ‘In due course’, he wrote, ‘an Arab Palestine will almost certainly advance territorial claims against Israel’, adding that the willingness of many states ‘to tolerate the use of force to effect a restoration of historic title even in disregard of the wishes of the inhabitants’ had already ‘undermined Israel’s legitimacy’.61 Rather than likening Morocco to Israel and the Saharawis to the Palestinians, as would have been more logical,62 this argument inverted the relation by pointing to the use of arguments about historic title (as though Israeli and Saharawi representatives did not also deploy such arguments).63 Of doubtful merit, such analyses nevertheless spoke to the widespread confusion that was brought about by the Western Sahara dispute. These confusions continue today. The Polisario Front, other Saharawi organizations, and non-​Saharawi advocates of the territory’s decolonization maintain that the continued denial of a referendum on the question of independence that would be restricted to ‘authentic’ Saharawis alone (and would thereby exclude Moroccan settlers) violates the principles of self-​determination and permanent sovereignty over natural resources, as well as other segments of international human rights law and international humanitarian law.64 The political economy of self-​determination disputes has always come to the fore with special clarity in the context of decolonization,65 and the availability of significant oil and gas resources in Western Sahara—​resources for which both the occupying Moroccan authorities and the representatives of the Polisario Front have concluded exploratory agreements 61 Thomas M Franck, ‘The Stealing of the Sahara’ (1976) 70 American Journal of International Law 694, 720. 62 Not least because of recent moves in both contexts to elaborate notions of ‘earned’ or ‘conditional’ sovereignty, indexing the right to independence of the relevant group (Saharawi and Palestinian) to its demonstrated capacity to govern itself in accordance with pre-​specified standards and benchmarks. See Catriona Drew, ‘The Meaning of Self-​Determination: “The Stealing of the Sahara” Redux’ in Karin Arts and Pedro P Leite (eds), International Law and the Question of Western Sahara (International Platform of Jurists for East Timor (IPJET) 2007) 96–​100. 63 One can only imagine what Bedjaoui would have made of this argument. For his own opinion on Israel–​Palestine, replete with charged (and arguably racist) claims of various kinds, see ‘Allocution d’ouverture du Colloque prononcée le 22 juillet 1967 par M.  Mohammed Bedjaoui, ministre de la justice, garde des Sceaux’ and ‘Allocution de clôture du Colloque prononcée le 27 juillet 1967 par M. Mohammed Bedjaoui, ministre de la justice, garde des Sceaux’ in La question palestinienne: Colloque de juristes arabes sur la Palestine, Alger, 22–​27 juillet 1967 (Alger: Societé nationale d’édition et de diffusion, 1968) 9, 220. 64 On issues of resource use and exploitation, generally marginalized but in actuality central to the question of Western Sahara’s status, see Jeffrey J Smith, ‘The Taking of the Sahara: The Role of Natural Resources in the Continuing Occupation of Western Sahara’ (2015) 27 Global Change, Peace & Security 263, 273–​78, 283; Ben Saul, ‘The Status of Western Sahara as Occupied Territory under International Humanitarian Law and the Exploitation of Natural Resources’ (2015) 27 Global Change, Peace & Security 301; and a number of contributions in Arts and Leite (n 62). 65 Think, for instance, of the extent to which conflicts over resources fed the Congo Crisis and Nigerian Civil War.

354  Umut Özsu with transnational corporations66—​renders the current status of the territory and its population even more complex than would otherwise be the case. That Rabat has insisted on pressing ahead with the construction of large-​scale wind farms throughout the territory adds yet another wrinkle to the story, amplifying concerns that its inhabitants have not been consulted about development initiatives that lend additional power and legitimacy to Morocco’s ongoing occupation.67 In light of these later developments, not to mention Western Sahara’s well-​earned reputation as one of the last ‘unique cases’ of failed self-​determination,68 Bedjaoui’s attempt to articulate a robust vision of self-​determination in The Hague is well worth revisiting, particularly because it may profitably be read as a (dated and insufficient, but nevertheless intriguing) contribution to the effort to bolster the international legal personality of indigenous peoples.69

IV.  Conclusion Like many other jurists affiliated with the third world, Bedjaoui has always been a historical jurist, one whose interventions in current legal controversies are informed by and articulated with an eye to context and precedent. It is no surprise, then, that he should have devoted much of his defence of the FLN and his oral statement in Western Sahara to detailed exposition of the legal histories of sovereignty, self-​determination, terra nullius, and a host of related concepts. Bedjaoui drew heavily upon his extensive knowledge of international legal history in both cases, circling back time and again to the Monroe Doctrine, the 1884–​85 Conference of Berlin, the various partitions of Poland, the exportation of ideas about uti possidetis from Latin America to Africa and Asia, and so on. The international law of decolonization was to a very significant degree the product of far-​reaching engagement

66 See, for example, Alicia Campos, ‘Oil, Sovereignty & Self‐Determination: Equatorial Guinea & Western Sahara’ (2008) 35 Review of African Political Economy 435, 436–​37. 67 Western Sahara Research Watch, ‘Powering the Plunder: What Morocco and Siemens are hiding at COP22, Marrakech’ (Berlin 2016), . See also Arthur Neslen, ‘Africa’s Biggest Windfarm Sparks Controversy in the Desert’ The Guardian (22 November 2016) . 68 And this notwithstanding the fact that the Western Sahara opinion has long been cited in support of self-​determination struggles elsewhere, both within and beyond Africa. For Eritrean arguments to this effect, for instance, see Bereket H Selassie, ‘The Law of Self-​Determination and the Eritrean Case’ in Eritrea and the United Nations and Other Essays (Red Sea Press 1989) 90. Cf. Dirdeiry M Ahmed, Boundaries and Secession in Africa and International Law:  Challenging Uti Possidetis (CUP 2015) 176–​77. 69 The rights that international law vested in indigenous peoples at the time of the Western Sahara proceedings were, of course, even more limited than those that are currently available. See SJ Anaya, Indigenous Peoples in International Law (2nd edn, OUP 2004) 49–​57; Luis Rodríguez-​Piñero, Indigenous Peoples, Postcolonialism, and International Law: The ILO Regime (1919–​1989) (OUP 2005).

Determining New Selves: Mohammed Bedjaoui  355 with the history (and theory) of international law. Bedjaoui recognized this fact and skilfully exploited it. Even more important, though, is what Bedjaoui’s development tells us about decolonization as an international legal project. In 1961, the year of the Evian and Lugrin conferences that paved the way for Algerian independence, a young and ambitious Bedjaoui positioned self-​determination at the centre of the ‘social’, broadly anti-​formalistic international law that decolonization was widely regarded as being in the process of generating. In 1975, with the 1966 human rights covenants, the 1970 Friendly Relations Declaration, and the formal inauguration of the NIEO project in 1974 behind him, an older, more mature Bedjaoui sought to follow through on the promise of this position. Bedjaoui ultimately failed to convince the World Court to support his radical denunciation of the very idea of terra nullius. Although it was of the view that Western Sahara had not constituted terra nullius in the 1880s and 1890s, it was unpersuaded by Bedjaoui’s suggestion that the legal consequences of a past situation should be assessed in light of contemporary international law, particularly the modern, post-​1945 law of self-​determination, rather than on the basis of the law applicable at the time of the situation, including the doctrine of terra nullius.70 Nor, for that matter, did it regard terra nullius as a hopelessly imprecise notion, as Bedjaoui clearly did.71 Nevertheless, what is interesting about Western Sahara is the way that Bedjaoui sought to deepen and expand his claim—​made as early as Law and the Algerian Revolution—​that the classical international law of colonialism was incoherent and internally fractured, and therefore had to give way to a fully decolonized international law in which self-​ determination would enjoy pride of place. For Bedjaoui, the intervening years had confirmed that self-​determination was a central front—​quite possibly the central front—​in the struggle for a new international law, a struggle in which he generally

70 Western Sahara (Exposé oral de M.  Bedjaoui vol 4)  (n 30)  492–​93. In effect, Bedjaoui had attempted to revise, if not repudiate, Max Huber’s twofold theory of intertemporal law in Island of Palmas. On this see Knop (n 7) 158–​67; Martti Koskenniemi, From Apology to Utopia: The Structure of International Legal Argument (CUP 2005) 456–​57; Michelle L. Burgis, Boundaries of Discourse in the International Court of Justice: Mapping Arguments in Arab Territorial Disputes (Martinus Nijhoff 2009) 223–​24. Acting as arbitrator in Island of Palmas, Huber wrote: ‘As regards the question which of different legal systems prevailing at successive periods is to be applied in a particular case (the so-​ called intertemporal law), a distinction must be made between the creation of rights and the existence of rights. The same principle which subjects the act creative of a right to the law in force at the time the right arises, demands that the existence of the right, in other words its continued manifestation, shall follow the conditions required by the evolution of law.’ Island of Palmas (Netherlands v United States) [1928] 2 RIAA 829, 845. The World Court made similar points on a number of occasions; see, for example, Legal Status of Eastern Greenland (Denmark v Norway) (Judgment) [1933] PCIJ Rep Series A/​ B No 53; Case Concerning Right of Passage over Indian Territory (Portugal v India) (Judgment) [1960] ICJ Rep 6, 37. Note that regardless of Bedjaoui’s doubts in the Western Sahara case, the usefulness of the doctrine of intertemporal law was regularly defended by other third-​world legal scholars; see, for example, Ram P Anand, New States and International Law (Vikas 1972) 17–​18, 20; Taslim O Elias, ‘The Doctrine of Intertemporal Law’ (1980) 74 American Journal of International Law 285, 305–​06. 71 Western Sahara (Advisory Opinion) (n 6) 39–​40.

356  Umut Özsu understood himself (rightly or wrongly) to be playing the role of a reform-​minded insider ‘operating behind enemy lines’.72 Martti Koskenniemi has famously suggested that international law effectively met its demise sometime around 1960, thanks in no small part to the ascendance of US-​based ‘realism’ in the new, managerialist, and preponderantly ‘post-​legal’ field of ‘international relations’. If it continues to exist at all, Koskenniemi has sometimes hinted, it does so mainly as a kind of ghost-​like residuum, a hackneyed reproduction of its formerly vital and relevant self, with even putatively foundational concepts like jus cogens and obligations erga omnes functioning as little more than kitsch.73 When all is said and done, this stance is both correct and incorrect. It is justified in the sense that faith in international law’s capacity to contribute meaningfully to human progress and prosperity fell sharply after the flush of enthusiasm for supranational institution-​building in the 1940s and 1950s, particularly after the normalization (and legalization) of programmatic neoliberalism in the 1970s and 1980s. Among other things, many students of decolonization, particularly those working within the Marxist tradition, have voiced suspicions about the relevance of formal legal sovereignty—​or ‘what is known as independence’, as CLR James once put it74—​for the concrete struggle to do away with the capitalist mode of production, above all in colonial contexts. However, the argument over-​reaches by obscuring the central importance of socialist and non-​aligned jurists, who invested heavily in projects to transform and decolonize international law from the 1940s through the 1980s. While it is true that these jurists nearly always prioritized the achievement and consolidation of sovereignty, they frequently sought to revamp or even subvert conventional models of statehood in an effort to universalize decolonization once and for all: from the canonization of social and economic rights to the recognition of international jus cogens as a central element of the law of treaties, socialist and third-​world jurists were responsible for much of international law’s evolution in the latter half of the twentieth century.75 To be sure, such efforts met with very limited success, and depression—​even outright self-​loathing—​set in fairly quickly in some quarters. Nor, of course, were the enacted changes capable

72 I borrow this expression from Abi-​Saab, ‘Praxis’ (n 3) 1967. 73 See especially Martti Koskenniemi, The Gentle Civilizer of Nations:  The Rise and Fall of International Law 1870–​1960 (CUP 2001) ch 6. For different facets of this argument see further Martti Koskenniemi, ‘International Law in Europe:  Between Tradition and Renewal’ (2005) 16 European Journal of International Law 113; Martti Koskenniemi, ‘Miserable Comforters: International Relations as New Natural Law’ (2009) 15 European Journal of International Relations 395; Martti Koskenniemi, ‘Law, Teleology and International Relations: An Essay in Counterdisciplinarity’ (2012) 26 International Relations 3. See also Dana Schmalz, ‘On Kitsch, Zombies and True Love—​An Interview with Martti Koskenniemi’ Völkerrechtsblog (21 May 2014) accessed 15 October  2017. 74 CLR James, A History of Pan-​African Revolt (PM Press 2012) 123. 75 On the (modern) history of international jus cogens, see Umut Özsu, ‘An Anti-​Imperialist Universalism? Jus Cogens and the Politics of International Law’ in Martti Koskenniemi, Walter Rech and Manuel J Fonseca (eds), International Law and Empire: Historical Explorations (OUP 2017).

Determining New Selves: Mohammed Bedjaoui  357 of impeding the growth of new relations of economic and political domination in recently decolonized states, where national liberation frequently revealed itself to be little more than a placeholder for one or another project of comprador collaboration and bourgeois self-​empowerment. After all, even a significantly revamped form of Euro-​American international law could in many circumstances facilitate the new state’s ‘exploitative metropolis-​satellite integration into the structure and development of the capitalist system which produces underdevelopment’.76 Even so, they did augment entitlements of resource sovereignty, generate specific rights to development and self-​determination under international law, complicate received understandings of compensation in the event of expropriation and nationalization, and contest efforts by Western governments to enforce substantively dubious treaties and other legal instruments that had been concluded with dependent administrations throughout the ‘global South’.77 Revisiting Bedjaoui’s shifting engagement with international law invites us to develop a more nuanced appreciation of the tangled struggle to realize the promise of self-​determination that was (and is) the international law of decolonization.

76 Andre G Frank, Capitalism and Underdevelopment in Latin America: Historical Studies of Chile and Brazil (Monthly Review Press 1967) 142 (original emphasis). 77 From a growing literature see especially Matthew Craven, The Decolonization of International Law: State Succession and the Law of Treaties (OUP 2007); Sundhya Pahuja, Decolonising International Law: Development, Economic Growth, and the Politics of Universality (CUP 2011). For the socialist contribution to this process see especially John B Quigley, Soviet Legal Innovation and the Law of the Western World (CUP 2007) 133–​71; 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 (CUP 2008); Bill Bowring, Law, Rights and Ideology in Russia: Landmarks in the Destiny of a Great Power (Routledge 2013); Scott Newton, Law and the Making of the Soviet world: The Red Demiurge (Routledge 2015).

16

Charles Chaumont’s Third-​World International Legal Theory Emmanuelle Tourme Jouannet

I. Introduction Over the course of the 1950s up until the 1970s, Charles Chaumont introduced a critical approach to international law into the French internationalist doctrine.1 Often qualified as a third-​world approach, it locates itself decisively apart from traditional academic doctrines. Against the background of the disintegration of the old French colonial empire, Chaumont deeply influenced a whole generation of internationalists in France and abroad, especially in the then recently decolonized, francophone part of Africa. In an era characterized by a predominance of conservative thinking in France, he opened up the possibility of envisioning international law in a radically new way by constructing an argumentation that provided a framework for defending the rights of colonized or recently decolonized peoples. He argued in favour of a realistic ‘new law’ to substitute the abstract ‘classical international law’, which he deemed a historical product of legal formalism practised by a community of lawyers and politicians of past centuries. However, Chaumont was hardly a maverick in defending the rights of decolonized peoples in the context of decolonization in the 1950s and 60s—​a time that was marked by high tensions in France:2 a whole group of eminent French internationalists have not only supported peoples’ right to self-​determination, but also theorized a new law of development to compensate for the enormous economic and social 1 This is a completely overhauled version of the text. It is inspired by a report presented during the ‘Journée en hommage à Charles Chaumont’, which was organized by the University of Nancy II, under the direction of Professor JD Mouton and Professor J Charpentier, March 11, 2003. A first version was published in Emmanuelle T Jouannet, ‘La Pensee Juridique de Charles Chaumont’ (2004) 37 Belgian Review of International Law 259, as well as later in Emmanuelle T Jouannet and Iulia Motoc (eds), Les doctrines internationalistes durant les années du communisme réel en Europe: Internationalist doctrines during the years of real communism in Europe (Société de Législation Comparée 2012). 2 The very strong controversies that took place can be retraced in two symposiums which were organized by the Société française de droit international: Le droit international économique, Orléans, 1971, Paris, Pedone, 1972 and Pays en voie de développement et transformations du droit, Aix, 1973, Paris, Pedone, 1974.

Emmanuelle Tourme Jouannet, Charles Chaumont’s Third-World International Legal Theory In: The Battle for International Law: South-North Perspectives on the Decolonization Era. Edited by: Jochen von Bernstorff and Philipp Dann, Oxford University Press (2019). © The Several Contributors. DOI: 10.1093/oso/9780198849636.003.0017

Charles Chaumont’s Internaitonal Legal Theory  359 inequalities between the North and the South.3 However, the first particularity that distinguishes Chaumont lies in the fact that he developed a method of dialectical materialism close to Marxism, which is at the heart of what has long contributed, and still contributes, to dividing internationalists in their way of thinking about the relations between the law and facts as well as the law and hegemonic political and economic power relations4. Since it conveyed an intellectual structure close to Marxism, or even Maoism, Chaumont’s legal theory has hence been particularly ostracized. It triggered strong hostility in the era of decolonization, which took place in the middle of the Cold War. Another particularity of his position is linked to his personality, his well-​known charisma, and the fact that he always acted upon his convictions, which earned him respect even among his opponents. At this point, it is important to revisit elements of Chaumont’s life story, since it was the position he held that gave him the means to spread his ideas beyond France, thus giving them a real international impact.5 He was an outstanding member of the French Résistance during the Second World War and committed to the French Forces of the Interior (FFI). After the war, he resumed his studies and became a Professor of Public International Law, Faculty of Law at Nancy in 1944, later at the Paris Institute of Political Studies, and finally Faculty of Law at the Free University of Brussels in 1961. His academic activities notably led to the organization of the very famous Reims symposiums (1973-​1989)6 with Monique Chemillier Gendreau, Jean Salmon, Jean Pierre Colin, and others, as 3 On this analysis I refer to my work Emmanuelle T Jouannet, What is a Fair International Society? International Law Between Development and Recognition (Hart 2013) (hereafter Jouannet, Fair International Society). It seems that the principle of a law of development has first been introduced in France by André Philip at a conference in Nice, May 27-​29, 1965: Association pour le développement du droit mondial (ed), ‘L’Adaptation de l’O.N.U. au monde d’aujourd’hui: Colloque international de Nice, 27-​29 mai 1965’ (1965) 129. It was adapted by Michel Virally, ‘Vers un droit international du développement’ (1965) 11 Annuaire Français de Droit International 3. A  whole group of French-​ speaking internationalist writers have largely developed this so-​called ‘third-​world’ approach at the time: Mohamed Bennouna, Droit international du développement: Tiers monde et interpellation du droit internat (Berger-​Levrault 1983); Mario Bettati, Le nouvel ordre économique international (PUF 1983); Maurice Flory, Droit international du développement (Presses Universitaires de France 1977); Edmond Jouve, Le Tiers Monde dans la vie internationale (2nd edn, Berger-​Levrault 1986); Alain Pellet, Le droit international du développement (2nd edn, Presses Universitaires de France 1987); Guy Feuer and Hervé Cassan, Droit international du développement (Dalloz 1991); Guy d Lacharrière, Commerce extérieur et sous-​développement (Presses Universitaires de France 1964). 4 See Charles Chaumont, ‘La relation du droit international avec la structure économique et sociale’ in Centre d’Études des Relations Internationales, Faculté de Droit de Reims (ed), La relation du droit international avec la struture économique et sociale. Actes de la quatrième rencontre de Reims (1978) (hereafter Chaumont, ‘La relation du droit international’) < https://​www.univ-​reims.fr/​catalogue/​themes/​rencontres-​de-​reims-​en-​droit-​international/​gallery_​files/​site/​1/​1697/​4644/​40906. pdf> accessed 20 September 2018. 5 For a complete biography, see the contribution by Charalambos Apostolidis on the website of the Société française pour le droit international: http://​www.sfdi.org/​internationalistes/​chaumont-​charles. 6 The complete results of the ‘Rencontres de Reims’ are now available online on the website of the Faculty of Law in Reims:  http://​www.univ-​reims.fr/​site/​editions-​et-​presses-​universitaires-​de-​reims/​ catalogue/​themes/​rencontres-​de-​reims,15443.html>.

360  Emmanuelle Tourme Jouannet well as numerous publications, including two courses at The Hague Academy of International Law7. Notwithstanding this very prolific academic career, Chaumont also was a great legal practitioner. To briefly summarize the essential points: he was a member of the French delegation to the committee of lawyers in Washington that was charged with preparing the statute of the International Court of Justice in 1945, as well as a member of the French delegation to the conference in San Francisco in 1945. He became a legal counsel for the Ministry of Foreign Affairs from 1949 onwards and the French representative to the Sixth Committee of the United Nations General Assembly (UNGA) from 1946 to 1958, the Special Committee of the United Nations (UN) on the Question of Defining Aggression in 1953, 1956, 1969, and 1970, as well as multiple Committees of the Council of Europe in 1950 and 1951, among others the Committee of Experts that was charged with elaborating the European Convention of Human Rights. At the request of Georges Scelle, he lastly took up the position of Secretary General at The Hague Academy of International Law from 1959 to 1965. During these different posts, he was not only respected for the quality of his expertise, but also for his strong political engagements. For example, at several conferences he strongly denounced the American intervention in Vietnam, which he deemed to be a true aggression, even though this contradicted the official position of the French government.8 However, his most famous act of resistance was his resignation as legal counsel for the Quai d’Orsay during the Suez crisis, affirming that he fundamentally disagreed with the French intervention. He denounced a ‘threefold aggression’ (French, English, Israeli) against Egypt and slammed the door behind him. From a doctrinal point of view, the line of thought he introduced developed into a genuine critical school of thought, today named ‘École de Reims’ in France—​after the place where he organized his symposia, which rallied numerous French academics and students to debate the rights of peoples and the contradictions in international society, as well as his method of critical dialectical analysis. Yet, over a course of history which saw the fall of the Berlin Wall, this intellectual movement seems to have gradually vanished. Chaumont’s thinking has since become marginalized in France and his type of approach, closer to Marxism than to liberalism, was demeaned as being a typical aberration of a leftist, third-​world-​ oriented period during the years of decolonization. The last thirty years have effectively seen the complete side-​lining of his work and his positions in France, as

7 Charles Chaumont, ‘Nations Unies et neutralité’ (1956) 89 Recueil des Cours de l’Académie de Droit International de La Haye 1 and Charles Chaumont, ‘Cours général de droit international public’ (1970) 129 Recueil des Cours de l’Académie de Droit International de La Haye 335 (hereafter Chaumont, ‘Cours général’). 8 Charles Chaumont, ‘Analyse critique de l’intervention américaine au Vietnam’ (1968) 4 Belgian Review of International Law 61 (hereafter Chaumont, ‘Analyse critique’).

Charles Chaumont’s Internaitonal Legal Theory  361 well as a fundamental shift towards a trend in international law that is informed by pragmatism, the preservation of positivist formalism, and liberal or even conservative thinking. Despite its relegation in favour of this general trend, Chaumont’s legal theory nonetheless constitutes a crucial part of our contemporary history. As such, it makes for an interesting object of study that helps to understand a very peculiar period in France, marked by legal battles fought in favour of decolonization and newly decolonized countries. In a contemporary context, the burden attached to Marxism in international law—​due to its historic version of a ‘real socialism’—​furthermore seems to have been lifted by the very fact of its collapse. The distance of several years allows us to reflect today, in a dispassionate way, on the merits as well as the shortcomings of the doctrines it inspired. It is exactly this most disputed aspect of Chaumont’s work, which he used for his actions in favour of decolonized peoples and which, at the same time, explains a great deal of its singularity within the French academia and consequently seems particularly interesting to look at. However, it is vital not to reduce the Chaumont’s doctrinal contribution to a simplified application of Marxism or Maoism to international law, aimed at supporting peoples’ right to decolonization and at helping them fight all the injustices they have suffered. This would improperly summarize a much more subtle and nuanced reflection, in which Marxism and notably Maoism, at least in 1970, certainly played an important role, but was distinguished in certain ways by Chaumont on the basis of his personal philosophy. Chaumont’s individual approach, the apparent freedom of thought that emerges from his writings, and the constant concern for intellectual honesty that characterizes many of his ideas suggest to primarily evaluate his thoughts on international law in their profoundly unique nature. At the same time, it is true that they maintain close links to Marxism, which creates numerous burdensome ambiguities. In this regard they share typical strength and weaknesses of other committed intellectual movements that emerged in France during decolonization This chapter presents Chaumont’s strongest proposals, notably those made with regard to decolonization and peoples’ right to self-​determination in his 1970 general course at The Hague Academy of International Law, and a brief overview over its most important theoretical underpinnings (Section II). It is his personal analysis of international law that constitutes the most important legacy of his reflections during and in support of the battles fought in favour of decolonization. In this regard, Chaumont took the position of a complete epistemological break from the traditional theory by transposing the use of dialectical analysis to international law. In doing so, he formulated a major twofold critique of international law and the legal theory behind it (Section III). These two criticisms have the common effect of inducing a complete and radical demystification of the legal field, furthering a ‘new law’ that would serve peoples, states, and human beings.

362  Emmanuelle Tourme Jouannet

II.  Chaumont’s third-​world-​related objective and adoption of legal positions in favour of the third world This section breaks down Chaumont’s analysis, which is based on one decisive assumption. It then shows how he illustrates this by notably using the question of colonized or recently decolonized peoples’ rights. Finally, it explains his search for alternative approaches that might be proposed.

1. The assumption In his famous course at The Hague Academy of International Law in 1970—​a crucial year for drawing lessons from some very recent decolonization processes—​Chaumont exposed the extent to which the legal formalism of classical international law did not meet the aspirations of the young third world and the newly decolonized states. To do so, he first of all had to define what he meant by ‘classical’ international law in order to subsequently juxtapose it with a ‘new’ international law. From the outset, he defines the former as the ‘entire set of rules and legal concepts in international relations prior to the end of the war of 1914’.9 He suggested that this classical international law possesses two characteristics that must be taken into account, both of which are just as much intellectual errors as moral failures. To start with, it is a law of an Eurocentric origin that has only later been extended to the rest of the world—​that is America, Africa, Asia, and Oceania—​by colonization. Drawing from third-​world movements, this feature of imposing itself on entities that could otherwise have developed other systems of external legal relations is being presented as the original sin. Its main flaw lies above all in the fact that it restricted the possible participation of colonized peoples or subjugated states in the creation of the rules of international law, and which are supposed to be applied to them once they have been decolonized. Hence, the second feature of this classical international law, which is just as reprehensible and resides in the fact that between states of the same civilizational culture and with more or less similar economic standards, the rules of classical international law have been adopted and applied formally. Possible social and economic inequalities between states have at no time been taken into account. By showing that classical international law is simply indifferent to these inequalities, Chaumont demonstrates the difference between law and facts, between a legal equality among states as proclaimed by international law, and an enormous inequality of wealth that can exist between rich and poor countries. He specifies this for every source of law, that [ . . . ] once accepted unanimously, customs apply to all, even if they are contrary to the fundamental interests of some; treaties may be the result of inequality,

9

Chaumont, ‘Cours général’ (n 7) 344.

Charles Chaumont’s Internaitonal Legal Theory  363 pressure, coercion or violence, but their value still remains untouched due to the formalities they entail; the general principles which are in force are those resulting from the internal law of Western states.10

As a consequence, classical international law is seen as an abstract system, indifferent towards, and with no impact on, reality. It is completely detached from the sociological underpinnings of international society and the disparities in wealth and power that exist between the old Western and the young decolonized states11. As important as they may seem, notions such as equality, solidarity, and cooperation, even international society, are therefore hollow and disembodied. Worse, they serve as a respected vehicle to further acceptance of and even justify forms of voluntary submission to an utterly unjust classical order and intolerable situations of inequality, non-​cooperation, injustice, and suffering to which the young nations of the third world are subjected.12 Furthermore, Chaumont explains how this formalist law, detached from concrete realities, leads to a general loss of ‘credibility’ in international law, particularly in the vital areas of the law of war and peace, but also of decolonization and the new law of development. This is because even though the law’s appearance might be formal, it only conceals the rule of the strongest over the weak. It is for this reason that the classical law may well seem to aim at agreement and cooperation; in reality however, it is devoted to the rule of the strongest and does not at all take into account existing unequal relations. Chaumont thus expressed his unequivocal opinion on classical international law, saying ‘It is a mix of cynicism and illusionism’.13

2.  The example of colonized or decolonized peoples’ rights In his general course of 1970, Chaumont developed multiple concrete examples to show this illusory and abstract nature of classical international law. The same goes for several articles published before and after that. To support his argument, he examined the distance between the formalism of the law and the factual reality. He did so in a manner where it was always the supremacy of the strongest that prevailed: the rich state, the Western colonizer or former colonizer, or simply a state that became dominant after 1945, that is, the United States and the USSR.14 By using these examples, Chaumont above all aimed to illustrate how the abstract formalism of classical law continued to haunt contemporary law. He notably cited the burning question of that time about ‘acquired rights’, a concept that enabled

10 ibid. 11 ibid. 12

ibid 345. ibid 346. 14 ibid 345. 13

364  Emmanuelle Tourme Jouannet the old colonizers through foreign exploitations to preserve their profits from natural resources, which should have been returned to the young decolonized nations by virtue of their sovereignty over these resources. He referred to Mohammed Bedjaoui (in his second report on state succession to the International Law Commission, A/​CN.4/​216 of May 2nd, 1969, para 12) to address this issue, which was intrinsically linked to the newly decolonized states’ right to nationalize and the amount of compensation to be given to foreign companies. Here he attempted to show in a concrete way how legal fiction and the formalism of a theory of acquired right, as well as the idea of a nationalization that calls for integral reparation, would be utterly unjust with regard to the power relations camouflaged by the legal rule, which expose a poor state to particularly powerful private economic interests that are nothing but post-​colonial extensions of the old hegemony.15 Integral reparation would in any case be impossible because if the state nationalizes, it does so precisely because it is poor and wants to recover control over its own sources of wealth. Chaumont subsequently insisted on the notions that would, according to him, become cardinal to a new post-​colonial international law and which would necessarily replace old formalist legal fictions. In this vein he strongly argued that ‘the protection of private interests does not coincide with the protection of human rights’16 and that from now on, it will be essential to settle this question using four elements adding up to the equation: ‘individuals, states, nations, peoples’. The transition from the old to the new law will require a ‘synthesis’ of these elements and a balance between them, in a manner that the compensation sought for the nationalization of foreign goods will not constitute an obstacle to the sovereignty of the young state, the rights of its people, and of every individual human being of which it is composed.17 Chaumont provided many other concrete examples but the limited framework of this chapter prevents their discussion here. Moreover, as Charalambos Apostolidis aptly puts it: ‘On a conceptual level, it is probably the original reflection on the people as being the “creative force” in the dynamics of international law’, which represents the most personal element of his thinking and places him at the heart of the debates on decolonization as well as the legal battles that go with it.18 It is no coincidence that the Mélanges which were offered to him also focus precisely on ‘The right of people to self-​determination’.19 This chapter thus only elucidates his decisive statements concerning the notion of the ‘people’, especially 15 ibid 492. 16 ibid. 17 ibid. 18 Review by Apostolidis (n 5). 19 Jean Charpentier (ed), Le droit des peuples à disposer d’eux-​mêmes: Méthodes d’analyse du droit international. Mélanges offerts à Charles Chaumont (Pedone 1984). From Charles Chaumont himself, see also the very important article Charles Chaumont, ‘Le droit des peuples à témoigner d’eux-​mêmes’ (1976) II Annuaire du tiers monde 15 (hereafter Chaumont, ‘Le droit des peuples à témoigner d’eux-​ mêmes’). Also in the Mélanges dedicated to Charles Chaumont you will find a whole series of very interesting articles by French third-​world-​oriented scolars of the time, including Jean Charpentier,

Charles Chaumont’s Internaitonal Legal Theory  365 in the context of the 1950s–​1970s. For Chaumont, there was an essential difference between a classical international law that only reflects the will of governments and a contemporary international law in which the ‘people’ are emerging as a historical reality on the international scene during the era of decolonization. To be precise, he principally aimed at peoples being dominated, colonized, or exploited. To Chaumont, the fact that these peoples suddenly burst onto the international scene brings about a whole series of consequences. First of all, in the field of legal battles, to put the emergence of the colonized peoples at the outset of one’s thinking necessarily comes down to favouring ‘norms of action’ (normes d’action) over ‘norms of language’ (normes de langage).20 Thus, in Chaumont’s words, struggles for national liberation are first of all the expression of a right of peoples to bear witness to themselves,21 but in a way that eventually overturns the existing politico-​legal categories. If the colonized peoples’ struggles for national liberation intensify, they can effectively lead to a change of roles from witness to actor, transform the existing power games and change our conception of the state. This constitutes the basis of the norms of action. That being said, Chaumont was a typical third-​world-​oriented internationalist of his time because his thinking about groups of peoples being a new actor in international relations does not incite him to propose a dismantling of the state as such, but simply to modify our understanding of it. Like other third-​ world-​oriented scholars following the aspirations of the new decolonized states, he vigorously defended the concept of sovereign nation-​states. He went even further by inferring from it that the sovereign state is only ‘the expression of a national existence’, which (strictly speaking) elevates the nation to the status of a precondition for the state.22 In doing so, he demonstrated his opposition to any construction that would be genuinely supranational, as the contemporary international law he wanted to consolidate rests entirely on the state and thus on a system of sovereign nation-​states. This is what today, in the eyes of new generations, makes him appear as very ‘classical’. But in light of the decolonization processes that were taking place at the time, the constitution of the decolonized peoples in sovereign states appeared to him to be the only politico-​legal framework that allowed for an expression of the liberty of people. The sovereignty of the state thus represented the most reliable legal translation of the independence that was hard-​won by the people under ‘Autodétermination et décolonisation’; Françoise Batailler-​Demichel, ‘Droits de l’homme et droits des peuples dans l’ordre international’; Adrian N’Kolombua, ‘L’ambivalence des relations entre le droit des peuples à disposer d’eux-​mêmes et l’intégrité territoriale des Etats en droit international contemporain’ and finally Monique Chemillier-​Gendreau, ‘Droit des peuples à disposer d’eux-​mêmes et réfugiés’. 20 Apostolidis (n 5). 21 Chaumont, ‘Le droit des peuples à témoigner d’eux-​mêmes’ (n 19). 22 Already developed in an article prior to his course in 1970 and considered to be one of his most important ones: Charles Chaumont, ‘Recherche du contenu irréductible du concept de souveraineté internationale de l’Etat’, in Hommage d’une génération de juristes au Basdevant (Pedone 1960) (hereafter Chaumont, ‘Recherche du contenu irréductible’). This was pointed out by Monique Chemillier-​ Gendreau, ‘Introduction’ in Charpentier, ‘Le droit des peuples à disposer d’eux-​mêmes’ (n 19) X.

366  Emmanuelle Tourme Jouannet the old colonial occupation, as well as the strongest claim of national liberation movements. Thus, Chaumont is not simply holding on to the legal definition of the sovereign state with regard to its independence, since he very firmly insists on its sociological base—​in other words, he argues for the people that constitute the nation. In a very important article, he hence called into question what he calls the ‘irreducible content of sovereignty’ and concluded that this irreducibility is the vitality of the people.23 This explains why every state is unique and irreducible, since it is itself based on its unique and singular people. Another subtle, but essential, point is that he associates the rights of the human being with a peoples’ right to self-​ determination.24 He does so by legally linking individual rights to the existence of a nation, without however clearing up a certain ambiguity that can be traced in many debates and post-​colonial texts; even though human rights are recognized, they are still intrinsically linked to the nation-​state. Contemporally speaking, this is where the seed of possible human rights oppression is sown in the name of national sovereignty and the interests of the people. Nevertheless, it is still necessary to identify what constitutes a ‘people’ and how to prove their existence in order to acknowledge the right to self-​determination and to form a sovereign state; this question has constantly preoccupied and opposed the actors of that time and which the UNGA has tried to resolve in a very questionable way by identifying what might be called ‘good’ national liberation movements, which it then recognized as such, as well as ‘bad’ ones that were not recognized. Chaumont does not prescribe to this approach. He rather looks for criteria rooted in historical realities, such as the one he lived through during the Nazi occupation of France or the one he was experiencing during the time of anticolonial struggles.25 That is where he puts his realistic method to work. The criterion he ultimately retains from this is not surprising, given the experiences that he refers to and which, even though they are subject to multiple interpretations, are personal. As a result, he effectively considers that a people are ‘identifiable’ as soon as the individuals of which it is composed are ready to sacrifice their life for the group. In other words, the very fact that death is possible and even foreseen in order to defend the group makes this group a genuine people, hereby bearing witness to its own existence. It is in this mysticism of sacrifice in the service of the group’s cause that he saw as the ultimate and highest proof. However, even if he effectively relies on a concrete and factual element by considering the ultimate sacrifice to defend one’s people (and even if this element is deeply rooted in historical battles that have been fought) it still remains eminently debatable if it really an apt criterion to confirm the existence of a people. His approach to determine the existence of a people—​and 23 Charles Chaumont, ‘Recherche du contenu irréductible du concept de souveraineté internationale de l’Etat’, Hommage d’une génération de juristes au Basdevant (Pedone 1960) 149 (hereafter Chaumont, ‘Recherche du contenu irréductible’). 24 ibid. 25 Chaumont, ‘Le droit des peuples à témoigner d’eux-​mêmes’ (n 19) 27.

Charles Chaumont’s Internaitonal Legal Theory  367 consequently its right to self-​determination—​was solely based on the observation of a historical social phenomenon examined from the vantage point of his personal contemporary reality. The people, composed of members that are ready to sacrifice themselves in its name, in a sense bears witness to its own existence and to the freedom it must be granted to choose its own way by risking death, or even the extermination of the group as such. He did not want to reduce this criterion to a set of abstract rules that are then to be used to assess reality, which would be characteristic of classical international law. Thus, he attempted to establish a practical description of reality that corresponds to a people in struggle. For Chaumont, a specific historical context containing the criterion of individual or collective sacrifice represents a contingent criterion applied on a case-​by-​case basis to every single movement; it is only then that this ultimate proof for the existence of a people has been furnished. According to Chaumont, the existence of a people-​nation being thus proved, the group is consequently also entitled to the fundamental right to self-​determination, if necessary by armed force, and to build a sovereign and independent state. It also automatically follows from it that two main principles of classical international law, which are crucial for decolonized peoples to maintain themselves as states, are applicable to them: the principle of territorial integrity, and the principle of non-​ interference in the internal affairs of another state. From this comes Chaumont’s extremely virulent condemnation of external interventions, notably by former colonizers or great hegemonic powers, which he legally qualified as armed aggressions. The following excerpt from his 1968 article on the American intervention in Vietnam declares: The first steps of demystification, in Vietnam as well as in other places where a rich state assumes power over a poor nation, are to understand that no political system has, a priori, an absolute or universal value, but that liberal capitalism, just like authoritarian capitalism or socialism in its various forms, can at the same time be abhorred by some and preferred by others; that peoples’ right to self-​determination is not linked to a predetermined system; that freedom can have many meanings, and that it is for every people to decide exclusively on its own what meaning it wants to prescribe to it, and that, if it chooses suffering and the risk of extermination over the ‘freedom’ that it gets offered by foreign soldiers and bombers, it is because this meaning of freedom corresponds better to its right to self-​determination than the meaning others want to impose on it from the outside, and consequently also to its testimonial value; and that finally the vocation to intervene which is being claimed by the United States is nothing but an avatar of the ‘reason of the strongest’ as it has been immortalized by La Fontaine.26



26

Chaumont, ‘Analyse critique’ (n 8) 85.

368  Emmanuelle Tourme Jouannet

3.  Solutions for a new international law By denouncing the formalism and conservatism of classical international law, Chaumont advocated for the emergence of a new post-​colonial international law as a result of national liberation struggles and the new perception of the law that they involve, as well as for his own method of dialectical analysis being applied to international law. This chapter simply explains what, according to Chaumont, is part of this new international law. According to his general course of 1970, it is best to first determine what is not part of it. He specified that the term ‘new international law’ is often associated with Alejandro Alvarez, who had chosen it as a title for his series of books.27 But Alvarez’ new international law was in fact the opposite of Chaumont’s. Where the former used an idealist and normative description of a law of solidarity, cooperation, and harmony between states and peoples (and which does not exist yet but is called for in the aftermath of two world wars), the latter linked his new international law to a realist, not idealist, method (mainly based on agreements as a temporary means to resolve, most notably in favour of decolonized peoples, the contradictions that run through international society). It starts from the contradictions that mark international relations and undermine the international society in order to formulate a compromise through an international agreement.28 The new agreements or customs (which to him simply are tacit agreements) express new legal rules as soon as their underlying power relations change with decolonization and the new contradictions generated by it. Two remarks are necessary here. Firstly, Chaumont gave a central role to the international agreement as a means to transform classical international law. By attributing this kind of value to the international agreement, Chaumont simultaneously substantiated the sovereignty of the state, as an agreement ultimately is an expression of its will. Since agreements and customs are seen as a decisive means to introduce new legal principles and norms, Chaumont attributed a privileged status to them, to the detriment of general principles of law as well as of jus cogens.29 He obviously argued in favour of abandoning certain customary rules and agreements to which the decolonized states had not given their consent. But he simultaneously mocked those who, at the time, feared a complete abandonment of classic legal principles, since in a certain number of cases the decolonized states had already accepted established norms or had already been integrated into all existing international institutions. The second remark follows directly from the first one. Since for Charmont the agreement in its express or tacit form (customs) allows for the temporary over-​ride 27 See Alejandro Alvarez, Le Droit international de l’avenir (Institut américain de droit international 1916) and Alejandro Alvarez, Le droit international nouveau dans ses rapports avec la vie actuelle des peuples (Pédone 1959). 28 Chaumont, ‘Cours général’ (n 7) 347. 29 ibid 462.

Charles Chaumont’s Internaitonal Legal Theory  369 of existing contradictions in a new and positive sense, he, like Alvarez, remained an advocate of progress. Like many of his contemporaries, and like all Marxists or Maoists, he believed in social progress—​in this case in the progress of international society. But, like them, he saw the ‘comprehension of the foundations of international relations, which are foremost shaped by contradictions’, and their overcoming by national liberation struggles as well as norms of action that were transposed into customary rules or new agreements, as the root of this progress. This corresponds to a Hegelian dialectical method, but as revisited by Marx and Mao and applied in a materialist and concrete way. During his course in 1970, Chaumont even repeatedly cited Mao Zedong while brandishing his ‘little red book’. In one of these citations, he picked up Mao’s idea of progress through a successive overcoming of contradictions: ‘struggle, failure, new struggle, new failure, new struggle again, and so forth until victory, this is the Marxist law’ and ‘the world is progressing, no one can change this general trend of history’ (citating President Mao Zedong, French edition, ch V).30 In other words, the dialectical method of analysing the contradictions in international law showed that solidarity can emerge from agreements, hence creating hope for a new law that they bring about. The old, classical international law did so, to a much lesser extent, since it rather concealed contradictions, thus generating grave distortions with reality, which ultimately led to a ‘distrust in the law’.31 With his concrete way of rethinking international law, which offered new epistemological and legal tools both to Western internationalists who, like him, were no longer satisfied with a classic law that proved to be contrary to their most profound convictions, as well as internationalists from decolonized peoples and national liberation movements, Chaumont and others like him raised hopes. As outlined elsewhere, the whole period of decolonization raised immense hope in millions of people living in these young nations, who finally saw the light of the day32. At this point, it is important to remember that, at the time, the third world created a great movement for a reform of classic international law, even within UN bodies33.

III.  A critical analysis of the theories of international law As mentioned, Chaumont based his analyses on a detailed materialist dialectical examination of international law. Instead of elaborating on the details of theoretical foundations of his work, the remaining part of this contribution focuses on



30

ibid 348.

31 ibid.

32 Jouannet, Fair International Society (n 3) 19–​23. 33 ibid.

370  Emmanuelle Tourme Jouannet two concrete and interrelated aspects of his work and which are of particular relevance in this context. First, it looks at how one major strand of Chaumont’s work elaborates in detail on how doctrinal discourses on international law can entail an aggravation of the phenomenon of mystification. To oppose the ideology that is being transported by these doctrinal currents, it is necessary to reconstruct a scientific discourse that does not itself become a prisoner of the very same ideology it denounces. The next section then addresses the question of the distinct nature of Chaumont’s discourse as well as the role he assigns to himself as an academic lawyer committed to the cause of dominated peoples. At this point, the great third-​ world thinker finds himself prisoner of the weaknesses of his thinking.

1.  Challenging traditional currents The general principle of his challenge was quite simple, because it built on the same theoretical foundations like the one developed for international law. It is not only the law that amounts to an ideology—​there are also all the so-​called sciences of law and doctrinal currents that aided the diffusion of a formalist international law and thus directly contributed to the dissimulation of power relations and socio-​ economic structures that work to the detriment of oppressed peoples and are the ultimate explanation for their condition. Doctrine is therefore not neutral, as positivists claim, but is itself an ideological instrument serving individual interests. For Chaumont, revealing the ideological nature of doctrine did not as such amount to a critique; rather, it was the dissimulation of this ideological nature that represented the major fault. Hence, the twofold consideration found in his work. First, in some way, certain doctrinal currents continued to maintain a vision of international law which did not entirely correspond to the positivist reality of contemporary international law any longer. As a result, they worked with two successive mystifications: first, throughout the period of classical international law, they contributed to shaping a law that was formalist, unjust, and profoundly unequal; then, once classical international law began to evolve positively into a contemporary international law, more representative of the interests of all and especially of the colonized peoples, they continued to develop a classical vision of the law that masked this contemporary progress. Particularly enlightening of his critical analysis, in 1970 Chaumont declared in his course: ‘Even if classical law is disappearing as a historical phase, it is not vanquished as a method or a vision’.34 Secondly, this is also the reason why Chaumont seemed much more severe with respect to doctrines that, according to him, profoundly concealed their ideological nature under the guise of science, justice, and morality, namely, the idealist and



34

Chaumont, ‘Cours général’ (n 7) 356.

Charles Chaumont’s Internaitonal Legal Theory  371 naturalist doctrine. On the other hand, he hence gave credit to a realist positivism that did not consistently try to hide his true nature and which, above all, became less contemptuous in the analysis of its object. It becomes evident upon a more detailed examination of Chaumont’s critique vis-​à-​vis different doctrinal currents that he effectively treated them in an unequal manner. The most severe critique is without doubt directed at the sociological objectivism of Georges Scelle.35 It demonstrates that this objectivist sociologism stands exactly for what Chaumont condemned: a formalist theory of international law. It uses an idealist and non-​realist conception of international law, but refuses to be categorized as such. In doing so, Scelle becomes totally lost in his allegedly realist analysis of the law by denouncing one of the most fundamental realities of international law—​the sovereign will of the states—​as a useless fiction. He is therefore not only guilty of defending an idealist law that does not exist, by presenting it as positive law, but mainly of having completely misunderstood the reality of contemporary international law. Chaumont’s allegation against Scelle was thus not based on the principle of a sociological analysis as such, meaning the principle of an analysis of the law as a social fact, but on having developed an idealist argumentation under the guise of an ostensibly sociological approach. Simply put: he rejected Scelle’s sociologism to a lesser extent than his dogmatic objectivism and the dualist presentation of a positive and an objective law, as jus gentium and not as a law of states. This allowed him to oust naturalism and thus the part of idealism, which was underlying such a fundamental dualism. In a similar vein, Chaumont moreover denounced the not only ideological, but also deeply erroneous character of other doctrines that misconceived the major factor that is the state’s will. This is how authors like Quadri or Jenks, who attempted to transfer the will into social structures, also fell into the twofold trap of idealism and formalism, as there is no evidence of an international society having the capacity to foster a collective will as a source of law36. At the same time there are nonetheless links between Scelle’s sociologism and Chaumont’s realist sociological analyses that deserve a closer look. That is also why Chaumont gave credit to classical state voluntarists for exposing (at a certain point in time in a straightforward manner) the law in its unequal form, as well as for the general cognisance of the fact of an insurmountable sovereign will. He

35 ibid 345 and the complementary observations on the official doctrine: see Robert Chavin, ‘Le droit international tel qu’il a été enseigné: Notes critiques de lecture des traités et manuels (1850-​1950)’ in Charpentier, ‘Le droit des peuples à disposer d’eux-​mêmes’ (n 19). This is despite the fact that he pays tribute to Scelle in an article published as part of his Melanges: Charles Chaumont, ‘Perspectives d’une théorie du Service public à l’usage du Droit international contemporain’, in La technique et les principes du droit public: Etudes en l’honneur de Georges Scelle, vol 1 (LGDJ 1950) 115–​16. Sociologism brings them closer together but objectivism and voluntarism is what divides them. In any case, Chaumont remains much closer to Jules Basdevant than to Georges Scelle or Louis Le Fur. See Chaumont, ‘Cours général’ (n 7) 360. 36 Chaumont, ‘Cours général’ (n 7) 361.

372  Emmanuelle Tourme Jouannet even fiercely defended voluntarism and positivism against a so-​called objectivism; it was this that finally introduced elements of irrationality. Incidentally, the approximation to these three contemporary currents of positivism, voluntarism, and realism is not devious. While not subscribing to the philosophical current as such, from positivism Chaumont retains the methodological objective of exclusively holding on to observable, positive facts. With voluntarism he shared the conception of legal norms being essentially thought of as international agreements. This vision was reflected by Chaumont, the same as by voluntarists, in a support of realism in its French version.37 Since the emergence of international law, the French realist current has continuously attempted to refocus the debate on concrete realities and to assert the acceptance of sovereign acts, notably of the will as primary and fundamental expression of this sovereign liberty. Consequentially, Chaumont subscribed to this realist-​voluntarist tradition.38 More precisely, he shared with voluntarists this primacy of the states’ will in the genesis of a norm, but he deducted a conflicting vision of international relations from it, which moved him closer to realism in the proper sense. To Chaumont, this nuance is fundamental: the law does not only stem from a congruence of wills, but from the power relation of which this congruence is the expression. The approximation to these currents is nevertheless only partial, since it does not superpose the intrinsically dialectical scope of Chaumont’s analysis. For Chaumont, the main shortcoming of positivist voluntarism was its misjudgment of the fundamental fact that international law follows a constant dialectical development. As a result, this current only offers a static version of international law in which the international realities are depicted in a rigid manner without taking into account the phenomenon of contradictions. As a result, voluntarist positivism is also formalist because it confines itself to the ‘observation of legal frameworks without considering the need to acknowledge that contradictions exist’39. In other words, the limitation of classical voluntarism lies with the fact that it analyses the states’ will in an abstract, not a concrete, manner, without taking into account neither the infrastructures which determine them nor their heterogeneity. This also explains why an international agreement is not, as put forward by classical doctrine, a simple congruence of wills, but a compromise between concrete and heterogeneous wills. It is also to be recognized that the wills that make for an agreement are conditioned by infrastructure. By virtue

37 On the difference between French and American realism see Emmanuelle T Jouannet, ‘French and American Perspectives on International Law: Legal Cultures and International Law’ (2006) 58 Maine Law Review 291. 38 It becomes evident here that Chaumont has without doubt been influenced by his mentor in international law, Jules Basdevant, whom he cites on multiple occasions; see, for example, Chaumont, ‘Cours général’ (n 7) 365. See also Chaumont, ‘Recherche du contenu irréductible’ (n 23) 114–​15. 39 Chaumont, ‘Cours général’ (n 7) 344–​45.

Charles Chaumont’s Internaitonal Legal Theory  373 of revealing its shortcomings and demonstrating what really is ‘behind’ international law, the dialectical method thus ultimately replaces the method of logical analysis which is common to these voluntarist authors. Chaumont finally reduced positivist voluntarism to its dimension as an ideological apparatus which, as a superstructure, was conditioned by the dominant economic and social system. He denounced its theoretical inadequacy of not getting to the heart of the reality of international law due to its ideological blindness. This conclusion is not surprising, and provides an insight into how and why even in this regard, Chaumont placed himself in a radically different and not simply complementary position to positive analyses. But even though the epistemological and methodological break that has been unfolded earlier for ‘international law’ as an object of analysis produces the same effects with regard to the analysis of the ‘international doctrine’, it does nonetheless not solve the difficulties which come along with such a perspective. This leaves the age-​old question of how Chaumont evaluated the status of his own discourse on the law and in what role (as a researching and practising lawyer and as a scholar) committed to the defence of peoples’ right to self-​determination he sees himself.

2.  The problem of the subject and status of Chaumont’s discourse Again, the essential aspect of his contribution can be characterized as a doctrinal engagement with autonomous scientific and practical objectives. In the critique Chaumont formulated with regard to the law and the discourse on the law, there is an earnest attempt of emancipation from the law in its established form, from the analyses that have been made, as well as a rejection of the formalism of international law and the conservatism of doctrines. This desire for emancipation even led Chaumont to constantly claim a total doctrinal independence. It is striking how often he insisted on recalling his refusal both of Marxist orthodoxy as well as of being labelled in any other way. In noting this persistent aspiration not to see his thinking entrapped in specific doctrinal currents, the effort he has made in order to think independently of international law is clear. He also claimed to be doing scientific work by contrasting the idealism and formalism of other currents with his dialectical analysis of international law. Lastly, he not only positioned himself as a theoretical subject or thinker, but also as a practical subject obliged to defend a certain idea of international law, a committed actor who supports struggles, notably of peoples that are currently or have recently been decolonized. For Chaumont, whose whole life mirrored his commitment in favour of a certain idea of the law and his role in society, taking committed action to defend a specific idea of international law is a fait acquis. The idea of organizing a series of meetings with JP Colin and M Chemillier-​Gendreau to discuss this new way of conceptualizing

374  Emmanuelle Tourme Jouannet international law was a striking example because it bears witness to the fact that, beyond the purely theoretical concern of carefully undertaking this decoding of the existing law, there also is an underlying desire to form a group that is committed to this cause; a group that is certainly open to external personalities, but which nonetheless serves as an necessary tool of collective action. However, even if these reflections of Chaumont concerning his own status can be clearly defined in this way, they immediately create a difficulty. It does not become clear from the scheme he described how an ideology could effectively emerge from it that is dedicated to the rights of peoples and not instrumentalized by the dominating states of the international society. Further, how can one initiate a scientific discourse on suppressed or colonized peoples that is not totally ideological like the other doctrinal discourses, and how can one take sides with a particular evolution of international law that favours exactly those peoples? These are recurrent objections to any argumentation of the kind that Chaumont developed and applied to international law. But this chapter sticks to an easy and well-​known critique; Chaumont’s positions concerning his work are rather explored here in order to determine their own logic and the entirety of their implications. As for the nature of his work, it has already been emphasized that, from the beginning, Chaumont chose a perspective of demystification of international law for his analyses. This affirmation must however be understood and substantiated against the backdrop of his particular epistemology. Let us recall that, starting from the moment in which the norm as the ‘ought’ is established, it also becomes part of the ‘is’, since it is part of the psycho-​sociological reality of the moment and thus also integral part of reality. In addition, the legal norm also recreates the ‘is’ in form of a consecutive contradiction. The ‘ought’ can thus also be read through the lens of it being part of the ‘is’ as a positive fact and of recreating it. Chaumont stuck exactly and exclusively to a study of the material reality of the modes of production, disappearance, and impact of legal norms, as well as to a study of the norms themselves in their dimension as social facts. Let us also not forget that he rejected any attempt to search for a definition and a specific criterion of legality in order to not debate anything but its manifestation as a positive fact and the dialectical process of contradictions which explained the life of a legal norm. He deliberately avoided any study on what precisely could specify legality without reducing it to its material reality, not as a natural, but as a social, positive fact. By insisting on such a study of the material reality of legal norms, there would however be no place to distinguish between a science of the ‘is’ and of the ‘ought’. Consequently, studying an object that is as essentially normative as international law, characterized by ‘ought’ dimensions, becomes a sociological enterprise. This ultimate absorption of the study of international law by the study of sociological facts at this point conveys a radical sociologism from which Chaumont did not seem to shy away, but rather which he implicitly claimed to be the only possible way to understand the momentary and transitory truth of

Charles Chaumont’s Internaitonal Legal Theory  375 international law.40 He certainly did not use the term sociologism, except in a negative sense aimed at criticizing his objectivist excesses. As mentioned, he developed a realist theory of international law, which distances itself from what can be called the sociological current in law at that time in France, the most characteristic trait of which is its anti-​state orientation. But terminology is not important here, because it is in any case about demonstrating the manner in which he reduced the study of international law to one of its external and material factors of comprehension within a particular, given, socio-​economic system. As others have pointed out it is also worth noting that his theory of law was actually a sociology of law. This conclusion is by no means pejorative and does not a priori compromise the scientific nature of his approach. It is a sociology of international law which can, with familiar reservations, be qualified as a Marxist sociology of law. It also is a historical sociology of international law in the sense that it does not study law in its purely sociological dimension, but from a socio-​historical perspective, which blends the synchronic angle of sociologists with the diachronic angle of historians. Chaumont was a renowned lawyer who undertook several strictly legal analyses, notably in his function as a legal counsel. That is why only his approach to international law as an overarching project, in which he resorts to dialectical analysis, and studies directly linked to it, are part of his sociology of law. With this in mind it might also be possible to resolve a certain misunderstanding. Taking up one of the oldest criticisms of Marxism, some of the members of the École de Reims reproached Chaumont for not having reconstructed a real doctrine of law. However, even though it is perfectly true that he did not accomplish such a reconstruction, there is no reproach as he never really pretended to do so. The criticism brought forward against him hence is partially inadequate, as it does not take into account the self-​sufficiency of Chaumont’s analyses and the coherence of his overall scientific project. Since Chaumont’s project consisted in unearthing a truth that is hidden behind the world of law and which explains the purpose and the life of legal norms, this disclosure is in itself enough. It does not lead to the reconstruction of another theory, because it was not essential to this project to develop a new system of thought, but only to describe an evolving process. One should also refrain from characterizing his work only in light of its methodological aspect, since his dialectical method was rooted in certain foundations of Marxist theory: the ultimate primacy of the economic and social as infrastructure and the retention of a non-​hyper-​rationalist historicism. His scientific project thus essentially remains an epistemological project of understanding the international legal reality through a dialectical reduction of law and internationalist doctrines to their status of simple ideological instruments.

40 This is the exact same kind of reduction that is being undertaken by Evgeniĭ B Pashukanis, La théorie générale du droit et le marxisme (Jean-​Marie Brohm tr, Etudes et documentation internationales 1970) 83 et seq, even though he, like Chaumont, criticizes sociological theories. This seems inevitable and at the same time logical with this type of approach.

376  Emmanuelle Tourme Jouannet These few considerations allow us to conclude on the nature of Chaumont’s work, but they do not help us in dealing with the issue concerning his definitive status as a committed scholar. Two questions come up here. It is first of all an unresolved question how Chaumont could justify his own doctrinal positions, even those of sociological nature, if his own discourse on the law inevitably seemed entangled in an ideological process. Secondly, how was Chaumont able to reconcile his doctrinal project with the role he saw himself in as a lawyer? As mentioned, the quintessence of his analyses shows that no legal discourse can be neutral, meaning that the position of ideological neutrality adopted by classical positivism and normativism constitutes a theoretical and practical error. It amounts to a stabilization and consolidation of international law in its current form, which is unjust and unequal. A lawyer can thus not adopt the position of a positivist lawyer-​technician who is content applying the law as it presents itself to him: he needs to discover what is ‘behind the law’ and reveal the process of ideological camouflage that legal norms imply. Consequently, he also must denounce a law that continues to serve the interests of the most powerful. Of course, this does not mean resorting to revolutionary action, but it nonetheless conveys the necessity to be a somehow committed, maybe even militant, lawyer, ready to act upon reality with the help of legal analyses and knowledge. In order to better respond to the questions that are formulated here, it is necessary to return to Chaumont’s discussion on the notion of ideology and its relation to the scientific discourse, which has been at the heart of many discussions at the Reims symposiums, and is in effect at the same time central and problematic as it constitutes the starting point from which the status of the theoretical and practical subject has to be conceived. Chaumont believed that there are two possible functions of ideology: ideology as the dominant’s instrument of oppression and as a prospective means of action for the dominated; ideology as a ‘justification of class domination’ and ideology as ‘justification of class struggle’.41 This classical dichotomy of ideology is absolutely essential for Chaumont’s thinking. He even specified that this functional duality of ideology must be replaced by a dynamic dialectical perspective that enables the contrasting of a classical international law of conservative and alienating ideology, with a new international law built upon a subversive and liberating ideology. Both cases certainly concern ideologies which conceal special interests, but it is undeniable that there is a ‘bad’ ideology, meaning the conservative one, and a ‘good’ ideology, that is, the liberating one. It is easily understandable to what extent this dichotomy was fundamental for Chaumont, because it allowed him to justify the positive value given to certain contested claims in international law, in particular, those concerning peoples’ right to self-​determination. By furthering the understanding of dialectical phenomena and making new proposals via the famous ‘norms of action’



41

Chaumont, ‘La relation du droit international’ (n 4) 8.

Charles Chaumont’s Internaitonal Legal Theory  377 of colonized or decolonized peoples, it also allowed him to justify why it is necessary that it prevails over the conservative power of the existing law and official doctrine. To put it differently: it justifies the theoretical and practical choices that a lawyer has to make. As interesting as it may be, this effort also entails two difficulties to which there is still no solution. First of all, it is ultimately not clear how Chaumont was able to establish the distinction between the two ideologies. If it is the deployment of economic power relations that explain the ideologies, how is it possible to criticize one and not the other without reintroducing a value judgement for which there seems to be no foundation? Reintroducing the problem of what is just and what is not cannot be done without reference to an ideal—​a certain idea of what is better—​which again seems to contradict his understanding of reality. To avoid this difficulty, one could in fact, like Chaumont, suggest that it is the evolution of history and of the economic and social forces that necessarily makes it possible to disseminate a good ideology, hence leading to this result. But even if that is the case, Chaumont’s philosophy cannot escape the pitfall of such a historicization of his standpoint, which makes the distinction between the two ideologies particularly delicate and simply doubles the difficulty. If one is effectively to take into account the emergence of a liberating ideology, that of a right of the peoples, as an observable fact, does this also mean that every ideology that resists the positivist conservative ideology must be considered desirable, even if it is not based on the right of the peoples? As an example, take Chaumont’s criterion of individual sacrifice as proof of the existence of a ‘people’ entitled to a right to self-​determination. What would he think about today’s acts of terrorism to which certain groups resort in a sacrificial manner, placing them entirely outside the law and international society? Moreover, it also follows from this that the status and position of a lawyer are not more certain than those of a practical subject, because if every discourse is ideology, than it makes no difference if it is good or bad ideology: if one is doing science, it still remains nothing but ideology. There is no established demarcation between science and ideology. This impasse seems insurmountable to a point that even in Chaumont’s works, at least to our knowledge, there is nothing to be found in support of an answer to this twofold question. We thus have to leave it open here, only remarking that it cannot be understood without taking into consideration his rejection of hyper-​rationalist visions of history as well as his project of furnishing a dialectical explanation of legal phenomena. However, it is impossible not to highlight the courageous, but also contradictory (and in the end tragic) character of this attitude. Its courageous aspect lies in the fact that by committing himself in such a manner, Chaumont was inevitably marginalizing himself and was consequently banned from a certain scientific community. At that time, he exposed himself to extremely violent criticism—​the echoes of the last convulsions of the French colonial empire. Its contradictory character followed from his fundamental hesitation between two

378  Emmanuelle Tourme Jouannet positions: the position of the legal scientist and the committed or militant lawyer. As an observer of the dialectical reality at work, he basically accepted limiting his work to the unveiling of this process, renouncing any desire to also transform it, since it is from this process that the solution and the inversion of power games in favour of the rights of the peoples and the oppressed has to emerge. On the other hand, awareness of the relations of inequality through his work of scientific analysis contributed to his work for a more just society. This poses an insurmountable contradiction, which Chaumont also directly acknowledged in consecutive remarks. This might be the proof that the epistemologies of the ‘north’ have run out of air, notwithstanding their emancipatory self-​concept, since they continue to imply a standardizing view of reality, based on a dialectical historical evolution taking place before our eyes. There is a scientism inherent in Chaumont’s thought here, even though he would have wanted to distance himself from it, and which besides gives his thinking a strongly Eurocentric character.42 The tragic character of this attitude finally stems from a fact that could only have affected a man as lucid and sincerely engaged as Chaumont: it concerns the complete and utter failure of historical communism. * * * In conclusion, it has to be emphasized to what extent Chaumont’s work during the period of decolonization was fundamental. Concerning his contribution to the history of international theory in general, his work can be read as an important moment in it, since it represents not only one of the most sophisticated transpositions of the method of dialectical analysis to international law, but also the bedrock of a school of thought which is still extant, even if marginalized. It is a doctrinal current that, in any case, feels more comfortable, or is being listened to more intensely, rather in historical moments of great confrontation than in a more stable era. Without doubt, it is precisely through this school of thought that Chaumont’s work has indirectly helped to influence part of the French doctrine: by comforting its contemporary orientation towards realism, but also by making the old French colonial empire and all of its conservative representatives apprehend the necessity of accepting the liberation of its old colonies. That is also why it is equally interesting to delve into Chaumont’s relation to Marxism. With the collapse of real communism and the emergence of the unacceptable ethical and political consequences of doctrinal Marxism, part of his thinking effectively became obsolete and was doomed to fail. Even though this finding is undeniable, the intellectual journey Chaumont undertook nevertheless retains a manifest utility. It was a journey that 42 See the famous critique of these ‘epistemologies of the North’ in favor of a ‘sociology of the emerging countries’ by Boaventura de Sousa Santos, Epistémologies du Sud: Mouvements citoyens et polémique sur la science (Desclée de Brouwer 2016).

Charles Chaumont’s Internaitonal Legal Theory  379 effectively seemed to be motivated by a twofold intention. First, the strong desire to break with formalism of any type, which is based on Marxist analyses and dedicated to first and foremost serve the peoples and not the states. However, it is tempered by an equal will of permanent comprehension, of contestation of the concepts and methods being used, as well as of the difficulties that his own combat in favour of anticolonial struggles called forth. At a time marked by anxieties caused by globalization, Chaumont is already beginning to regain a certain critical audience,43 It is thus most certainly not for the assumptions of his thinking, the validity of which is strongly questionable today, but for his battles in favour of the peoples and the contestation and doubts that marked him, and which must continue to nourish our view of contemporary international law, that this great lawyer will continue to be treasured.

43 See, for example, Monique Chemillier-​Gendreau and Yann Moulier-​Boutang (eds), Le droit dans la mondialisation: Une perspective critique (Actes du Congrès Marx international II, Presses Universitaires de France 2001) 109 and Emmanuelle T Jouannet, ‘Regards sur un siècle de doctrine française du droit international’ (2001) 46 Annuaire Français de Droit International 1, 22 et seq.

17

Literal ‘Decolonization’ Re-​reading African International Legal Scholarship through the African novel Christopher Gevers

Each generation must discover its mission, fulfill it or betray it, in relative opacity . . . .[W]‌e must shed the habit of decrying the efforts of our forefathers or feigning incomprehension at their silence or passiveness. They fought as best they could with the weapons they possessed at the time, and if their struggle did not reverberate throughout the international arena, the reason should be attributed not so much to a lack of heroism but to a fundamentally different international situation. Fanon, ‘On National Culture’, The Wretched of the Earth (1959).

I.  Introduction For a number of reasons, the opening lines of Fanon’s 1959 essay are an instructive place to begin this chapter on decolonization and African international legal scholarship. First, they suggest an ethics of reading the ‘efforts of . . . forefathers’—​that is, sympathetically but not uncritically (as Fanon himself proceeded to demonstrate)—​one that this chapter takes up in respect of the scholarly efforts of African international lawyers during ‘decolonization’ (ie, 1955–​1975). Second, Fanon calls attention to the need contextualize these efforts—​including their apparent ‘silence or passiveness’—​in order to take into account both the ‘weapons . . . possessed at the time’ and the prevailing ‘international situation’; an attentiveness to context that similarly informs this chapter. Third, central to Fanon’s sympathetic critique of ‘colonized intellectuals’ (ie, writers, artists, poets) was their problematic use of ‘techniques and a language borrowed from the occupier’1—​or colonial forms—​a critique taken up by Ngugi’s wa Thiongo and extended here to the relationship between African international lawyers and their own colonial form (ie, international 1 Frantz Fanon, The Wretched of the Earth (Grove Weidenfeld Press 1963) 160 (hereafter Fanon, The Wretched of the Earth). Christopher Gevers, Literal ‘Decolonization’ In: The Battle for International Law: South-North Perspectives on the Decolonization Era. Edited by: Jochen von Bernstorff and Philipp Dann, Oxford University Press (2019). © The Several Contributors. DOI: 10.1093/oso/9780198849636.003.0018

384  Christopher Gevers law). Finally, Fanon’s essay was provoked by the 1959 Second Congress of Black Writers and Artists in Rome, which in turn inspired the 1962 Conference of African Writers of English Expression in Makarere—​an event that is central to the rereading of African international legal scholarship proposed here. The chapter will proceed as follows: Section II briefly sets out the reading of African international legal scholarship, which divides it into two ‘streams’—​‘weak’ and ‘strong’2 (or ‘contributionist’ and ‘critical’)—​focusing in particular on the work of TO Elias and Umo Umozurike as archetypes of these two ‘streams’. The chapter seeks to problematize this characterization of African international legal scholarship by re-​reading it through African literature.3 In order to do so, Section III returns to founding moments of these two disciplines, which took place in the midst of ‘decolonization’: the 1961 World Peace Through Law conference in Lagos and the 1962 Conference of African Writers of English Expression in Makarere. Reading the work of African international lawyers through their literary counterparts reveals how initially both adopted a ‘literal’ account of decolonization; one that did not consider the ways in which their respective colonial forms might need decolonizing themselves, instead focusing on ‘Africanizing’ the content of their craft and confident of their ability to do so. In the years that followed, African writers returned—​literally and figuratively—​to Makarere to reconsider the colonial ‘content of the form’ and re-​define ‘decolonization’ in the process; Ngugi wa Thiongo concluding in the late 1970s that true decolonization required nothing less than abandoning the English novel altogether. The chapter argues that reading the work of Elias and Umozurike through these debates among African writers renders a more nuanced account of African international legal scholarship and decolonization. Section IV extends this analogy by placing the contemporaneous works of these international lawyers and writers in their broader political and intellectual contexts. A close reading of Elias’ Africa and the Development of International Law (1972) (hereafter Africa and International Law) and Umozurike’s International Law and Colonialism in Africa (1979) (hereafter International Law and Colonialism) reveals how these texts were structured by both their changing post-​colonial ‘presents’ (Fanon’s ‘different international situation[s]‌’), and their prevailing intellectual contexts (Fanon’s ‘weapons . . . possessed at the time’). In particular, reading Elias’s and Umozurike’s radically different histories of international law with an eye

2 James Thuo Gathii, ‘International Law and Eurocentricity’ (1998) 9 European Journal of International Law 184 (hereafter Gathii, ‘International Law and Eurocentricity’). 3 While international law has not been a focus of the turn to ‘law and literature’ generally, in recent times scholars from both side of the disciplinary divide have made attempts to remedy this oversight. Although the scholarship remains in its infancy. See Joseph R Slaughter, Human Rights Inc.: The World Novel, Narrative Form, and International Law (Fordham University 2007); Ed Morgan, The Aesthetic of International Law (University of Toronto Press 2007) and Christopher N Warren, Literature and the Law of Nations, 1580–​1680 (OUP 2015).

Literal ‘Decolonization’: The African Novel  385 to their literary and historian contemporaries goes some way towards explaining the comparative ‘weakness’ and ‘strength’ of their scholarship. The analogy between African international lawyers and writers, however, cuts both ways. While context might dampen the critique of Elias’ scholarship in the 1960s, it heightens that critique in the 1970s, when Africa writers responded critically to changing political and intellectual contexts, and international lawyers for the most part did not. The final section of the paper discusses how the vastly different influences of the ‘Biafra War’ on Elias and Achebe, and Umozurike’s conservative turn in the 1980s, call attention to the limits of ‘contextualization’, and the importance of biography and perhaps discipline.

II.  Introduction: the two streams of African international legal scholarship According to James Thuo Gathii, the body of international legal scholarship by African scholars can be divided into two ‘streams’. On the one hand, there is the ‘weak’ stream of African international legal scholarship, which ‘is largely complimentary of the liberatory claims of principles such as self-​determination as uncompromising tenets of world peace and indicators of the rejection of the colonial experience’, and ‘uncritically endorses the United Nations agenda in areas such as human rights and the right to development as having potential and being of continuing benefit to the formerly colonized countries’.4 Central to this scholarship is a ‘contributionist’ historiography, which ‘[re-​writes] international legal history to assail Eurocentricity and accommodate African participation’, while backgrounding ‘the imperial and mercantilist character of international law’.5 The scholarship of Taslim O Elias—​Africa’s most successful professional international lawyer and who became the first President of the International Court of Justice from the continent—​is emblematic of this ‘weak’ anti-​colonial stream. In an immense body of work spanning four decades, decolonization generally, and the specific anti-​colonial projects of his third-​world counterparts received little attention. When considered, they were placed within the story of ‘universal’ international law generally, and the rise of the United Nations (UN) in particular.6 In his seminal Africa and International Law, Elias proclaims the UN ‘the best forum for the airing of grievances about decolonization, apartheid, racial discrimination and colonialism’;7 then, having highlighted its founding principles and commitment to 4 Gathii, ‘International Law and Eurocentricity’ (n 2) 184, 189. 5 James Thuo Gathii, ‘Africa’ in Bardo Fassbender and Anne Peters (eds), The Oxford Handbook of the History of International Law (OUP 2012) (hereafter Gathii, ‘Africa’). 6 See, for example, ‘Preface’ in Taslim O Elias, Africa and the Development of International Law, V (Oceana Publications Inc. 1972) (hereafter Elias, Africa and International Law). 7 ibid 24.

386  Christopher Gevers sovereign equality among states, says that ‘there is little else that the new African states, jealous of their newly won independence, could wish or hope for’.8 Similarly, the issues of apartheid, racial discrimination, and colonialism are understood through the lens of the UN, when they are discussed at all. For example, Elias discussed the South West Africa cases—​the attempts by African states to legally challenge South Africa’s presence in that territory, a colonial vestige—​as part of the development of the International Court of Justice (ICJ), and not the project of decolonization,9 while the project to create a New International Economic Order (NIEO)—​the centrepiece of third-​world international lawyers during the 1970s—​ was notably absent in his scholarship until the 1980s.10 To a large extent, Elias’s scholarship is both a cause and effect of the particular history Elias tells of international law, which emphasizes Africa’s contribution to ‘universal’ international law and downplays colonialism as a negligible part of this larger story. This ‘contributionist’ history is set out in detail in Africa and International Law,11 but its traces are visible in his very first article on international law, written in 1963 in the midst of decolonization, where he discussed the 1885 Treaty of Berlin without referring to its role in colonialism.12 It is set out in detail in Africa and International Law which, in its opening chapter on ‘The Contribution of Africa to International Law’, makes a historical case for the universality of international law by setting out ‘the role which different parts of the so-​called Dark Continent played [in international affairs] since recorded history’13 (from ‘Ancient and Pre-​Medieval Africa’ and ‘Indigenous African States (300–​1500 A.D)’ until colonization and colonial rule). 14 He concludes that in pre-​colonial times 8 ibid. 9 Elias wrote about South West Africa on a number of occasions, focusing on the legal aspects of the ICJ decisions and their importance for international law. In Africa and International Law he concludes that 1971 Advisory Opinion, in which he had a special interest, ‘is on the whole a worthwhile contribution to international law and . . . the United Nations whose prestige, and that of the International Court of Justice itself, has thereby been enhanced’. See further Taslim O Elias, The International Court of Justice and Some Contemporary Problems (Springer Netherlands 1983) 350. 10 Elias made no mention of it in his 1979 book New Horizons in International Law (2nd edn, Springer 1992) (hereafter Elias, New Horizons), which considered the ‘more significant aspects’ of international law’s development since 1945. His first lengthy treatment of NIEO came in his 1982 book on The International Court of Justice and some contemporary problems, but its supporters might have preferred it if he hadn’t. 11 A version of which was presented the previous year at a UNITAR conference. The volume is divided into four sections: ‘Ancient and Pre-​Medieval Africa’, ‘The Indigenous African States (300–​1500 AD), ‘Beginnings of European Trade and Colonization’, and ‘The Period of Colonial Rule’. 12 Focusing instead on the technical aspects of the new treaty establishing the River Niger Commission. Taslim O Elias, ‘The Berlin Treaty and the River Niger Commission’ (1963) 57 American Journal of International Law 873–​82. 13 ibid 3. 14 He makes the case again in Chapter 2 (‘Government under Law’) through (colonial) anthropology and political science. Discussing ‘Government under Law’ in ‘African societies’, Elias concludes that ‘[i]‌n African law . . . the indigenous ideas of government are not essentially dissimilar to that of Locke and Rousseau and . . . that of Grotius as well’. Elias, Africa and International Law (n 6) 36. In respect of ‘Africa and the International Rule of Law’, Elias argues that ‘African customary law shares with customary international law the acceptance of the fundamental principle of pacta servanda sunt as the basis for the assurance of valid world order’; ibid 43–​44.

Literal ‘Decolonization’: The African Novel  387 these African polities—​including Carthage, Tripoli, Cyrenaica, Ghana, Songhai, Mali, and Monomotapa—​‘exchanged diplomatists and envoys, formed alliances and carried on their external relations in much the same way as their European counterparts’.15 Notably, Elias’ discussion of colonialism in this history is both brief and superficial. For Elias, colonialism itself was brief, while he places the beginnings of sustained European trade in the sixteenth century (when the ‘rough and tumble of commercial activities’ which resulted in ‘occasional inter-​State frictions’16), the ‘Period of Colonial Rule’ is limited to 1885–​1955 (or there about).17 Moreover, his discussion of colonialism glosses over its violence, and the role of international law in it (and vice versa). For Elias, colonialism involved the ‘constriction’ of African sovereignty, or ‘the substituted sovereignties of the European states’, as a result of which ‘the historic modes of international intercourse were closed to these indigenous States and kingdoms’.18 The problem of colonialism, for Elias, was the brief interruption it occasioned in Africa’s participation in international law. On this basis of this history, Elias later concludes: ‘The way is this clear for the emergent States of Africa today to be willing and ready to enter into new international relationships with other States, without feeling too much like strangers in the international community.’19 Against this, Gathii sets the strong stream of anti-​colonial international legal scholarship which focuses on ‘the claims and role of economic, political, social and cultural superiority/​inferiority in the historical relationship of colonized and colonizing countries in the past and present’, and ‘expresses [its] desire for self-​ determination and autonomy from all forms of external or neo-​colonial controls’.20 This stream scholarship is underpinned by a critical historiography that focuses on ‘the imperial and mercantilist character of international law’,21 and ‘examines Africa’s [present] subordination in its international relations as a legacy that is traceable to international law, and the other’.22 The scholarship of Umo Umozurike during the 1970s, and in particular his International Law and Colonialism, is emblematic of this ‘critical’ stream. In 1970 Umozurike published an article on ‘International Law and Colonialism in Africa: A Critique’ that told a very different story of international law, past and present, to that of Elias (the article would later form the basis of this book by the same

15 ibid 32. 16 ibid 12. 17 This is confirmed later when he refers to the ‘constriction imposed by colonial rule [on African sovereignty] in the preceding seventy years or so’; Elias, Africa and International Law (n 6) 23. 18 ibid 19. 19 ibid 45. 20 Gathii, ‘International Law and Eurocentricity’ (n 2) 184, 187 21 Gathii, ‘Africa’ (n 5) 6. 22 ibid 1.

388  Christopher Gevers name).23 Umozurike’s scholarship—​which included a book Self-​determination and International Law and articles on slavery, economic self-​determination, and International Humanitarian Law (IHL)—​was centrally concerned with the anti-​ colonial struggles of the time, adopting a critical disposition towards the present international order and arguing that colonialism, racism, and political economy (or ‘neo-​colonialism’) continue to shape its contours. For example, in International Law and Colonialism, Umozurike notes that although ‘[u]‌nder the U.N., international law has changed from supporting or acquiescing in colonialism to opposing it’, the human and material resources of South West Africa continued to be ‘ruthlessly exploited for the benefit of the white minority and the Western combines’.24 In contrast to Elias’ scholarship during the same period, Umozurike took an active interest in the critical projects of other ‘third-​world’ international lawyers, including the South West Africa occupation and NIEO. The former was a focus of his 1972 book Self-​Determination in International Law, and in an article published in the same year he argued (in contrast to Elias) that the ‘Namibia cases [at the ICJ] demonstrate the close relations between international law and international politics’ and the ‘crudity and inequality that still persists in aspects of the international relations of black and white states’.25 Umozurike took an early interest in the NIEO project, and in an 1970 article he argued for the right of newly independent states to nationalize foreign owned property under the principle of economic self-​determination (without compensation in certain circumstances),26 and ended it by noting: ‘Political self-​determination is . . . incomplete without economic self-​determination’.27 Later, in International Law and Colonialism, he noted that ‘[t]‌he call for a New International Economic Order is directed towards negating neo-​colonialism’.28 As with Elias, although to very different effect, Umozurike’s scholarship is a function in many respects of his critical history of international law—​set out in detail in International Law and Colonialism—​which begins by centring the slave trade and colonialism as ‘[t]‌wo of the foremost experiences the Africans had from contact with the Europeans’,29 and proceeds to discuss 23 Umo O Umozurike, ‘International Law and Colonialism in Africa:  A Critique’ (1970) 3 East African Law Review 46–​83 (hereafter Umozurike, ‘Colonialism in Africa’). It was also published in the Zambia Law Journal. The book also draws on other articles, including one published in 1971 on the African slave trade. (‘The African Slave Trade and the Attitudes of International Law Towards It’). 24 ibid 3.4. 25 Umo O Umozurike, Self-​Determination in International Law (Archon Books 1972) 220 (hereafter Umozurike, Self-​Determination in International Law). 26 Umo O Umozurike, ‘Nationalization of Foreign-​ Owned Property and Economic Self-​ Determination’ (1970) 6 East African Law Journal 90–​91. 27 ibid 99. 28 Umozurike, ‘Colonialism in Africa’ (n 23) 128. 29 ibid 1. The slave trade, Umozurike points out, resulted in ‘misery, death, destruction and impoverishment’ in Africa and ‘negated [its] political, economic, cultural and social development’, while contributing to the present-​day ‘prosperity of Western Europe and [the] USA’.

Literal ‘Decolonization’: The African Novel  389 international law’s role in both. For example, he locates international law’s origins in sixteenth-​century Europe ‘when the African slave trade was growing roots’,30 noting that international law not only facilitated, it but encouraged it. In respect of colonialism, like Elias he argues that ‘African peoples . . . were sovereign’ before colonialism, although he does not suggest their sovereignty was ‘substituted’ for that of European powers. Rather, he sets out in detail how African sovereignty was ignored or denied through various means (settlement, annexation, Treaties of Cession, Prescription and Inter-​European bilateral treaties).31 Furthermore, not only was international law a ‘handy instrument in the hands of the colonialists’ up until 1918,32 but also colonialism was intensified and consolidated during the ‘League period’ through the Mandates system and the unchallenged annexation of Abyssinia by Italy.33 Throughout the remainder of the text Umozurike refers back to the role of slavery and colonialism—​and its underlying racism and imperialism—​and its persistence in the present.34 On a first reading of Elias’ Africa and International Law and Umozurike’s International Law and Colonialism, and their scholarship more broadly, there is much to support Gathii’s classification of these two traditions as ‘contributionist’ and ‘critical’, ‘weak’ and ‘strong’, respectively. However, this classification it is limiting in some respects. It is necessarily broad-​brush in its approach—​implicating both the history and theory of international law, from 1960 until the present—​but as a result, it pays less attention to the context, political or intellectual, of both authors and texts.35 As a result, it overlooks the complex and changing relationship of their scholarship to ‘decolonization’, which was itself being contested at the time. One way to overcome these limitations is to reread it through African literature and its own engagement with ‘decolonization’.

30 Umozurike, ‘Colonialism in Africa’ (n 23) 7. 31 ibid 22–​24. There is a separate chapter on ‘Treaties Concluded by Europeans with African Kings before the 20th Century’ (and their legal effects thereof). 32 ibid 34. 33 ibid 51. 34 Umozurike’s history also differs from Elias in that it includes efforts of by Africans, and those of African descent as well, to resist colonialism. He discusses the early twentieth-​century history includes a section on ‘Pan-​Africanism and Colonialism’, and at various points he refers to these efforts (such as WEB Du Bois’ efforts at Versailles and the 1945 Pan-​African Congress in Manchester). While acknowledging that these efforts lay outside of international law, Umozurike nevertheless suggests that ‘the resolutions of the unofficial conferences had some influence, however small’. Umozurike, ‘Colonialism in Africa’ (n 23) 56. 35 It must be noted that Gathii himself acknowledged these risks when he first introduced his ‘weak’ and ‘strong’ heuristic in 1998, and called for more work to be done on the ‘contextual backdrop’ of African international lawyers. Gathii, ‘International Law and Eurocentricity’, 205. A  call which this chapter, belatedly, attempts to answer.

390  Christopher Gevers

III.  The battle over ‘decolonization’ 1.  ‘Literal’ decolonization at Makarere and Lagos In June 1962, the present and future African literati—​including Chinua Achebe, Wole Soyinka, Es’kia Mphahlele, and Ngugi wa Thiong’o—​met at Makarere College in Kampala for the ‘first get-​together of African authors writing in English anywhere in the world’.36 Aside from its historic significance, the gathering would be remembered for the debate that emerged among participants regarding whether ‘African literature’ could and should be written in colonial languages, a debate that would be revisited time and again over the following decades. The conclusion reached at Makarere, despite continued resistance from some, was that it was both possible and desirable to continue writing in English (albeit with irreverence).37 The position was summed up in a 1964 essay by Chinua Achebe, the ‘Father of African literature’, in which he called on his fellow writers to accept the universal status of English brought about by colonialism.38 African international lawyers had their own ‘Makarere’ meeting, of sorts, at the 1961 World Peace Through Law conference, which took place in Lagos six months prior.39 The meeting, arranged by the American Bar Association as part of a global project on World Peace Through Law, was called to ‘consider ways in which lawyers could work together globally to strengthen international law and legal institutions’.40 Elias was a prominent participant, and gave one of the keynote speeches in which ‘support for the international rule of law was strongly advocated’.41 In the end, the delegates unanimously endorsed the universality of international law—​as ‘[embodying] fundamental concepts of justice and morality common to civilized societies’—​and committed themselves to ‘working toward world-​wide acceptance and application of the rule of law in all international relations’.42 Had these discussions among writers and international lawyers assembled in Makarere and Lagos taken place today, they most likely would have been articulated 36 The Conference was organized by the ‘Mbari Writers’ and Artists’ Club of Ibadan’, and attended by forty-​five participants (writers, editors, literary critics, and publishers). 37 See Mphahlele, ‘Press Report’ (on file with author). 38 Chinua Achebe, ‘The African Writer and the English Language’, reprinted in Chinua Achebe, Morning Yet on Creation Day (Anchor Press 1975) (hereafter Achebe, Creation Day). 39 Earlier in 1961 lawyers from across the African continent had also met in Lagos for the African Conference on the Rule of Law, organized by the International Commission of Jurists and under the steerage of Elias as Conference Chair. See Laurence M Lombard, ‘African Conference on the Rule of Law Held at Lagos, Nigeria, in January’ (1961) 47 American Bar Association Journal 563. 40 Charles S Rhyne, ‘World Peace Through Law Conferences’ (1962) 56 American Journal of International Law 1001 (hereafter Rhyne, ‘World Peace’). 41 Thornburn Reid and James F Sams, ‘Conference on World Peace Through Law: Held at Tokyo, Japan and Lagos, Nigeria’ (1962) 48 American Bar Association Journal 649, 650. 42 These were contained in the Consensus of San Jose (adopted at the first World Peace Through Law Conference in San Jose in June 1961) which was unanimously endorsed at Lagos. Rhyne, ‘World Peace’ (n 40) 1004–​05.

Literal ‘Decolonization’: The African Novel  391 using the language of ‘decolonization’. However, much like ‘post-​colonialism’,43 ‘decolonization’ came to mean different things over time. It began as a quite literal de-​colonization, based on a ‘stubborn etymological literalness’ in which ‘colonies are what get decolonized’ and ‘decolonization is fundamentally a matter of politics (in the most conventional sense), state sovereignty, and the transformation of colonies into independent nation-​states’.44 In this ‘thin’ account of ‘decolonization’, colonial forms—​be they the English language (or the novel itself) or international law—​were neutral, if not natural; they were to be embraced, either pragmatically or even emphatically in order to be turned against the centre. This account of decolonization underpinned the confidence with which both African writers and international lawyers embraced their respective colonial forms in the 1960s, confident that they could make the English language and international law ‘their own’ without residual colonial influences. It is this literal construction of ‘decolonization’ that Elias adopts in Africa, where decolonization is equated with formal independence. He refers to ‘the process of decolonisation [which] . . . goes on apace until all [dependent and non-​self-​ governing territories] become free and equal independent States’.45 To the extent that it is discussed at all in,46 ‘decolonization’ is figured as ‘a linear, diplomatic transfer of power from colonial to postcolonial status’.47 There is no discussion of the broader impacts of colonialism, and their ‘post-​colonial’ political, economic, and cultural afterlives; in fact, he even dismisses the claims of the Organization of African Unity (OAU) as economic ‘neocolonialism’.48 As the ‘event’49 of ‘decolonization’ took place, so too was international law decolonized. On this basis, Elias was confident that African international lawyers could appropriate the colonial form of international law and make it their own without residual influence.50 In his 1964 essay Chinua Achebe set out his reasoning as to why African writers should accept the ‘inevitability’ of the use of English as a ‘world language’, albeit 43 See Neil Lazarus, ‘Introducing Postcolonial Studies’ in Neil Lazarus (ed), The Cambridge Companion to Postcolonial Literary Studies (CUP 2006). 44 Jennifer Wenzel, ‘Decolonization’ in Imre Szeman, Sarah Blacker and Justin Sully (eds), A Companion to Critical and Cultural Theory (Wiley Blackwell 2017) 3 (hereafter Wenzel, ‘Decolonization’). 45 Elias, Africa and International Law (n 6) 47, 32 (noting: ‘Decolonization has been one of the main preoccupations of the African and the Afro-​Asian Groups at the United Nations . . . [which] have served to quicken the pace of independence and self-​government . . . ’). 46 Neither ‘colonialism’ nor ‘decolonization’ made it into the index. 47 Christopher J Lee (ed), Making a World after Empire:  The Bandung Moment and Its Political Afterlives (Ohio University Press 2010) 8. 48 Recalling the OAU Charter’s pledge ‘to fight against neo-​colonialism in all its forms’, he notes that ‘Member States, paradoxical though it may seem, pledge themselves to eradicate all forms of colonialism from the continent of Africa even if, in achieving this, they should go against the principle of non-​ interferences in the internal affairs of states’. Elias, Africa and International Law (n 6) 128. 49 See Sundhya Pahuja, ‘Decolonization and the Eventness of International Law’ in Fleur Johns, Richard Joyce and Sundhya Pahuja (eds), Events: The Force of International Law (Routledge 2010). 50 In fact, Elias goes further, arguing that before the brief interlude of colonialism international law was in fact universal.

392  Christopher Gevers it one ‘which history has forced down [Africa’s] throat’.51 Achebe’s arguments were largely pragmatic,52 suggesting that while colonialism ‘failed to give them a song, it at least gave them a tongue, for sighing’.53 Notably, Achebe specifically dismissed the argument that the form of English might be bound up in the project of colonialism—​that ‘it came as part of a package deal which included many other items of doubtful value and the positive atrocity of racial arrogance and prejudice which may yet set the world on fire’—​arguing that it would be ‘in rejecting the evil throw[ing] out the good with it’.54 On this basis, Achebe was confident about both African writers’ ability to use English effectively,55 and English’s capacity to be ‘Africanized’ to ‘carry the weight of . . . African experience’ in the process.56 African writers, he argued, should ‘aim to use English which is at once universal and able to carry out [their] peculiar experience’.57 Reading the scholarship of Elias through Achebe’s essay reveals a number of similar assumptions regarding international law. First, like Achebe’s communicative understanding of colonial languages, Elias’s understanding of international law was pragmatic and instrumental; both argued that these ‘colonial forms’ were potentially, if not already, universal. Second, and related to this, neither Achebe nor Elias considered whether their form inherited from colonialism might contain structural biases, and might require ‘decolonizing’ themselves. The supposition that decolonization was an event that had taken place, or would shortly, underlies both Elias and Achebe’s confidence that these colonial forms could be repurposed, and that colonial history was in the past.

2.  From formal ‘decolonization’ to decolonizing form The general agreeability among African writers in the ‘morning of creation day’—​ to paraphrase Achebe58—​would soon fade, and over the two decades that followed 51 Achebe, Creation Day (n 38) 59. He went a step further, arguing that one of the benefits of colonialism was to give Africans common colonial language, while ‘it failed to give them a song, it at least gave them a tongue, for sighing’. ibid 57. 52 Noting: ‘[F]‌or me there is no other choice’, he concluded, ‘I have been given this language and I intend to use it’; that as a result of colonialism ‘the reality of present-​day Africa’ was that ‘the national literature of Nigeria and of many other countries of Africa is, or will be, written in English’ (ibid 57) and that given the continent’s size and diversity, communication would only be possible through common languages, adding that as it is ‘that language is English . . . [t]omorrow it may be something else, although I very much doubt it’ (ibid 58). 53 ibid 57. 54 ibid 58. 55 ibid 59–​60. In any event, it was not desirable for African writers to use English as a ‘native speaker’ (ibid 61). 56 Achebe was confident that he and his fellow writers would be able to convey ‘African experience[s]‌ in a world-​wide language’, through a ‘new English, still in full communion with its ancestral home but altered to suit its new African surroundings’; ibid 61–​62. 57 ibid 61. A strange ‘universality’, in which African will always occupy the position of ‘Other’. 58 See ibid.

Literal ‘Decolonization’: The African Novel  393 writers returned critically to the questions that animated their inaugural gathering in Makarere. This shift among African writers was dramatically captured by the ‘about-​turn’ by Kenyan novelist and playwright Ngugi wa Thiongo (formerly James Ngugi), the heir-​apparent to Achebe. As part of the younger generation of writers present at Makarere in 1962, Ngugi was among the majority who accepted the necessity of writing in English.59 However, in 1979, the same year that Umozurike’s International Law and Colonialism was published, Ngugi gave a speech at the Kenya Press club in which he called for the abandoning of colonial languages by African writers, labelling their continued use ‘neocolonialism’.60 These arguments were elaborated on in Decolonising the Mind (1986), in which Ngugi ‘returned’ to Makarere to ask: ‘What was the route from the Berlin of 1884 via the Makerere of 1962 to what is still the prevailing and dominant logic a hundred years later?’61 The answer, for Ngugi, lay partly in language’s ‘dual character’—​ as ‘both a means of communication and a carrier of culture’62—​and the failure at Makarere to consider the ongoing effects of the imposition of colonial languages as a form of cultural imperialism that led to their acceptance of ‘fatalistic logic of the unassailable position of English in [African] literature’; a logic, he added, ‘embodied deep in imperialism’.63 For this and other reasons, Ngugi argued, the continued use of colonial languages was simply neocolonialism—​there was essentially no ‘difference between a politician who says Africa cannot do without imperialism and the writer who says Africa cannot do without European languages’.64 The colonial form could not, as Achebe would have it, be redeemed through ‘Africanization’, nor their effect downplayed on pragmatic grounds. The title of Ngugi’s Decolonising the Mind usefully records a shift from the ‘literal’ construction of decolonization as an event, towards a thicker account in which there are ‘objects that are to be decolonized’65 (or abandoned), including African literature and, perhaps, international law. This understanding of decolonization as action (rather than event), something that gets done to colonial forms (colonial languages, statutes, curricula, and so on) is what prevails today. The beginnings of this shift can be seen in Umozurike’s International Law and Colonialism. To start, Umozurike explicitly abandons Elias’s ‘literal’ conception of de-​colonization; one which does not conflate decolonization with formal independence.66 Umozurike’s aim, declared at the outset, was to ‘show . . . the proper 59 Ngugi wa Thiong’o, Decolonising the Mind: The Politics of Language in African Literature (Studies in African Literature) (East African Educational Publishers 1986) 20 (hereafter Ngugi, Decolonising the Mind). 60 Ngugi wa Thiong’o, Writers in Politics: Essays (East African Educational Publishers 1981) 65 61 Ngugi, Decolonising the Mind (n 59) 9. 62 ibid 13. 63 ibid 20. 64 ibid 26. 65 Wenzel, ‘Decolonization’ (n 44) 18. 66 He explicitly rejects the binary understanding of independence (adopted by Elias), in which former colony is ‘either dependent . . . or independent’. Umozurike, ‘Colonialism in Africa’ (n 23) 126.

394  Christopher Gevers role of the international community in decolonisation’,67 based on a capacious definition of colonialism (centred primarily on economic, rather than political, exploitation)68 and understanding that ‘neo-​colonialism’ was ongoing (despite formal independence).69 However, Umozurike did not follow Ngugi in calling for the abandoning of the colonial form (ie, international law) altogether; while he acknowledged that ‘[i]‌nternational law in its present form’ has its roots in slavery and colonialism,70 he asserted (at least at the outset) that international law had and could overcome both (and redeem itself in the process). 71 As such, Ngugi’s Decolonising the Mind, and in particular his arguments regarding the relationship between colonial forms and their content, anticipate later critical ‘TWAIL’ scholarship—​of which Umozurike was a precursor—​where scholars like Anghie and Pahuja have specifically addressed international law’s persistent colonial form. A more appropriate Ngugi text through which to read Umozurike’s International Law and Colonialism is his 1977 novel Petals of Blood—​his final novel in English—​as Ngugi claimed that it was ‘in the course of writing the novel that [he] came to be more and more disillusioned with the use of foreign languages’.72 When Petals of Blood was published, many critics suggested that Ngugi’s battle with his colonial form and its limitations was evident in the text itself.73 With echoes of Fanon, Chileshe placed Ngugi’s ‘struggle to come to terms, within the novel form, with his authorial ideology’ squarely in the post-​ colonial context:74 67 ibid x. 68 Noting: ‘The main characteristics of colonialism are the differences in race, colour and power between colonialists and the colonized, and the subjugation of the interests of the latter to those of the former’; ibid ix. 69 Arguing that ‘neo-​colonialism’ is a stage that ‘every new African state invariably passes through’, but that international law can potentially ‘minimize neo-​colonialism and make sovereignty a reality’. ibid 126. 70 ibid 7. 71 ibid 1. 72 Reinhard Sander, Bernth Lindfors and Lynette Cintrón (eds), Ngugi wa Thiong’o Speaks: Interviews with the Kenyan Writer (James Currey Publishers 2006) 87–​88. Notably, it was not only the English language that was implicated, but the novel itself. Gikandi argues that for Ngugi at the time the novel form itself was ‘bound up with the culture of colonialism’ (ibid 143), and harboured ‘serious doubts about both the possibility of change and the ability of the novel to represent spaces of recuperation and resistance’ (ibid 129). Simon Gikandi, Ngugi wa Thiong’o (CUP 2010). 73 For a summary of the critical responses see Joseph McLaren, ‘Ideology and Form: the Critical Reception of Petals of Blood’ in Peter Nazareth (ed), Critical Essays on Ngugi wa Thiong’O (Twayne Publishers 2000). See also John Updike, ‘Books:  Mixed Reports from the Interior’ (2 July 1079) New  Yorker 89–​94; Charles R Larson, ‘Anglophone Writing from Africa and Asia’ (1978) 52 World Literature Today 245–​47; Homi K Bhabha, ‘ “African Praxis” Review of Petals of Blood’ (12 August 1977) Times Literary Supplement 989; Bernth Lindfors, Popular Literature in Africa (Africa World Press 1991), 81; and Peter Nazareth, ‘The Second Homecoming: Multiple Ngugis in Petals of Blood’ in Georg M Gugelberger, Marxism and African Literature (African World Press 1986) (hereafter Nazareth ‘Homecoming’). 74 John Chileshe, ‘Petals of Blood:  Ideology and Imaginative Expression’ (1980) 15 Journal of Commonwealth Literature 133, 134.

Literal ‘Decolonization’: The African Novel  395 [O]‌ften the contradictions in a work of art have to do with its historical determinants. This the African creative artist who conceived of himself as being engaged in a nationalistic struggle against imperialist hegemony may well find that his struggle is being waged from within imperialist hegemonic structures. Not only might the formulation of the struggle be for within the imperialist problematic . . . , but even the weapons used may be largely inherited from the culture at which the struggle is directed.

In his 1959 essay Fanon too had warned of the dangers of using a ‘borrowed aesthetic’, of using ‘techniques and a language borrowed from the occupier’;75 his own battle with, or perhaps against, form found its way into The Wretched of the Earth where, Wenzel notes, ‘the poetry of utopian possibility . . . jostles with the prose of postcolonial disillusion’.76 Through Petals of Blood, International Law and Colonialism can also be read as a struggle against imperialism (or ‘neo-​colonialism’) being waged ‘from within imperialist hegemonic structures’, using a weapon (ie, international law) ‘inherited from the culture at which the struggle is directed’, and one that takes place in part at the level of the text. Reading International Law and Colonialism in this way reveals the ambivalences, if not contradictions, that lie surface-​deep throughout. It opens with a paradox—​namely that ‘[i]‌nternational law was used to facilitate . . . both [the slave trade and colonialism]’ but ‘was also . . . used to eradicate the first and, presently, the second’77—​and then proceeds to undermine international law’s claims and ability to do both of the latter. The slave trade, we are told, was ended as a result of economic factors, with ‘[i]nternational law . . . following the trend of European interests’78 (and, in any event, is not over).79 Moreover, its belated abolition in the Treaty of Berlin then laid the foundation for colonization: ‘[t]he legality of the trade was, as it were, substituted by the legitimacy of, and encouragement for, [colonialism]’. 80 Finally, the eradication of both lies, it seems, not international law as it stands but in a combination of Hegelian dialectics and the ‘use of force’ by African states (including nuclear force).81 Nevertheless, he concludes ‘on an optimistic note’ that ‘[i]nternational law, faithfully applied, holds out hope for a world, ruled by law, in which the rights of all peoples will be protected’.82 Such contradictions are present throughout the text.83 75 Fanon, The Wretched of the Earth (n 1) 159–​60. 76 Wenzel, ‘Decolonization’ (n 44) 18. 77 Umozurike, ‘Colonialism in Africa’ (n 23) 1. 78 ibid, 139. 79 ibid  15–​16. 80 ibid 139. 81 ibid 143–​44. 82 ibid 143–​44. 83 On more than one occasion Umozurike cites a norm of international law (such as the succession of treaty obligations), and then makes a radical counter-​claim (‘[s]‌ince neo-​colonialism is a detraction

396  Christopher Gevers Ngugi’s Petals of Blood offers a reading of International Law and Colonialism in which these and other contradictions, unevenness, and lapses in genre in are symptomatic of Umozurike’s battle with the form of international law itself. While this reading is somewhat unsatisfying, it is to be preferred to both those that would simply dismiss these features of International Law and Colonialism as faults, as well as sympathetic readings that overlook them.84 Reading these African international legal scholars alongside their literary interlocutors draws attention not only to the relationships among and between these texts, but also to the role that context—​both intellectual and political—​played in their construction.

IV.  ‘[A]‌fundamentally different international situation’: context, ‘decolonization’ and African international legal scholarship In 1972 South African writer and critic Es’kia Mphahlele—​who was present alongside Achebe and Ngugi at Makarere—​wrote of the ‘new mood in African Literature’, as writers began to ‘reckon with [their] present’; a present he described as:85 Independence, opposition politics, coups d’état, military government, one-​party government; acres of poverty sprinkled with a few castles of wealth and a few blinking neon lights that say Elite Club; the shrinking boundaries of defensive nationalism, the dream that the pan-​African center will hold; the insolence of power, the “benevolence” of power, the abdication of power, power vegetating: whether or not neo-​colonialism frustrates possible solutions, our continent is the black man’s burden this time around.

It was also the year the Elias’s Africa and International Law was published; however, much of it was written in a quite different ‘present’, consisting largely of works published in the 1960s.86 In contrast, Umozurike’s International Law and Colonialism was published in 1979, and drew on works he published during the 1970s. These changing ‘presents’—​the political contexts of the 1960s and 1970s—​ necessarily impacted the work of Elias and Umozurike generally, and their

from sovereignty, a state has a right to prevent or reverse it’), without trying to reconcile the two; ibid 130–​31. 84 See Susan Marks (ed), International Law of the Left: Re-​Examining Marxist Legacies (CUP 2008) 124–​25 (suggesting that Umozurike ‘sharply counterposes . . . “neocolonialism” from international law itself ’). 85 Ezekiel Mphahlele, ‘The New Mood in Africa Literature’ (1972) 19 Africa Today 54. 86 See Preface, Elias, Africa and International Law (n 6).

Literal ‘Decolonization’: The African Novel  397 constructions of ‘decolonization’ in particular. As Lazurus notes in relation to the term ‘post-​colonial’, which underwent a similar transformation—​from a simple ‘periodizing term’ (ie, after colonialism) to the complex, political, and ideological concept it signifies today—​‘ “postcolonial criticism” could not possibly have existed before the 1980s, not because it would have lacked an adequate audience then, but because it would have made no sense at all in the historico-​ideological context of the 1970s’.87 (Notably, the ‘post-​colonial malaise’ set in among African writers slightly earlier than it did some of their interlocutors in Western academies). Elias and Umozurike wrote in different intellectual contexts as well, under different ‘epistemological conditions’ that made their scholarship ‘both thinkable and feasible;88 returning to Fanon, with the intellectual weapons they possessed at the time. For example, Elias wrote Africa and International Law two years prior to the publication of Diop’s landmark The African Origins of Civilization: Myth or Reality?89 In contrast, the influence of Walter Rodney’s How Europe Underdeveloped Africa (1972) on Umozurike’s scholarship is hard to miss, and is acknowledged in the Preface (although Umozurike cites an earlier unpublished version of Rodney’s thesis in International Law and Colonialism).90 In fact, all of Rodney’s How Europe Underdeveloped Africa and much of Umozurike’s ‘International Law and Colonialism in Africa’ was written while they were both at the University of Dar-​es-​Salaam.91 Beyond individual texts, changes in the broader intellectual contexts between the 1960s and 1970s, in both international law and African scholarship, inflect the work of Elias and Umozurike. The 1970s saw the emergence of critical scholarship from the ‘first generation’ of TWAIL scholars, some of which appears in Umozurike’s International Law and Colonialism. However, the changes in the broader African intellectual context during this period—​under the influence of scholars like Fanon and Rodney—​are perhaps the most significant difference between Elias’ and Umozurike’s texts. This difference, and its origins in broader intellectual shifts, is most obvious in their respective histories of international law. 87 Lazarus (n 43) 7. 88 Valentin-​Yves Mudimbe, The Invention of Africa: Gnosis, Philosophy, and the Order of Knowledge (Indiana University Press 1988) 195. 89 Which Gathii overlooks when he criticizes Elias’s failure to cite the latter. Gathii, ‘International Law and Eurocentricity’ (n 2) (noting Elias’s failure to cite the work of Cheikh Anta Diop’s text in support of his claims regarding ‘the existence of ancient African Kingdoms or political units equivalent to, if not superior to . . . those found in Western Europe’). 90 Umozurike, ‘Colonialism in Africa’ (n 23) 3. In addition, Rodney’s influence can also be seen in Umozurike’s reading; Walter Rodney’s ‘Brief Guides to Reading’ in How Europe Underdeveloped Africa (Bogle–​L’Ouverture Publications 1972) include the works of WEB Du Bois, George Padmore, Eric Williams, Basil Davidson, and Phillip Curtin, which feature prominently in Umozurike’s ‘Colonialism in Africa’ (n 23). 91 See Walter Rodney, How Europe Underdeveloped Africa (Pambazuka Press 2012), vii (hereafter Rodney, How Europe Underdeveloped Africa) (noting:  ‘the text as a whole has been written within Tanzania’); and Umozurike, ‘Colonialism in Africa’ (n 23) x (noting: ‘[w]‌riting was virtually completed while I was on secondment . . . to the University of Dar-​es-​Salaam’).

398  Christopher Gevers Seen from today, Elias’s ‘contributionist’ history appears amateurish and polemical; yet, it resonated strongly with the work of both his historian and novelist contemporaries. At the time, during what Curtin calls the ‘first stage of decolonizing African history’, African historians ‘were mainly concerned to beat back the assertion that Africa had no history . . . [by pointing] to kingdoms and large empires that did indeed have a political history that read like early aspects of European history’.92 Similarly, shortly after his 1964 essay on Makarere, Achebe declared that he ‘would be quite satisfied if [his] novels . . . did no more than teach his readers that their past—​with all its imperfections—​was not one long night of savagery from which the first Europeans acting on God’s behalf delivered them’.93 For Achebe, the task of the African novelist was to write ‘enabling stories’ that countered the ‘tyrannical discourse of colonialism’94 reflected in novels such as Joseph Conrad’s The Heart of Darkness (1899) and Joyce Cary’s Mister Johnson (1939), where Africans were depicted as lacking both subjectivity (‘an Africa without Africans’) and history (Hegel’s ‘land of childhood . . . lying beyond the day of self-​conscious history’95). For Achebe, this required decentring colonialism in favour of telling the story of a pre-​colonial past, a task he undertakes with unrivalled genius in Things Fall Apart (1959). Just as Achebe wrote Things Fall Apart in order to restore these elements absent in colonial discourse—​subjectivity and history—​‘to the African character and his or her community’, so too might Elias be read as restoring sovereignty and pre-​ colonial history to Africa—​both of which were missing in the standard accounts of international legal history. Even if, as in Things Fall Apart, such ‘gentle re-​creations of the past’96 meant glossing over ‘the darker, more violent, and tragic aspects of the African experience’.97 Similarly, just as failing to read Achebe’s Things Fall Apart (and the texts of early African historians) contextually—​as part of the struggle by African intellectuals in the 1960s to ‘to contest, and wrestle with, the silent shadows and forms of colonialist discourse’—​‘misses the revolutionary nature of Achebe’s text’;98 so too does reading Elias’ history of international law acontextually do it a disservice. By the 1970s the intellectual context had changed considerably, in no small measure due to the changing political context, as reflected in the work of historians 92 PD Curtin, ‘Recent Trends in African Historiography and their Contribution to History in General’ in Joseph Ki-​Zerbo (ed) General History of Africa I:  Methodology and African Prehistory (UNESCO 1989) 64. See further JD Phage, ‘The Development of African Historiography’ in ibid 58–​59; and Bethwell A Ogot, ‘Three Decades of Historical Studies in East Africa, 1949–​1977’ (1978) 6 Kenya Historical Review 29–​33 (hereafter Ogot, ‘Three Decades’). 93 Achebe, Creation Day (n 38) 45. 94 Simon Gikandi, Reading Chinua Achebe: Language & Ideology in Fiction (East African Publishers 1991) (hereafter Gikandi, Reading Chinua Achebe). 95 Georg Wilhelm Friedrich Hegel, The Philosophy of History (James Sibree tr, OUP 1956). 96 Chinua Achebe, There Was a Country: A Memoir (Viking Penguin 2012) 115. 97 Ogot, ‘Three Decades’ (n 92)30. 98 Gikandi, Reading Chinua Achebe (n 94) 26.

Literal ‘Decolonization’: The African Novel  399 and novelists once more. For historians, the ‘honeymoon period’ that ‘dwelt rather nostalgically upon what was appealing or virtuous in the African past’ was over.99 For Ogot, writing specifically about East African historiography, the year of significance was again 1972. What followed was a turn towards ‘economic history’ (underpinned by Marxism) in order to address ‘the present economic and political malaise in Africa’;100 a ‘usable history’, in Ranger’s words (notably, Ogot cites Walter Rodney’s work as emblematic of this turn). For their part, novelists turned their attention to the present, and ‘usable histories’ that addressed its problems. In 1972 Ngugi, drawing on Fanon,101 warned his fellow writers against ‘becoming too fascinated by the yesterday of his people and forgetting the present’,102 a critique echoed by his leading character in Petals of Blood, Karega (an avatar for Ngugi himself). In Petals of Blood Karega criticizes his professors for taking him ‘to pre-​colonial times . . . [to] wander purposelessly from Egypt, or Ethiopia, or Sudan, only to be checked in his pastoral wanderings by the arrival of Europeans’.103 He demands a history that uses the past as ‘a living lesson to the present’, warning that ‘we must study it critically, without illusions, and see what lessons we can draw from it in today’s battlefield of the future and the present’.104 The influence of this context can also be seen in Umozurike’s history of international law, which forgoes Elias’s (and Things Falls Apart’s) extensive discussion of pre-​colonial Africa to focus on the depredations of slavery and colonialism, as well as the resistance to it (through Pan-​Africanism, for example). Moreover, like Ngugi’s Petals and Blood, Umozurike history of international law is directed at the ‘battlefield of the future and the present’, with consistent parallels being drawn between the racial and imperial aspects of ‘colonial international law’ and apartheid and neo-​colonialism. In light of these similarities, to read Elias and Umozurike’s histories of international law, and their scholarship more generally, wholly outside of these intellectual contexts is to misread them. Equally so, contextualizing requires nuance. It is not simply a chronological mapping of influential works. For example, while Diop’s The African Origins of Civilization: Myth or Reality? (1974) was published two years after Rodney’s How Europe Underdeveloped Africa (1972), the former belongs to the first ‘Afro-​centric’ stage of African historiography; being made up of works published (in French) in the 1960s (much as Elias’s text was). It also requires paying 99 Ogot, ‘Three Decades’ (n 92) 30. 100 ibid 30. 101 In his essay ‘On National Culture’ Fanon wrote that ‘[w]‌hen the colonized intellectual writing for his people uses the past he must do so with the intention of opening up the future, of spurring them into action and fostering hope’; Fanon, The Wretched of the Earth (n 1) 167. 102 Nazareth, Homecoming (n 73) 44. See further Carol M Sicherman, ‘Ngugi wa Thiong’o and the Writing of Kenyan History’ (1989) 20 Research in African Literatures, 349–​50. 103 Ngugi wa Thiong’o, Petals of Blood (William Heinemann Ltd 1977) 199 (hereafter Ngugi, Petals of Blood). 104 ibid 323.

400  Christopher Gevers attention to place. It is difficult to overemphasize the influence on Umozurike of the intellectual context of Dar-​es-​Salaam during his time there; where he not only came under the influence of Walter Rodney, but he also was much more likely to have been exposed to Fanon than in his native Nigeria105—​more so at the Law School where Fanon was compulsory reading.106 It is these broader shifts in the intellectual terrain, as much as the particular ‘presents’, that account to some degree for the strength and weakness of the scholarship of Elias and Umozurike. Fanon, who as much as anyone was responsible for these shifts,107 had already anticipated them in his 1959 essay on ‘National Culture’, where he set out the various ‘phases of development in the works of colonized writers’. First, the ‘colonized intellectual proves he has assimilated the colonizer’s culture’ (the ‘phase of full assimilation’).108 Second, colonized intellectuals ‘place themselves in the context of history’,109 in search of ‘some magnificent and shining era’ that will show that Africa’s ‘past was not branded with shame, but dignity, glory, and sobriety’.110 Third, the colonized intellectual ‘turns into a galvanizer of the people’ and ‘[c]‌ombat literature, revolutionary literature, national literature emerges’.111 However, even this ‘combat stage’ is bound to fail, according to Fanon, both because the writer must continue to rely on ‘borrowed aesthetic’ and remains ‘out of step’ with the people, and because ‘the existence of a nation is not proved by culture, but in the people’s struggle against the forces of occupation’.112 For Fanon, the proper role of the ‘colonized intellectual’ was to ‘take part in the action and commit himself body and soul to the national struggle’, as ‘[o]‌ne cannot expect African culture to advance unless on contributes realistically to the creation of the conditions necessary for this culture, i.e., the liberation of the continent’.113 By the 1970s both Achebe and Ngugi had taken up Fanon’s challenges to the ‘colonized writer’ to varying degrees: Achebe took up the Biafran ‘peoples’ struggle for self-​determination,114 while Ngugi’s ‘combat literature’ aimed at the ‘neo-​colonial’ 105 See Alamin Mazrui, ‘Fanon in the East African Experience:  Between English and Swahili Translations’ in Kathryn Batchelor and Sue-​Ann Harding (eds), Translating Frantz Fanon Across Continents and Languages (Routledge 2017) (hereafter Mazuri, ‘Fanon’), noting that by the mid-​1970s ‘Fanon’s ideas were already circulating widely in East Africa’. In contrast, little is known about the ‘West African Anglophone reception of Fanon; see Kathryn Batchelor, ‘The Translation of Les Damnes de la terre into English: Exploring Irish Connections’ in Kathryn Batchelor and Sue-​Ann Harding (eds), Translating Frantz Fanon Across Continents and Languages (Routledge 2017). 106 Mazrui, ‘Fanon’ (n 105). 107 Rodney notes: ‘Fanon does not have any equal in analysing the last stages of African colonialism and the advent of neo-​colonialism’; see Rodney, How Europe Underdeveloped Africa (n 91). 108 Fanon, The Wretched of the Earth (n 1) 158–​59. 109 ibid 147. 110 ibid 148. 111 ibid 159. 112 Fanon, The Wretched of the Earth (n 1) 160. 113 ibid 167, 70. 114 He wrote extensively about this period in his late memoir Chinua Achebe, There was a Country: A Personal History of Biafra (Penguin Books 2012).

Literal ‘Decolonization’: The African Novel  401 Kenyan state resulted in his detention and exile.115 In fact, despite their generational differences, Ngugi and Achebe ended up in similar places. Achebe came to question the literal understanding of ‘decolonisation as independence’ and, although he did not give up on the colonial form altogether, his experiences in Biafra shook his faith in it (while he had been prolific before the war, he didn’t write another novel for almost two decades).116 The interests of international lawyers faired quite differently in during the same period. Unlike Achebe, Elias remained seemingly impervious to the changing political and intellectual context in the decades following independence, while Umozurike’s critical disposition appeared to weaken over time. This chapter concludes by considering this dissimilitude between African international lawyers and writers in the ‘late’ decolonization period, which is equally remarkable and brings to the fore the limits of ‘context’ and the influence of biography and, perhaps, discipline.

V. Concluding remarks In 1968 Chinua Achebe actually returned to Makarere. At the time, he was an envoy for the newly declared Republic of Biafra, and the ongoing conflict in Nigeria formed the substance of his address, titled ‘The African Writer and the Biafran Cause’. It began with a history of Africa that was quite different to the ‘gentle re-​creations of the past’ that typified his earlier works. 117 Rather, just like Umozurike’s International Law and Colonialism, Achebe’s history centred on the slave trade and colonialism, to which he added a third: decolonization. According to Achebe, Biafra had demonstrated was that ‘decolonization’ was a farce: ‘independence . . . was totally without content’ and ‘[t]‌he old white master was still in charge’.118 As such, Achebe declared that ‘Biafra stands for true independence in Africa, for an end to the 400 years of shame and humiliation which we have suffered in our association with Europe’.119 Moreover, taking up Fanon’s demands of ‘colonized intellectuals’, Achebe argued that the role of African writers was to be part of ‘the revolutionary struggle of their people for justice and true independence’.120 The 115 See Ngugi wa Thiong’o, Detained: A Writer’s Prison Diary (William Heinemann Ltd 1981). 116 When he did return to the novel in 1987 (Chinua Achebe, Anthills of the Savannah (William Heinemann Ltd 1987), he did so in the register of Ngugi, ‘[turning] his attention to the challenge of envisioning a radically new society out of the elements of a useable African past’. Leonard A Podis and Yakubu Saaka, ‘Anthills of the Savannah and Petals of Blood: The Creation of a Usable Past’ (1991) 22 African Aesthetics in Nigeria and the Diaspora 105. 117 Reprinted in Achebe, Creation Day (n 38) 78–​84. After the success of Chinua Achebe, Things Fall Apart (William Heinemann Ltd 1958), No Longer at Ease (Heinemann Educational Publishers Ltd 1960), and Arrow of God (William Heinemann Ltd 1964), the post-​colonial anxiety had already begun to set in for Achebe in A Man of the People (East African Educational Publishers Ltd 1966). 118 Achebe, Creation Day (n 38) 82. 119 ibid 84. 120 ibid 84.

402  Christopher Gevers following year he invoked Fanon’s critique explicitly, noting that ‘while the African intellectual was busy displaying the past culture of Africa, the troubled peoples of Africa were already creating new revolutionary cultures which took into account their present conditions’, and as a result African writers had been ‘left behind’.121 The new task of the African writer was therefore ‘to hurry and catch up with [the peoples]—​to borrow the beautiful expression of Fanon—​in that zone of occult instability where the people dwell’. 122 The Biafran War did not have a corresponding effect on Elias’s scholarship. In March 1970 he delivered a speech to the Nigerian Society of International Law—​ later published in the Nigerian Law Journal—​ addressing the significant international legal aspects what he called the ‘recent Nigerian Civil War’.123 Unsurprisingly, given his position Nigeria’s Attorney-​General during the war, Elias exonerated Nigeria of all allegations of violating international law. However, it was the issues he selected for discussion that dramatically demonstrated the distance between Elias and the emerging post-​colonial critiques of Achebe (and the ‘neo-​colonial’ critiques of Umozurike); he was concerned with, among other issues, the effect of the conflict on the proper payment of oil royalties and the legality of ‘mineral and other’ concessions made by the ‘so-​called Republic of Biafra’ to foreign companies.124 There was to be no ‘post-​colonial awakening’ for Elias. Ultimately, and not incidentally, Biafra turned out to also be significant professionally for Elias. His path to the International Court of Justice—​the head of the ‘Club of International Lawyers’ from which he was excluded from in 1963—​was cleared when his compatriot Louis Mbanefo sided with the fledgling Biafran Republic. In fact, in a symbolic act worthy of the poetic order, at the end of the conflict Nigeria’s first ICJ judge was part of the delegation that surrendered to, among others, its most illustrious.125 Umozurike also wrote about the Biafra at the time, and his treatment was somewhat more even-​handed than Elias’s, although he did not view it in the same ‘neo-​ colonial’ terms as Achebe.126 So while the distance between Elias and Achebe on 121 Bernth Lindfors, Palaver: Interviews with Five African Writers (University of Texas at Austin 1972) (hereafter Lindfors, Palaver), 5. Fanon had written in 1959: ‘It is not enough to reunite with the people in a past where they no longer exist. We must rather reunite with them in their recent counter move which will suddenly call everything into question . . . ’. Fanon, The Wretched of the Earth (n 1) 163. 122 Lindfors, Palaver (n 121) 6. 123 Taslim O Elias, ‘The Nigerian Crisis in International Law’ (1971) 5 Nigerian Law Journal 1–​18. 124 Elias ended by dismissing ‘propaganda about genocide’, and noting that ‘[n]‌ever . . . has there been any precedent for the generous permission granted to humanitarian and not so humanitarian organisations from all parts of the world to fly in “relief ” (both genuine and fake) to rebel-​held areas . . . ’; ibid  16–​17. 125 Mbanefo served as Judge ad hoc in South West Africa (Ethiopia & Liberia v South Africa) 1960–​1966. 126 Umozurike included a discussion of the conflict in his book Self-​Determination in International Law (n 25) 260–​68 (concluding, at 267, that Biafrans were entitled to self-​determination at the time of their declaration but, having lost the war, that ‘they must reconcile themselves to an exercise of self-​determination’ within Nigeria (ie, through the full enjoyment of human rights). See also Umo O Umozurike, ‘Geneva Conventions and Africa’ (1971) 8 East African Journal 284–​85; and Umo O

Literal ‘Decolonization’: The African Novel  403 Biafra might be explained with respect to their individual politics, what is more difficult to explain is the conservative shift in Umozurike’s scholarship from the 1980s onwards, such that it ended up being indistinguishable from Elias. In his final book, Introduction to International Law (1993) Umozurike recants his critical approach in International Law and Colonialism altogether.127 The history of international law he tells makes no mention of the slave trade and spends less than a paragraph on colonialism—​the centrepieces of his previous critical history of international law.128 Rather, like Elias’s ‘contributionist’ history of twenty years prior, Umozurike sets out the how pre-​colonial African kingdoms and empires ‘contributed their quota in the development of international intercourse’, as well as the exchange of ambassadors with European powers.129 The first text on his ‘Suggestions for Further Reading’ list is, in fact, Elias’ Africa and International Law.130 Reading the work of Elias and Umozurike through their literary counterparts, then, is a somewhat frustrating exercise, raising more questions than answers. While it opens up these texts to more complex readings, and highlights the influence of political and intellectual contexts, the ultimate divergence between them undermines the promise of resolution: substituting a reading that it too blunt and acontextual for one that seems too granular and context-​dependent. And yet, in this refusal of closure there is potential: just as there is ‘a lot to be gained in understanding decolonization . . . as an unfinished project’,131 so too is there much to be gained from reading African international legal scholarship’s relationship with decolonization as ‘unfinished’.

Umozurike, ‘The Application of International Humanitarian Law to Civil Conflicts’ (1992) 4 African Journal of International and Comparative Law 497. 127 Far from the Marxist bent of Umozurike, ‘Colonialism in Africa’ (n 23) international law is now about facilitating ‘[c]‌ommerce and the exchange of goods and services’ which is ‘to the mutual benefit of all states’; ibid 7. 128 Umozurike, ‘Colonialism in Africa’ (n 23) 1. The book also draws on other articles, including one published in 1971 on the African slave trade. (‘The African Slave Trade and the Attitudes of International Law Towards It’). 129 Umo O Umozurike, Introduction to International Law (Spectrum Law Publishing 1993) 7–​8. His list includes the Kingdom of Ghana (300–​1087 AD), Mali (1235–​1410 AD), Timbuctoo, the ‘Empires of Songhai and Benin’, the Buganda, the Shona, Zulu, Swazi, Ethiopia, and others. 130 It is followed by Elias’ New Horizons in International Law (n 10). Umozurike’s own ‘Colonialism in Africa’ (n 23) is number ten on the list (of seventeen titles). Needless to say, Rodney and Fanon do not make the list. 131 Wenzel, ‘Decolonization’ (n 44) 2.

18

The Soviets and the Right to  Self-​Determination of the Colonized Contradictions of Soviet Diplomacy and Foreign Policy in the Era of Decolonization Bill Bowring

I.  Introduction This chapter suggests that the right of peoples to self-​determination is the ‘revolutionary kernel’1 of post-​ Second World War international law, which both reflected and energized the struggles of national liberation movements for independence from colonial empires. From reference to a ‘principle’ in the Preamble to the United Nations (UN) Charter, a legal right of peoples to self-​determination became common Article 1 to the two UN Covenants on Human Rights in 1966, and an unassailable legal right when the Covenants came into force in 1976. The Union of Soviet Socialist Republics (USSR) played a leading role in bringing about this extraordinary success, in the teeth of fierce resistance from the great colonial powers. In particular, the USSR led the newly independent states, and via a sustained diplomatic effort, contributed materially to the national liberation movements of the time. The role of the USSR could of course be seen as sheer hypocrisy, given that the USSR, together with the territories occupied by it as a result of the Yalta and Potsdam agreements, constituted the greatest extent of Russian imperial power. This was at the very least a stark contradiction.2 Why did the USSR advocate a programme which appeared to be so much against its own interests? The answer is to be found in the period from 1900 to the present, although the main focus is on the twenty-​year period from 1955 to 1975. The chapter explores some recent scholarly texts that focus on self-​determination, 1 For an earlier account, see Bill Bowring, Degradation of the International Legal Order:  The Rehabilitation of Law and the Possibility of Politics (Routledge-​Cavendish 2008), ch 1. 2 Bill Bowring, ‘Positivism Versus Self-​Determination: The Contradictions of Soviet International Law’ in Susan R Marks (ed), International Law on the Left: Re-​Examining Marxist Legacies (CUP 2008) 133–​68. Bill Bowring, The Soviets and the Right to Self-Determination of the Colonized In: The Battle for International Law: South-North Perspectives on the Decolonization Era. Edited by: Jochen von Bernstorff and Philipp Dann, Oxford University Press (2019). © The Several Contributors. DOI: 10.1093/oso/9780198849636.003.0019

Contradictions of Soviet Diplomacy  405 and argues that, for whatever reason, these fail or refuse to recognize the role of the USSR after the Second World War. To begin to answer the question why Soviet diplomats adhered so doggedly to this programme, this chapter traces the policy of self-​determination back to its originator, Vladimir Lenin (Ulyanov) in the period immediately before and after the First World War. Third, it examines the travaux préparatoires to the Covenants in the period between the Second World War and 1955, starting with the work on the Universal Declaration on Human Rights (UDHR). The senior Soviet diplomat Platon Dmitrievich Morozov (1906–​1986), who became a judge of the International Court of Justice (ICJ) from 1970 to 1985, was the leading Soviet representative in the drafting meetings. Next, it traces the crucial events of 1960, with the Colonial Declaration of the UN General Assembly3 (UNGA) against the background of revolutionary struggle in Algeria and elsewhere. Then it shows how, with Soviet encouragement, the right to self-​determination became a norm not only of treaty law as in the Covenants, but of customary international law. The focus throughout is on the process—​the struggles—​whereby the right of peoples to self-​determination became enshrined in the two UN Covenants on Human Rights, as Article 1 of each of the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR).

II.  Depoliticizing the past?—​some recent texts Interest in the topic has not abated. In 2015 Cambridge University Press published an English translation of Jörg Fisch’s 2010 The Right of Self-​Determination of Peoples: The Domestication of an Illusion.4 In 2016 it also published The Theory of Self-​Determination, a collection edited by Fernando R Tesón.5 Both of these significant texts seek to avoid any recognition of the implication of the (contradictory) role played by the USSR in decolonization. Fisch, in any event, starts by recognizing the role played by Lenin. He writes that ‘ . . . Lenin’s position on the right to self-​determination was already clear in 1914, while Wilson probably did not even know of the expression “right of self-​ determination of peoples” in 1914’.6 Fisch devotes his ­chapter 12 to ‘The Cold War and the Second Decolonization, 1945–​1989’.7 He suggests that because the Second 3 Declaration on the Granting of Independence to Colonial Countries and Peoples, UNGA Res 1514 (XV) (14 December 1960). 4 Jörg Fisch, The Right of Self-​Determination of Peoples: The Domestication of an Illusion (Anita Mage tr, CUP 2015). 5 Fernando R Tesón (ed), The Theory of Self-​Determination (CUP 2016). 6 Fisch (n 4) 121. 7 ibid 190–​217.

406  Bill Bowring World War was a ‘traditional power struggle’, the right to self-​determination might have disappeared ‘definitively’.8 However, the victorious powers were unable to keep their colonies in check, and in the summer of 1945, when the USSR introduced the ‘principle of self-​determination’ into the UN Charter,9 ‘[t]‌his secured the Soviet Union the approval of the colonial regions’.10 Fisch adds that the ‘Soviet bloc and the Third World took over the substance of the concept that had been created in the Americas between 1776 and 1865, but had not yet been designated as self-​determination’. Fisch also notes that during the drafting of the UDHR in 1948, the USSR did propose the inclusion of the right of self-​determination, but this was rejected.11 The UN decided to draft both a non-​binding Declaration and a legally binding Covenant on human rights, and in 1952 it was decided to have two Covenants. Article 1, on the right of peoples to self-​determination, was already formulated by the end of 1955, and in an endnote12 he gives the vote on 29 November 1955 in the UNGA Third Committee: thirty-​three in favour, twelve against,13 and thirteen abstentions.14 Fisch also recognizes that UNGA Res 1514 (XV) (14 December 1960) was a ‘decisive victory’.15 As he points out, not one single state dared to oppose it. Eighty-​nine voted for, and only nine abstained:  Australia, Belgium, the Dominican Republic, France, the United Kingdom (UK), Portugal, Spain, South Africa, and the United States (US). According to Fisch, after 1945 the third world, supported by the USSR and its allies, succeeded in ‘monopolising the discourse of self-​determination and the right to self-​determination for itself ’.16 He concludes that ‘Lenin’s venture in 1917–​ 18 was a resounding success’, and that ‘Wilson became a prophet of the right to self-​determination, but not of his own concept of it, but rather Lenin’s’.17 Lenin, it appears, is seen as a thoroughly malign influence. But Fisch’s argument, and the reason for the appearance of the word ‘illusion’ in his title, is that the ‘central difficulty’ in the ‘formula of self-​determination’ is that it ‘contains a promise that cannot be redeemed . . . The idea that such a right could be realised to its full extent is illusory . . . ’. It seems an odd way to dismiss, in effect, the bloody and tempestuous history of decolonization.

8 ibid 190. 9 UN Charter, art 1, para 2, and art 55. 10 Fisch (n 4) 191. 11 ibid 195. 12 ibid 268, fn 8. 13 France, Luxembourg, The Netherlands, New Zealand, Norway, Sweden, Turkey, the UK, the USA, Australia, Belgium, Canada. See Antonio Cassese, Self-​Determination of Peoples: A Legal Reappraisal (CUP 1995) 50. 14 UN Doc A/​C.3/​SR.676, para 27. 15 Fisch (n 4) 197. 16 ibid 218. 17 ibid 240.

Contradictions of Soviet Diplomacy  407 The collection edited by Tesón, on the other hand, has very little to say about the period of interest here, save in Patrick Macklem’s chapter ‘Self-​Determination in Three Movements’18. Unlike Fisch, Macklem seems determined to ensure that the USSR should entirely disappear from the history of Article 1 of the ICCPR and ICESCR. Thus, he starts by informing his reader that it was Arab, Asian, and Latin American delegations which began to press the UN in the early 1950s to recognize a human right of self-​determination, to the alarm of ‘European officials’, who saw this as a pretext for attacks on colonial powers.19 Lenin and the USSR make no appearance in Macklem’s account of the emergence of the concept, as a discourse justifying the liberation of Eastern European nations.20 He asserts that ‘After a decade of efforts by the African, Arab, Asian and Latin American delegations to attempt to persuade numerous UN bodies to recognise self-​determination as a human right . . . ’, the UNGA ‘enacted’ Res 1514 (XV).21 And further: ‘The elevation of self-​determination to the status of a human right was a spectacular political achievement by the Arab, Asian and Latin American delegations’ at the UN. Macklem refers several times to an even more politicized work—​Roland Burke’s 2010 ‘Decolonization and the Evolution of International Human Rights’.22 Burke’s message is that the campaign for the recognition of self-​determination was the initiative of the Asian-​African conference held in Bandung, Indonesia, in 1955, with which his book starts.23 He adds that ‘a right to self-​determination formed one of the central articles in the Final Communiqué’.24 The role of the USSR and its diplomacy (and material assistance to national liberation movements) are nowhere to be found. Another more recent work in this genre is Steven Jensen’s The Making of International Human Rights: The 1960s, Decolonization, and the Reconstruction of Global Values.25 According to Jensen, also referring to Burke, it was Bandung in 1955 that was responsible for the presence of the right to self-​determination in the Covenants.26 Jensen does mention the Soviet Union as wanting to ‘gain political advantage’ by presenting itself as the leading proponent of decolonization at the UN, and adds: ‘The Soviets hailed themselves as champions of anti-​colonialism.’27 18 Patrick Macklem, ‘Self-​Determination in Three Movements’ in Fernando R Tesón (ed), The Theory of Self-​Determination (CUP 2016) 94–​119. 19 ibid 94. 20 ibid 97. 21 ibid 99. 22 Roland Burke, Decolonization and the Evolution of International Human Rights (University of Pennsylvania Press 2010). 23 ibid 13. 24 ibid 35. 25 Steven LB Jensen, The Making of International Human Rights: The 1960s Decolonization and the Reconstruction of Global Values (CUP 2016). 26 ibid 43. 27 ibid 53.

408  Bill Bowring From this starting point Jensen is able to assert that the USSR faced strong opposition from the Afro-​Asian group and ‘had to agree’ despite defeat to Res 1514 (XV).28 In Sundhya Pahuja’s 2011 Decolonising International Law:  Development, Economic Growth and the Politics of Universality,29 self-​determination makes two brief appearances: on pages 57–​59, where it is presented as part of the ‘logic of nationalism’30, and on pages 119–​20, where it is referred to in the context of the Permanent Sovereignty over Natural Resources (PSNR). There is no mention of the 1960 Decolonization Resolution or the 1966 Covenants, much less the roles of Lenin in promoting the concept or the USSR in relentlessly pursuing its realization. It is worth comparing these recent additions to the literature on decolonization with Antonio Cassese’s magisterial 1995 Self-​Determination of Peoples:  A Legal Reappraisal.31 Cassese was clear: ‘Lenin was the first to insist, to the international community, that the right of self-​determination be established as a general criterion for the liberation of peoples.’32 He engages in detail with the positions of Lenin and Wilson, Lenin’s call for the immediate liberation of those living under colonial rule, and Wilson’s championing of ‘orderly liberal reformism’.33 Cassese’s claim that it was the USSR that insisted on the proclamation of the right to self-​ determination in the UN Charter is supported by several sources and developed in detail.34 He gives Bandung its proper place, but maintains that the socialist countries were the most active advocates of anti-​colonial self-​determination, and ‘adopted and developed Lenin’s thesis that self-​determination should first and foremost be a postulate of anti-​colonialism’.35 Furthermore, it was the USSR that ‘strongly advocated the need for both Covenants formally to enshrine the right of peoples to self-​determination, which, in the Soviet view, was a precondition for the respect of individual rights’.36 For Cassese, decolonization took place in a quite different legal world than that depicted by Macklem, Burke, Jensen, and Pahuja. Cassese insisted that self-​ determination was an ‘international political postulate’ with a revolutionary content37. The latter scholars examine a world from which politics is strangely absent.

28 ibid 54. 29 Sundhya Pahuja, Decolonising International Law: Development, Economic Growth, and the Politics of Universality (CUP 2011) 59. 30 ibid 59. 31 Cassese (n 13). 32 ibid 14. 33 ibid 14–​23, Wilson’s words at 21, fn 30. 34 ibid 38. 35 ibid 44. 36 ibid 47. 37 The title of Cassese’s c­ hapter 2.

Contradictions of Soviet Diplomacy  409

III.  Lenin and self-​determination In December 1913 Lenin began to write on the question of the ‘right of nations to self-​determination’. In a short polemic38 on the question of independence for Ukraine, he insisted on ‘freedom to secede, for the right to secede’, while allowing that ‘the right to self-​determination is one thing, of course, and the expediency of self-​determination, the secession of a given nation under given circumstances, is another’. Later in December 1913,39 he again declared that a ‘democrat could not remain a democrat (let alone a proletarian democrat) without systematically advocating, precisely among the Great-​Russian masses and in the Russian language, the “self-​determination” of nations in the political and not in the “cultural” sense’. The latter, he said, meant only freedom of languages. Between April and June 1914, Lenin published his own substantial work on the question—​‘The Right of Nations to Self-​Determination’—​a polemic against Rosa Luxemburg, who opposed the breakup of the Tsarist Empire.40 In the first chapter, he insisted that ‘ . . . it would be wrong to interpret the right to self-​determination as meaning anything but the right to existence as a separate state’.41 Furthermore, ‘ . . . the national state is the rule and the “norm” of capitalism: the multi-​national state represents backwardness . . . from the standpoint of national relations, the best conditions for the development of capitalism are undoubtedly provided by the national state’.42 His understanding of the historical significance of the demand is highly significant here, for he says that: The epoch of bourgeois-​democratic revolutions in Western, continental Europe embraces a fairly definite period, approximately between 1789 and 1871. This was precisely the period of national movements and the creation of national states. When this period drew to a close, Western Europe had been transformed into a settled system of bourgeois states, which, as a general rule, were nationally uniform states. Therefore, to seek the right to self-​determination in the programmes of West-​European socialists at this time of day is to betray one’s ignorance of the ABC of Marxism. In Eastern Europe and Asia the period of bourgeois-​democratic revolutions did not begin until 1905. The revolutions in Russia, Persia, Turkey and China, the Balkan wars—​such is the chain of world events of our period in our ‘Orient’. 38 Vladimir I Lenin, ‘The Cadets and “The Right of Nations to Self-​Determination” ’ in Collected Works, vol 19 (Progress Publishers 1977) 525–​27. 39 Vladimir I Lenin, ‘National-​Liberalism and the Right of Nations to Self-​Determination’ in Collected Works, vol 20 (Progress Publishers 1977) 56–​58. 40 Vladimir I Lenin, ‘The Right of Nations to Self-​Determination’ in Collected Works, vol 20 (Progress Publishers 1977) 393–​454 (hereafter Lenin, ‘Right of Nations’). 41 ibid 397. 42 ibid 400.

410  Bill Bowring And only a blind man could fail to see in this chain of events the awakening of a whole series of bourgeois-​democratic national movements which strive to create nationally independent and nationally uniform states. It is precisely and solely because Russia and the neighbouring countries are passing through this period that we must have a clause in our programme on the right of nations to self-​determination.43

Thus, Lenin’s conception of self-​determination in 1914 was wholly and necessarily relevant, not only to the Tsarist Empire but also to the European colonial empires. Lenin returned to this question in 1916, in the midst of the First World War and before the October Revolution, summing up issues of self-​determination, when he wrote that it was autonomy that could enable a nation, hitherto forcibly retained within an existing state (such as Russia) to ‘crystallise into a nation’. He had in mind Norway’s declaration of sovereignty from Denmark in 1814, and envisaged a declaration by the Polish nation that they would no longer be ruled by the Russian Tsar.44 In May 1917 the issue of independence for Poland and Finland was again at the top of the agenda, and Lenin drafted a Resolution on the National Question. His starting point was clear, namely, recognition of the right of all nations forming part of Russia freely to secede and form independent states. To deny them such a right, or to fail as a Russian government to take the necessary measures to guarantee the realization of the right to secede in practice, would be in effect to support a policy of forcible seizure or annexation. 45 For Lenin at least, self-​determination was not a mere slogan, but a principle he put into practice with immediate effect within the former Russian Empire following the Bolshevik Revolution. According to Igor Blishchenko (1930–​2000), in his time one of the most authoritative Soviet scholars of international law,46 in a text published, ironically, in 1968, the year that the USSR crushed the ‘Czech Spring’, it was Lenin’s Decree on Peace of 26 October 1917,47 which, for the first time, extended the principle of the right to self-​determination to all peoples, thereby discarding the imperialist distinction between ‘civilized’ and ‘uncivilized’ nations.48 43 ibid 405–​06. 44 Vladimir I Lenin, ‘The Discussion on Self-​Determination Summed Up’ in Collected Works, vol 22 (Progress Publishers 1977) 320–​60. 45 Vladimir I Lenin, ‘Resolution on the National Question’ in Collected Works, vol 24 (Progress Publishers 1977) 302–​03. 46 I worked with Blishchenko for a number of years, in particular on the draft of the Rome Statute of the International Criminal Court; for a touching obituary by the International Committee of the Red Cross, see accessed 3 June 2019. 47 See accessed 14 August 2018. 48 IP Blishchenko, Antisovetizm i mezhdunarodnoe pravo [Antisovietism and international law] (Mezhdunarodnye otnosheniia 1968) (hereafter Blishchenko, [Antisovietism]) 69.

Contradictions of Soviet Diplomacy  411 In his article, Blishchenko moved next to answer a series of Western scholars who argued that the Decree was entirely hypocritical, first having no application to peoples within the USSR, and second, having been applied only to Finland in the former Tsarist Empire. He pointed to the substantial autonomy, if short of secession, enjoyed by Union and Autonomous Republics in the USSR in accordance with Article 17 of its Constitution. More importantly, he underlined the extent to which the principle was indeed put into practice by Lenin in the early years of the USSR. What he failed to point out, not surprisingly in 1968, is the fact that one of Lenin’s most bitter struggles with Stalin concerned independence for Georgia.49 Blishchenko celebrated the break-​up of the colonial system of imperialism, and the broad national liberation movements in Asia, Africa, and Latin America after the Second World War, which had posited the right of peoples to self-​determination with new force. He asserted, with reason, that the USSR had done everything to ensure that the right became one of the fundamental principles of contemporary international law. This was due in part the work of the Soviet Delegation at the 1945 San Francisco Conference,50 which drafted the UN Charter, as a result of which Article 2(1) of the Charter refers to ‘respect for the principle of equal rights and self-​determination of peoples . . . ’.51 Writing after the collapse of the USSR, in 1997,52 Blishchenko showed that the early Soviet government was remarkably consistent in implementing self-​ determination. He related that on 4 (17) December 1917 the Soviet government recognized the right to self-​determination of Ukraine. In response to the request of the Finnish government, the Soviet of Peoples’ Commissars on 18 (31) December 1917 resolved to go to the Central Executive Committee with a proposal to recognize Finland’s independence. In fact, it was the Whites, seeking to restore the Empire, who opposed Finnish independence. By a Decree of 29 December 1917 (11 January 1918) the right of the people of ‘Turkish Armenia’ to self-​determination was recognized. In answer to a request from the government of Soviet Estonia, on

49 Moshe Lewin, Lenin’s Last Struggle (Alan M Sheridan-​Smith tr, University of Michigan Press 2005). 50 Documents of the United Nation’s Conference on International Organization: Vol III (United Nations Information Organizations 1945) 622; and see Grigorii I Tunkin, Teoriia mezhdunarodnogo prava [The Theory of International Law] (2nd edn, Mezhdunarodnye otnosheniia 1970) 67 (hereafter Tunkin, [Theory of International Law]). The Conference brought together delegates from fifty Allied nations and took place from 25 April 1945 to 26 June 1945 in San Francisco, USA. The delegates reviewed and rewrote the Dumbarton Oaks agreements. The convention resulted in the creation of the UN Charter, which was opened for signature on 26 June 1945. 51 Blishchenko, [Antisovietism] (n 48) 75. 52 IP Blishchenko, ‘Soderzhaniye prava narodov na samoopredeleniye [The Content of the Right of Peoples to Self-​Determination]’ in AG Osipov (ed), Pravo narodov na samoopredeleniye:  ideya i voploshcheniye. [Right of Peoples to Self-​Determination: Idea and Realization] (Memorial 1997) 71; see also, on national liberation movements, DI Baratashvili, ‘Natsionalno-​osvoboditel’noye dvizheniye i razvitiye mezhdunarodnogo prava [The National Liberation Movement and the Development of International Law]’ (1967) 9 Sovyetskoye gosudarstvo i pravo [Soviet State and Law] 69–​75.

412  Bill Bowring 7 December 1918 Lenin signed a Decree on recognition of the independence of Estonia, Latvia, and Lithuania. Thus, it was clear that before the October Revolution Lenin and the Bolsheviks were in favour not only of a right of secession from Russia by nations, but also of territorial autonomy for minorities. These policies were key components of Bolshevik policy from the moment of Bolshevik success in October 1917. In ‘The Tasks of the Revolution’, published in October 1917, Lenin declared that a democratic peace would be impossible without an explicit renunciation of annexation or seizure. He emphasized that every nationality without exception in Europe and in the colonies should have the right to decide for itself whether it should form a separate state.53 This right was enshrined in the 1918 Constitution of the Russian Soviet Federated Socialist Republic (RSFSR). Every people should decide whether they wished to participate in the RSFSR and on what basis. This was the only basis for creating a free and voluntary state. In his letter of 26 September 1922, at the time of increasing conflict with Stalin as to the right of Georgia to gain independence outside the USSR—​to secede—​he wrote ‘ . . . we consider ourselves, the Ukrainian S.S.R. and others, equal, and enter with them, on an equal basis, into a new union, a new federation, the Union of the Soviet Republics of Europe and Asia’.54 On the basis of the 1918 Constitution, and Lenin’s principles, the Labouring Commune of Germans of the Volga was organized at the end of 1918, which in 1924 became an Autonomous Republic. The Bashkir ASSR was organized within the RSFSR in 1919, followed in 1920–​1921 by the Kirgiz (Kazakh) ASSR, and the Tatar, Dagestan, and Gorskiy autonomous republics, the Karelian Labouring Commune, and the Chuvash, Kalmyk, Marii, Botskaya (Udmurtskaya) autonomous oblasts (regions). In 1921–​1922 the Yakutsk ASSR, and the Karachaev-​Cherkess, Kabardino-​Balkar, Komi, Mongol-​Buryat, and a series of other autonomous oblasts were created.55 All of these were descendants of forms of autonomy already existing in Tsarist Russia. Finally, on 31 December 1922, shortly before his death, in ‘The Question of Nationalities or “Autonomisation” ’, Lenin wrote, warning against Stalin: ‘It is quite natural that in such circumstances the “freedom to secede from the union” by which we justify ourselves will be a mere scrap of paper, unable to defend the non-​ Russians from the onslaught of that really Russian man, the Great-​Russian chauvinist, in substance a rascal and a tyrant, such as the typical Russian bureaucrat is’.56

53 Vladimir I Lenin, ‘The Tasks of the Revolution’ in Collected Works, vol 26 (Progress Publishers 1977)  59–​68. 54 Vladimir I Lenin, ‘On the Establishment of the U.S.S.R.: Letter to L. B. Kamenev for Members of the Politburo’ in Collected Works, vol 42 (Progress Publishers 1977) 421–​23. 55 OE Kutafin, Rossiyskaya avtonomiya [Russian Autonomy] (Prospekt 2006) 133–​34. 56 Vladimir I Lenin, ‘The Question of Nationalities or “Autonomisation” ’ in Collected Works, vol 36 (Progress Publishers 1977) 606.

Contradictions of Soviet Diplomacy  413 Lenin by then regarded Stalin as just such a Great-​Russian chauvinist. Stalin was utterly opposed to self-​determination for Georgia. Lenin was for secession by Georgia, even if under Menshevik rule.57 This policy, at least, survived Lenin’s death. The 1924 Constitution of the USSR58 contained a chapter on ‘Sovereign Rights of the Member Republics’, including the right to freely withdraw from the Union. Article 13 of the Constitution of the RSFSR adopted in 1925, and intended to implement the 1924 USSR Constitution, recognized the right of certain nationalities (ethnicities), by decision of their own congresses of soviets, and with the approval of the highest bodies of the RSFSR, to the formation of autonomous soviet socialist republics and oblasts.

IV.  Soviet diplomacy and decolonization This section traces the continuation of Lenin’s principles, or at least their associated discourse, in the post-​First World War period. It focuses on two main Soviet protagonists: Platon Dmitrievich Morozov and Gleb Borisovich Starushenko. Platon Morozov (1906–​1986)59 was born in Leningrad, studied in Moscow, and was for more than twenty years a senior government legal adviser. In 1946 he was a member of the Soviet delegation at the Tokyo war crimes trials, and from 1951 to 1968 was the Soviet representative at the UN Human Rights Commission. He was also the head of the legal department of the Soviet Foreign Ministry. From 1960 to 1968 he was the Soviet representative in the UN Security Council. In 1969 he was elected a Judge of the ICJ and served from 1970 until August 1985, when he was obliged to retire for reasons of ill-​health. He died the following year. Gleb Starushenko (1922–​2007) was born in present-​day Ukraine.60 He was educated at the State Institute of Foreign Languages and Moscow State University. Specializing in international law, he was awarded a higher doctorate in legal science (Doktor Nauk). He was the author of many books and articles, including The Principle of National Self-​Determination in Soviet Foreign Policy written in 1960, translated into English in 1961, and referred to by Cassese and others.61 The Russian

57 Lewin (n 49) 61. 58 In Russian at accessed 19 September 2018, abridged in English at accessed 19 September 2018. 59 Arthur Eyffinger, ‘Platon Dmitrievich Morozov’ in The International Court of Justice, 1946–​1996 (Kluwer Law International 1996) 60 Biography at accessed 11 December  2016. 61 Gleb B Starushenko, The Principle of National Self-​Determination in Soviet Foreign Policy (Ivanov-​ Mumjiev tr, Foreign Languages Publishing House 1964) (hereafter Starushenko, Self-​Determination); first published in Russian in 1960 as Printsip samoopredeleniya narodov i natsii vo vneshnei politike Sovetskovo gosudarstvo.

414  Bill Bowring original published in 1960 is cited, along with Dmitriy Grushkin’s62 work,63 in all subsequent Russian texts on self-​determination. From 1982 to 1988 he was elected a member of the UN Committee for the Elimination of Racial Discrimination (CERD), and was its Vice-​Chairman in the 25th to 28th sessions, in 1982 and 1983. In 1997, at the age of 75, he participated in the seminar on The Right of Peoples to Self-​Determination, organized by Memorial.64 As Starushenko relates,65 on 8 December 1948, the Soviet delegation to the Third Session of the UN General Assembly, led by Andrei Vyshinsky, proposed including in the UDHR a clause saying ‘Every people and every nation have the right to self-​determination . . . ’.66 Mr Vyshinsky said: The USSR delegation wished to stress that the draft declaration contained no reference to the highly important question of the right of all nations to self-​ determination. The establishment of that right was one of the major achievements of the internal policy of the USSR. While the USSR delegation did not expect that right to be proclaimed in the declaration of human rights with the same forcefulness as in the Soviet Constitution, it believed that the example of the Soviet achievement should not be left out of account.

This was rejected in a roll call vote:67 eight in favour,68 thirty-​four against,69 and thirteen abstentions.70 John P Humphrey, the first Director of the UN Division of Human Rights, wrote in his memoirs:71

62 Dmitriy Valerievich Grushkin, ethnologist, in the middle of the 1990s worked with Memorial publishers, and participated in many missions to the zone of armed conflict in the North Caucasus. See accessed 5 January 2016). 63 DV Grushkin, ‘Pravo narodov na samoopredeleniye:  istoriya razvitiya i voploshcheniye ideyi’ in AG Osipov (ed), Pravo narodov na samoopredeleniye: ideya i voploshcheniye. [Right of Peoples to Self-​Determination: Idea and Realisation] (Memorial 1997) 6–​32 and at accessed 11 December 2016. 64 Gleb B Starushenko, ‘Samoopredeleniye kak pravovaya osnova predotvrashcheniya konfliktov i zashchity prav cheloveka [Self-​Determination as the Legal Foundation for the Prevention of Conflict and Protection of Human Rights]’ in Osipov (n 63) 52–​64. 65 Starushenko, Self-​Determination (n 61) 149–​50. 66 UN Doc A/​784 (8 December 1948). 67 UN Doc A/​PV.183. 68 Ukrainian Soviet Socialist Republic, Union of Soviet Socialist Republics, Yugoslavia, Byelorussian Soviet Socialist Republic, Colombia, Czechoslovakia, Pakistan, Poland. 69 United Kingdom, United States of America, Uruguay, Venezuela, Australia, Belgium, Bolivia, Brazil, Canada, Chile, China, Costa Rica, Denmark, Dominican Republic, France, Greece, Iceland, India, Iran, Lebanon, Luxembourg, Mexico, Netherlands, New Zealand, Nicaragua, Norway, Panama, Paraguay, Peru, Philippines, Siam, Sweden, Syria, Turkey. 70 Union of South Africa, Afghanistan, Argentina, Burma, Cuba, Ecuador, Egypt, El Salvador, Ethiopia, Guatemala, Haiti, Iraq, Liberia, Saudi Arabia. 71 John P Humphrey, ‘The Memoirs of John P. Humphrey, the First Director of the United Nations Division of Human Rights’ (1983) 5 Human Rights Quarterly 387, chs III, IV, V, VI, VII, and XI.

Contradictions of Soviet Diplomacy  415 The political atmosphere in which the Committee had to work was charged to the point of explosion by the Cold War with irrelevant recriminations coming from both sides. But in one respect the historical context was still favorable, for the debates on human rights had not yet become occasions for political duelling in the growing conflict over colonialism. The Soviet Union did attempt to introduce a reference to the ‘right’ of peoples to self-​determination, but it failed. Had the Declaration been adopted at any time after 1949 a more serious attempt would have been made and would probably have succeeded, with results easy to imagine in the light of what happened to the Covenants.72

The Soviet delegation (the representative was Mr AP Pavlov) made a similar proposal in 1949 at the Fifth Session, 9 May to 20 June, of the Commission on Human Rights,73 this time as a clause of International Covenants on Human Rights, to precede the present Article 20 of the draft Covenant: Every people and every nation shall have the right to national self-​determination. States which have responsibilities for the administration of non-​self-​governing territories shall promote the fulfilment of this right, guided by the aims and principles of the United Nations in relation to the peoples of such territories. The State shall ensure to national minorities the right to use their native tongue and to possess their national schools, libraries, museums, and other cultural and educational institutions.

Following the USSR’s intervention, the Fifth Session of the UN General Assembly, in Res 421 (V) (4 December 1950), 317th Plenary Session, at letter D, para 6, called upon the ECOSOC ‘to request the Commission on Human Rights to study ways and means which would ensure the right of people and nations to self-​ determination, and to prepare recommendations for consideration by the General Assembly at its sixth session’. The Commission did not fulfil the task assigned to it, and so the question was again raised at the Sixth General Assembly. It adopted two resolutions. The first, UNGA Res 545 (VI) (5 February 1952), recalled the resolution of 1950, decided to include in the International Covenant or Covenants on Human Rights to be drafted in the following terms ‘All peoples shall have the right of self-​determination’, and requested the Commission on Human Rights to prepare recommendations for the seventh session of the General Assembly.

72 ibid 426. 73 See Economic and Social Council (ECOSOC), ‘Report of the Fifth Session of the Commission on Human Rights to the Economic and Social Council’ (Lake Success, New York 23 June 1949) UN Doc E/​CN.4/​350  accessed 19 September 2018.

416  Bill Bowring The second resolution, UNGA Res 549 (VI) (5 February 1952) requested the ECOSOC to instruct the Commission on Human Rights to ‘ . . . give priority to the question of the right of people to self-​determination which the Commission was forced to defer at its seventh session owing to lack of time’. On 15 April 1952, the 254th meeting (afternoon) of the eighth session of the Commission on Human Rights74 discussed a draft clause submitted by Mr Morozov.75 He wished to explain: . . . his country’s position on self-​determination. The national problem had been successfully solved in the USSR, where all races, nationalities, peoples and tribes enjoyed full equality of all rights, including the right to self-​determination, and had been developing their own economy and culture in entire freedom and with the generous and disinterested assistance of the USSR. The right to self-​determination was guaranteed by the USSR Constitution, Article 123 of which not only accorded full equality of rights to USSR citizens, irrespective of their nationality or race  .  .  .  while Article 17 reserved to every Union Republic the right freely to secede from the USSR. Having eliminated the problem in their own midst, the peoples of the USSR had always viewed with great sympathy all attempts to solve it elsewhere. The USSR had steadfastly supported all peoples fighting for their national independence and sovereignty.

He gave the examples of support to Syria and Lebanon demanding the evacuation of foreign troops from their territory, a similar request in 1947 by Egypt, and most recently in Tunisia. The ‘problem’ had been far from ‘solved’ in the USSR. Mr Morozov also responded to the long intervention at the previous meeting that day of Samuel Hoare, the UK representative.76 Mr Hoare had argued for a highly restrictive interpretation of the UN Charter’s reference to self-​determination: The Charter established a distinction between the two concepts. On the one hand, in Article 1, paragraph 2 and in Article 55, it proclaimed the principle of equal rights and self-​determination of peoples, which it considered as forming a whole. The references to ‘peoples’ in the Preamble of the Charter were to the peoples of the sovereign states represented at San Francisco. The references to self-​determination in those provisions of the Charter would therefore seem to be 74 UN Doc E/​CN.4/​SR.254. 75 Starushenko, Self-​Determination (n 61)  151; Economic and Social Council (ECOSOC), ‘Draft Resolution by the Union of Soviet Socialist Republics’ (15 April 1952) UN Doc E/​CN.4/​L.21. 76 Samuel Hoare was an Under-​Secretary of State in the Foreign and Commonwealth Office and served as UK representative at the UN Commission for Human Rights for many years. See Samuel Hoare, ‘The UN Commission on Human Rights’ in Evan Luard (ed), The International Protection of Human Rights (Thames & Hudson 1967) 79–​87. He was knighted in 1957; see accessed 11 December  2016.

Contradictions of Soviet Diplomacy  417 to the recognition of the sovereignty of sovereign States and the obligation of such States to respect the sovereignty of other States. That was, at any rate one, and an important aspect of self-​determination.77

Mr Morozov’s reply was: The United Kingdom representative had been somewhat less cautious; he had indicated that the formula adopted by the General Assembly only applied an obligation already undertaken by the States signatories to the Charter. This restrictive interpretation was plainly the position of a colonial power and required no comment. The General Assembly, in adopting that formula, had most certainly given it an altogether different meaning. It was worthy of note that, in the conception of the United Kingdom representative, there was a great difference between recognition of the right to self-​determination and the assumption by a State of the obligation to implement that right. The Commission adopted the proposal to include the clause on nations’ right to self-​determination in the International Covenants on Human Rights, and this was approved by the Third Committee of the Tenth General Assembly.78

At the end of 1952, the countries that were former colonies, actively supported by the Soviet Union, succeeded in securing the adoption by the Seventh General Assembly of three very significant resolutions aimed at compelling the colonial powers to respect the principle of self-​determination (UNGA Res 637 (VII) (16 December 1952)).79 Resolution 637A (VII) recommended that states administering trust and non-​self-​governing territories should not only recognize the principle of self-​determination but should encourage and facilitate its implementation. Resolution 637B (VII) asked administering powers to inform the UN about the extent to which the populations of non-​self-​governing territories enjoy this right. And Resolution 637C (VII) recommended the Commission on Human Rights to continue to draw up recommendations on the observance of the right. As the Ninth Session of the Commission (1953) had no time to pursue these issues, the Eighth General Assembly asked it to give priority to this question at its next session.80 The Tenth Session (23 February to 16 April 1954) drew up a draft resolution to establish a Commission that should . . . examine any situation resulting from alleged denial or inadequate realization of the right of self-​determination, which falls within the scope of Article 14 of the 77 Commission on Human Rights, ‘Eighth Session, Summary Records of the 250th Meeting’ (30 April 1952) accessed 19 September 2018. 78 Starushenko, Self-​Determination (n 61) 152. 79 ibid 153. 80 UNGA Res 738 (VIII) (28 November 1953).

418  Bill Bowring Charter and to which the Commission’s attention is drawn by any ten Members of the United Nations.81

Starushenko reports82 that the struggle around the content of self-​determination was especially heated in the debate on the draft Covenants in the Third Committee of the Tenth General Assembly. The discussion of the proposed common Article 1, on self-​determination, took some thirty sittings. The US inspired the Secretary General Dag Hammarskjöld to address the Committee on 11 October 1955. This is Starushenko’s appreciation of what happened. ‘ Alleging that the confused question of self-​determination threatened to prevent the Committee from doing the job efficiently, [he] urged it to remove the article . . . from the covenants. His recommendation was sharply rejected by the delegations of the Soviet Union, Afghanistan, Iran, Saudi Arabia and other countries, and that compelled him to with draw his proposal. Having smashed the resistance to the colonialists, the Committee voted (33 to 12 with 13 abstentions) to include the article on self-​determination in the [covenants]’. But as King and Hobbins point out, Hammarskjöld in fact had achieved his purpose, and the adoption of the Covenants was delayed for a further decade. “ In the event, following Hammarskjöld’s decision, just such a debate took place and the Covenants were not opened for signature for another full decade. Had Humphrey’s advice been followed, the UN may have side-​stepped the political battles by delegating the tough issues to a conference of experts. Such a group, sufficiently far removed from the ordinary politics of the Third Committee, would have a much greater chance for consensus, not to mention flexibility of working methods and greater dedication to the issues involved. Ironically, this was the exact approach the Secretary-​General would soon take on the issue of self-​determination. In thinking of the problem it has occurred to me, therefore, that one possible solution might be for the United Nations to provide a forum where the question [of self determination] can be discussed in an atmosphere of calm. And for this purpose I do see some justification in setting up a new committee of a purely temporary character. For what is needed, in the first instance in any event, is agreement on basic principles -​an agreement that can undoubtedly best be reached if the discussion is divorced from burning political controversies. The time of the General Assembly and of the Councils is taken up by specific problems and these problems are, most of them, highly controversial” .83 81 Commission on Human Rights, ‘Report of the 10th Session, 23 February-​16 April 1954’ (1954) UN Doc E/​CN.4/​705, 78. 82 Starushenko, Self-​Determination (n 61) 155–​56. 83 ‘Statement by the Secretary-​General before the Third Committee at its 633rd Meeting, Tenth Session, Third Committee of the General Assembly, Agenda Item 28’ (11 October 1959) UN Doc

Contradictions of Soviet Diplomacy  419 The intense conflict between the USSR, the newly independent states and their allies, and the colonial powers continued through the Eighteenth, Nineteenth and Twentieth Sessions of the ECOSOC, and the Eleventh, Twelfth and Thirteenth General Assemblies. Finally, on 12 December 1958 the UNGA adopted the draft submitted by the Commission on Human Rights by fifty-​two votes against fifteen (including the US and UK), with eight abstentions. The resolution noted that the right of peoples and nations to self-​determination in the two draft Covenants included ‘permanent sovereignty over their natural wealth and resources’, decided to establish a Commission, ‘to conduct a full survey of the status of this basic constituent of the right of self-​determination, with recommendations, as necessary, for its strengthening’. However, King and Hobbins note that the ‘Secretary-​General was not alone in his concern regarding the problem posed by the issue of self-​determination. Cassin and Humphrey felt that the proposal to place the right of peoples to self-​ determination as Article 1 in both draft Covenants was a mistake.84 Indeed, Humphrey worked tirelessly to get it removed from the Covenants. Ultimately, Article 1 was adopted by the UNGA, while consideration of the commissions was deferred and eventually abandoned.85

V.  Who was responsible for the 1960 Declaration? The question of a declaration on the granting of independence to colonial countries and peoples was initially proposed for inclusion in the agenda of the UNGA by Nikita Khrushchev, the Chairman of the Council of Ministers of the USSR, during his address to the Assembly on 23 September 1960. 86 This proposal was formalized in a letter to the President of the UNGA of the same day,87 which was submitted together with a draft Declaration on the granting of independence to colonial countries and peoples.88 On 28 September 1960, the General Committee recommended that the item proposed by the USSR be included in the UNGA’s agenda at its fifteenth session of the same year and that it be allocated to the First (Political and Security) Committee. On 10 October, the A/​C.3/​L.466, 2. In Jeff King and AJ Hobbins, ‘Hammarskjöld and Human Rights: The Deflation of the UN Human Rights Programme 1953–​1961’ (2003) 5 Journal of the History of International Law 337, 351–​52. 84 King and Hobbins (n 83) 363. 85 No mention of the proposed commissions is found in the Secretary-​General’s annual reports for 1957–​1961. 86 (1960) United Nations Yearbook 44. The next paragraphs draw from this sober and authoritative account, which contrasts strongly with the more tendentious arguments of Macklem (n 18) and Burke (n 22). 87 UN Doc A/​4501 (23 September 1960). 88 UN Doc A/​4502 (23 September 1960).

420  Bill Bowring UNGA decided to place the item on its agenda and, on 13 October, a proposal by the USSR to discuss the item in plenary meetings was unanimously adopted. It cannot therefore be denied that this was the initiative of the USSR. The topic was discussed in the UNGA from 28 November to 7 December 1960 and from 13 December to 14 December 1960.89 The UNGA had before it, in addition to the draft Declaration submitted by the USSR,90 another draft submitted by Cambodia on 28 November on behalf of twenty-​six Asian and African countries, and which was eventually sponsored by forty-​three delegations.91 This is the draft to which Macklem and Burke, among others, wish to attribute the credit for bringing the issue before the UNGA. The UN account records that representatives of several of the sponsoring countries of the forty-​three-​power draft welcomed the initiative taken by the USSR in bringing the question of colonialism before the UNGA; the Asian-​African states, they said, had long been concerned with that problem. Many representatives of Asian-​African Members referred to the Bandung Conference in 1955, where countries of Asia and Africa had initiated a number of fundamental principles which had become the cornerstone of their policy towards the colonial countries and peoples and which had been re-​emphasized at the conferences of African states at Accra in 1958, at Monrovia in 1959, and at Addis Ababa in 1960. They stressed that the draft declaration they were now submitting was the culmination of those principles.92 Indeed, Victor Kattan has shown in detail that the USSR’s support for self-​determination in the third world was attractive to many of the emerging third-​world leaders in the inter-​war years. Castro, Che Guevara, Nehru, Nasser, and Sukarno were all influenced by the ideas and principles of the French, Russian, and Chinese Revolutions, and by the Leninist ideologies of the communist parties in their own countries.93 Australia and New Zealand agreed with the UK’s contention that colonialism was a necessary transitional phase and that non-​self-​governing and trust territories had made remarkable progress towards independence, in accordance with the provisions of the UN Charter. Each case was governed by its own circumstances, and the test was always that of determining what would best suit the interests of the peoples whose destiny was at stake. In some cases, progress had been slow because of the special circumstances of a particular territory.94 The US representative also took the opportunity to attack the USSR, and spoke of ‘a new colonial system’ that had been imposed by force on many peoples of many 89 UN Doc A/​PV.925-​939 and A/​PV.944-​947. 90 UN Doc A/​4502. 91 UN Doc A/​L.323 (23 September 1960) and Adds. 1 to 6. 92 (1961) United Nations Yearbook 46. 93 See Victor Kattan, ‘Self-​Determination as Ideology: The Cold War, the End of Empire, and the Making of UN General Assembly Resolution 1514 (14 December 1960)’ in Luca Pasquet and Klara van der Ploeg (eds), International Law and Time: Narratives and Techniques (Springer forthcoming). 94 (1961) United Nations Yearbook 47.

Contradictions of Soviet Diplomacy  421 races, many of whom had been free for centuries. The entire system was disguised by censorship, by ruthless thought control, and by an elaborate misuse of words like ‘democratic’ and ‘autonomous’. However, its tragic reality had been attested to by the millions who had escaped it and by the tens of thousands who had died trying to shake it off. The US representative referred to the USSR at the ‘arch-​practitioner’ of this ‘new and lethal colonialism’.95 He said that the forty-​three-​nation draft declaration quite rightly spoke out against colonialism ‘in all its manifestations’.96 For his part, Starushenko did not deny that the Soviet draft had not been adopted, and noted that ‘ . . . the Declaration reflects some of the main Soviet proposals on the issue . . . The final text . . . bears an imprint of compromise. It does not include for instance the proposal in the Soviet draft on the abolition of colonial military bases and leased territories.’97 In her recent analysis, Mary Heiss paints a more complete picture: The Afro-​Asian bloc at the UN was anxious to take the lead itself in drafting an anti-​colonial resolution that avoided outright Cold War divisions and set about this task with enthusiasm and dedication even as Soviet diplomats tried to claim that ‘this [was] their item’. Borrowing heavily from the Bandung final communiqué of 1955, the draft resolution ultimately co-​sponsored by 43 Asian and African states was an effort to eliminate explicit Cold War considerations from the issue of declaring an end to colonialism and to focus instead on the broad goal of seeing the fulfilment of the UN Charter’s pledge that all peoples deserved the chance to govern themselves. Condemning ‘colonialism in all its forms and manifestations,’ the draft resolution avoided the shrill tone of the Soviet declaration, made no mention of dismantling foreign bases, and did not call for specific timetables or target dates.98

The forty-​three-​nation draft was adopted without change by the UNGA, by a vote of eighty-​nine to zero, with nine abstentions,99 in UNGA Res 1514 (XV) entitled ‘Declaration on the Granting of Independence to Colonial Countries and Peoples’. Heiss refers to the US abstention as a ‘public relations fiasco’, and shows in detail how Eisenhower succumbed in the end to direct pressure from the British Prime Minister Harold Macmillan, who dismissed the resolution as having ‘no connection with reality’ and issued a plaintive plea that Britain and the United States

95 See Mary A Heiss, ‘Exposing “Red Colonialism”: U.S. Propaganda at the United Nations, 1953–​1963’ (2015) 17 Journal of Cold War Studies 82. 96 (1961) UN Yearbook 48. 97 Starushenko, Self-​Determination (n 61) 156. 98 Heiss (n 95) 96–​97. 99 The colonial states and their allies: Australia, Belgium, Dominican Republic, France, Portugal, Spain, Union of South Africa, United Kingdom, United States.

422  Bill Bowring ‘stand together’. Reluctant to go against the country’s ‘strongest ally’, particularly when US officials had themselves noted so many shortcomings in the draft resolution, Eisenhower instructed the US mission to abstain.100 Following on the heels of Res 1514 (XV) came a whole series of documents of a similar type: UNGA Res 1803 (XVII) (14 December 1962) on ‘Inalienable sovereignty in relation to natural resources’; UNGA Res 2105 (XX) (20 December 1965)  ‘On the realisation of the Declaration on the granting of independence to colonial countries and peoples’—​the UNGA recognized the legitimacy of the struggle of colonial peoples against colonial domination in the exercise of their right to self-​determination and independence, and it invited all States to provide material and moral support to national liberation movements in colonial territories.

VI.  Self-​determination and national liberation The right of peoples to self-​determination became a legal right in the ICCPR and ICESCR and achieved the status of customary law in the 1970 Declaration on Principles of International Law Concerning Friendly Relations and Co-​operation among States in accordance with the UN Charter (UNGA Res 2625). In the 1966 UN Covenants on human rights (ICCPR and ICESCR), which to begin with were developed as a single document, it was decided that the provision on self-​determination be included on the basis that: a) it ‘ . . . is the source or essential foundation for other human rights, since there cannot be authentic realisation of individual rights without realisation of the right to self-​determination’ b) in drafting the Covenants the realisation and protection of the principles and goals of the UN Charter must be taken into account, including the principles of equal rights and self-​determination of peoples c) a series of provisions of the Universal Declaration of Human Rights are directly connected to the right to self-​determination d) if the right was not included in the Covenants, they would be incomplete and ineffective.101 The success of the USSR and its allies in the 1960s had momentous consequences for the legal and political process of decolonization. Later resolutions of the UNGA

100 Heiss (n 95) 99. 101 Grushkin (n 63) 12 citing Aureliu Cristescu, ‘The Right to Self-​Determination: Historical and Current Development on the Basis of United Nations Instruments’ (New York 1981) UN Doc E/​CN.4/​ Sub.2/​404/​Rev.1.

Contradictions of Soviet Diplomacy  423 ensured that the so-​called ‘national liberation movements’102 were recognized as the ‘sole legitimate representatives’ of the relevant peoples. In other words, ex-​territorial social and political organizations were in fact made equal to sovereign subjects of international law. Examples were the Palestine Liberation Organization (PLO), the South West African Peoples Organisation (SWAPO), the ANC (African National Congress), and the PAC (Pan African Congress). In 1973 the UN declared that it recognized SWAPO as the ‘sole authentic representative of the people of Namibia’. And in 1974 the PLO was recognized by the majority of member states of the UN as the lawful representative of the Palestinians, with corresponding status at the UN. There are writers like Christopher Quaye who ignore the Soviet role in promoting the legal right to self-​determination or supporting the national liberation movements.103 However, Galia Golan, although seemingly unaware of the international law dimension, wrote in the context of national liberation movements that:  ‘The term preferred by the Soviets [to “independence”] as an overall, all-​ inclusive type of objective was self-​determination.’104 Her book demonstrates the huge resources devoted by the USSR to support of all kinds for a very wide range of national liberation movements in the third world. Tables she prepared list forty-​ three movements in twenty-​six countries, with thirteen instruments of ‘Soviet behaviour’.105 Roger Kanet noted that ‘Soviet trade with the developing nations increased more than eleven times from 1955 to 1970.’ In 1970 it increased an additional 15.7 per cent.106 Furthermore, Bhabani Sen Gupta pointed out that in cultivating friendly, viable forces, the Soviet Union has persistently tried to satisfy some of the felt needs of the power elites of Third World societies. In South Asia, they have come forward to provide aid for industrialisation programs in India, for which the Indians could not secure resources either domestically of from Western nations . . . .107

I would contend, contrary to these authors, that it was not as a result of Soviet propaganda, but through the logic of the new international law, developed through the efforts of the USSR and its allies, that a people with the right to self-​determination faced with aggressive attempts to deny that right enjoyed the right of self-​defence under Article 51 of the UN Charter, and was in all respects be considered a subject of international law. I should add that this was not the opinion of the majority of Western jurists. On the contrary, the role of the USSR, 102 See Galia Golan, The Soviet Union and National Liberation Movements in the Third World (Unwin Hyman 1988). 103 Christopher O Quaye, Liberation Struggles in International Law (Temple University Press 1991). 104 Golan (n 102) 136. 105 ibid 262–​67. 106 Roger E Kanet, ‘The Soviet Union and the Colonial Question 1917–​1953’ in Roger E Kanet (ed), The Soviet Union and the Developing Nations (Johns Hopkins University Press 1974). 107 B Gupta, ‘The Soviet Union in South Asia’ in ibid.

424  Bill Bowring as noted earlier, was for the most part ignored. Thus, Portugal was at that time waging war against the peoples of Angola and Mozambique; those peoples were therefore victims of aggression and enjoyed the right of self-​defence, and third party states had the right and duty to come to their assistance.108 A year earlier, in a more formal article defending the dubious concept of ‘proletarian internationalism’, GI Tunkin also linked the ‘struggle for international peace and security’ with the ‘struggle for the freedom and independence of peoples’, with reference especially to Res 1514 (XV).109 1968 was not only the year of the Soviet invasion of Czechoslovakia, but also a crucial moment in the American war in Vietnam. The invasion of Czechoslovakia took place against the background of the emergence of a new ‘socialist international law’, with a new approach to traditional concepts of sovereignty. In 1970, Tunkin published a revised second edition of his textbook International Law.110 Dealing with the Prague events, Tunkin argued that these were a logical extension of the concept already well developed and applied in Hungary in 1956. This was the legal prevention of inroads by capitalist influences into a socialist state.111 The international law framework is provided through an analysis of the concept of sovereignty. Tunkin noted that both general and socialist international law respected the concept of ‘sovereignty’, but concluded that respect is not the same thing in the two systems.112 Socialist states would continue to insist on respect for the principle as developed in general international law when speaking of the relationships between themselves and capitalist states so as to prevent capitalist states from intervening in the internal affairs of Socialist states, but the concept of sovereignty had evolved within the conceptual framework of ‘proletarian internationalism’ as regards the mutual relationships of socialist states. His translator, William Butler, commented: ‘The Soviet invasion of Czechoslovakia plainly was a difficult moment for his approach to international law, and his treatment of a “socialist international law” impressed, rightly or wrongly, as something less than enthusiastic.’113 Writing in 1976,114 Boris Meissner emphasized that from 1968 the opposition of non-​Russian ethnic groups in the USSR to Brezhnev’s policies of centralization and Russification had also been growing. The Soviet dissidents, in particular Andrei 108 Blishchenko, [Antisovietism] (n 48) 76–​77. 109 Grigorii I Tunkin, ‘Bor’ba dvukh kontseptsiy v mezhdunarodnom prave’ (1967) 11 Sovyetskoye gosudarstvo i pravo [Soviet State and Law] 140, 144–​46. 110 Tunkin, [Theory of International Law] (n 50) and Grigorii I Tunkin, Theory of International Law (Harvard University Press 1974). 111 Tunkin, [Theory of International Law] (n 50) 493, cited in John N Hazard, ‘Renewed Emphasis Upon a Socialist International Law’ (1971) 65 American Journal of International Law 142, 145. 112 Tunkin, [Theory of International Law] (n 50) 459. 113 W Butler, ‘The Learned Writings of Professor G. I. Tunkin’ (2002) 4 Journal of the History of International Law 394. 114 Boris Meissner, ‘The Soviet Concept of Nation and the Right of National Self-​Determination’ (1977) 32 International Journal 56.

Contradictions of Soviet Diplomacy  425 Sakharov, took up the injustice suffered by the Crimean Tatars, deported from their homeland to Central Asia in 1944, and by the Meskhetians, who had been expelled from Georgia. Sakharov first mentioned the Crimean Tatars in a memorandum of June 1968. On 19 March 1970, Sakharov, together with VF Turchin and RA Medvedev, sent a letter to the Soviet leadership demanding that all the rights of nations which had been forcibly resettled under Stalin be restored, and that national autonomy and the right to return to their ancestral homeland be granted to all the peoples who had been forcibly deported. These demands were reiterated in Sakharov’s memorandum to Brezhnev of 5 March 1971. Then, in My Country and the World, his English-​language book published in October 1975,115 Sakharov again expressed his opposition to the oppression of the non-​Russian nationalities. He drew attention to the fact that many political prisoners were so-​called ‘nationalists’ from Ukraine, the Baltic republics, and Armenia. These individuals had originally been brought to trial principally because of their concern for the preservation of their national culture in the face of Russification, and had been given particularly heavy sentences. As well as the Crimean Tatars, the fate of the Volga Germans and the Jews were the subject of Sakharov’s attention.116 Thus, the seeds were sown for the collapse of the USSR in 1991, the ‘parade of sovereignties’ which threatened the continuing existence of the Russian Federation itself, and the continuing relevance of self-​determination to Russia’s recent actions in Crimea, eastern Ukraine, and to the gathering storms relating to the future of Russia’s precarious regionalism and federalism.117 It is clear to the present rulers of Russia that Lenin’s whole-​hearted advocacy for and implementation of the right of nations to self-​determination played a crucial role in the destruction of the Tsarist Empire and in the collapse of the USSR, and continues to pose an existential threat to contemporary Russia. My account and analysis in this chapter has shown that although the USSR’s diplomacy was instrumental in securing the enshrinement of the rights of peoples to self-​determination as a legal right in international law, and that the USSR diplomatically and materially made an enormous contribution to the process of decolonization, the contradictions of the position of the USSR, in particular Mr Morozov’s blithe assertion that there was no longer any problem in the USSR to which I have referred, in the end helped to bring about the collapse of the USSR itself.

115 Andrei Sakharov, My Country and the World (Harvill Press 1975). 116 Meissner (n 114) 76–​77. 117 See the web portal After Empire: Regionalism and Federalism in Russia at accessed 5 January  2016.

19

The Failed Battle for Self-​Determination The United States and the Post-​War Illusion of Enlightened Colonialism, 1945–​1975 Olivier Barsalou

I.  Introduction Building on United States (US) Department of State (DoS) records and archives, this chapter develops two central arguments:  one historical and the other conceptual. Firstly, from a historical perspective, this chapter argues that the US government contributed to transforming, between 1945 and 1975, the right to self-​determination—​implying a right to decolonization—​into a right to internal self-​determination—​implying a right to democratic participation, a shift embodied by Common Article 1 of the 1966 Human Rights Covenants. But why did the American government defend such a conception of the right to self-​ determination? While the US opposed colonialism because of the legacy of the American War of Independence, it had strong economic self-​interest in seeking the end of the European empires. It was also worried about the spread of communism, which was often confused with the rise of radical nationalist movements in Asia, Africa, and Latin America. Washington DC saw these transformations through Cold War lenses: should it support European allies or follow the decolonial wake to prevent a possible communist takeover?1 Unsurprisingly, the US government was thus highly sceptical of the non-​aligned movement when it emerged in 1954–​1955,2 as it was also of the decolonization movement as a whole3 (and of its domestic ramifications).4 The right to internal self-​determination arose to accommodate and reconcile US commitment to anti-​colonialism with the desire of 1 For a counter-​narrative, see Vijay Prashad, The Darker Nations:  A People’s History of the Third World (New Press 2007). 2 On the non-​aligned movement, the Bandung conference, and its aftermath, see Luis Eslava, Michael Fakhri and Vasuki Nesiah (eds), Bandung, Global History, and International Law:  Critical Pasts and Pending Futures (CUP 2017); Frank Gerits, ‘Bandung as the Call for a Better Development Project: US, British, French and Gold Coast Perceptions of the Afro-​Asian Conference (1955)’ (2016) 16 Cold War History 255–​72. 3 Odd Arne Westad, The Cold War: A World History (Basic Books 2017). 4 Thomas Borstelmann, The Cold War and the Color Line: American Race Relations in the Global Arena (Harvard University Press 2001); Mary L Dudziak, Cold War Civil Rights: Race and the Image of American Democracy (Princeton University Press 2000). Olivier Barsalou, The Failed Battle for Self-Determination In: The Battle for International Law: South-North Perspectives on the Decolonization Era. Edited by: Jochen von Bernstorff and Philipp Dann, Oxford University Press (2019). © The Several Contributors. DOI: 10.1093/oso/9780198849636.003.0020

The United States and the Post-War Illusion  427 succeeding American administrations to preserve the global order that emerged in 1945 in San Francisco. Secondly, this understanding of the right to self-​determination rested on an intellectual tradition, a jurisprudence, and an argumentative structure that had a long history connecting three distinct periods of European and American (sixteenth-​ century Spain, eighteenth-​and nineteenth-​century Great Britain, and twentieth-​ century US) practices of imperial rule over weaker peoples without their consent, each structured around a specific ethical system promising to bring benefits to the ruled.5 In each historical setting, the idea (as opposed to the right, which was legally formalized in the twentieth century) of self-​determination emerged as a corollary, yet necessary, product of imperial trusteeship designed to govern, improve, and ultimately, emancipate dominated peoples.6 Post-​1945 American administrations became the heirs and the guardians of this connection between imperial trusteeship and the self-​determination. For the American government, the right to self-​determination in international law arose as a justification and a rationalization of imperial trusteeship practices over subjugated peoples. Self-​determination was considered as a conditional right enabling post-​colonial self-​rule only when colonial powers decided a requisite level of political maturity had been achieved. This understanding departs from traditional scholarly accounts of the emergence of the right to self-​determination in international law.7 Many international legal scholars (and historians) associate the rise of the right to self-​determination with the emergence of an enlightened conception of republicanism in the eighteenth century8 or a teleological history spanning the early twentieth century from Woodrow Wilson9 and the interwar period10 to the Balkan Wars.11 While this chapter doesn’t dispute the idea that the rise of both nationalism and republicanism were historically connected in many corners of the world, it rejects the 5 Ramendra Nath Chowdhuri, International Mandates and Trusteeship Systems:  A Comparative Study (Springer Netherlands 1955) 12. 6 Olivier Barsalou, International Law and the Path to Liberty: The Imperial Origins of the Right to Self-​ Determination, 1500–​1945, unpublished article manuscript, on file with the author. 7 Steven L Jensen, The Making of International Human Rights:  The 1960s, Decolonization, and the Reconstruction of Global Values (CUP 2016); Roland Burke, Decolonization and the Evolution of International Human Rights (University of Pennsylvania Press 2010). 8 Daniel Thürer and Thomas Burri, ‘Self-​Determination’ in Rüdiger Wolfrum (ed), The Max Planck Encyclopedia of Public International Law (OUP 2009) para 1 (hereafter Thürer and Burri, ‘Self-​Determination’); James D Summers, Peoples and International Law:  How Nationalism and Self Determination Shape a Contemporary Law of Nations (Martinus Nijhoff 2007); David Raĭc, Statehood and the Law of Self-​Determination (Kluwer Law International 2002) ch 5; Antonio Cassese, Self-​ Determination of Peoples: A Legal Reappraisal (CUP 1995) ch 2 (hereafter Cassese, Self-​Determination of Peoples). 9 Erez Manela, The Wilsonian Moment:  Self-​ Determination and the International Origins of Anticolonial Nationalism (OUP 2007) (hereafter Manela, The Wilsonian Moment). 10 Arnulf Becker Lorca, ‘Petitioning the International: A ‘Pre-​History’ of Self-​Determination’ (2014) 25 European Journal of International Law 497–​523. 11 Oded Haklai, ‘From Independent Statehood to Minority Rights:  The Evolution of National Self-​Determination as an International Order Principle in the Post-​State Formation Era’ (2015) 14 Ethnopolitics 461–​69.

428  Olivier Barsalou argument according to which the right to self-​determination in international law has republican roots. Furthermore, while self-​determination claims admittedly accelerated the break-​up of European empires between 1945 and 1975, the parallel construction of the right to self-​determination within the United Nations (UN) provided a new template for institutionalizing foreign control over territories and peoples.12 Post-​World War Two imperial trusteeship aimed not only at civilizing subjugated populations but at preparing them for self-​government.13 Following Mark Beissinger’s argument, promises of self-​determination came to be construed as a ‘script and technology for imposing control through hollowing out its substance and embracing its form’.14 Ultimately, the right to self-​determination failed the battle for decolonization. The UN Charter incorporated a legal justification for the maintenance and renovation of colonial and trusteeship practices which, ultimately, transcended the decolonization era. Such a conception of the right to self-​determination still governs contemporary legal claims about international trusteeship and self-​determination. As such, 1945 is the ‘year zero’15 of the story of the right to self-​determination this chapter tries to tell: a moment where not only ideas about self-​determination in global politics coalesced and crystallized in legal form but also (and more importantly) a moment which shaped and defined the strange triumph of sovereignty and the proliferation of the nation-​state form in the 1950s, 1960s, and after.16 The chapter first analyses the evolution of the US government’s attitude on the colonial question between the adoption of the Atlantic Charter in August 1941 and the opening of the UN Conference on International Organization (UNCIO) in April 1945. It shows how the American government slowly departed from a position favouring the outright dismantling of European colonial empires to a more circumspect attitude emphasising the necessity to renovate colonialism and to extend the tutelage of colonial peoples. Next it explains how the US delegation at the UNCIO succeeded in embedding in the Charter the idea of a gradual, managed, and orderly dismantling of European empires. The Charter promised self-​ determination but only after a transitional period of tutelage. The chapter then shows how that political and legal compromise reached at San Francisco in June 1945 allowed the US and other imperial powers to turn those colonial territories 12 Guy Fiti Sinclair, To Reform the World: International Organizations and the Making of Modern States (OUP 2017); Mark Beissinger, ‘Self-​Determination as a Technology of Imperialism: The Soviet and Russian Experiences’ (2015) 14 Ethnopolitics 479, 480 (hereafter Beissinger, ‘Self-​Determination’). 13 Ronald Robinson, ‘The Moral Disarmament of African Empire 1919–​1947’ (1979) 8 The Journal of Imperial and Commonwealth History 86–​104. 14 Beissinger, ‘Self-​Determination’ (n 12)  479, 482; Neta C Crawford, ‘Decolonization through Trusteeship: The Legacy of Ralph Bunche’ in Robert A Hill and Edmond J Keller (eds), Trustee for the Human Community: Ralph J. Bunche, the United Nations, and the Decolonization of Africa (Ohio University Press 2010) 94. 15 Ian Buruma, Year Zero: A History of 1945 (Penguin 2013). 16 Eva-​Maria Muschik, ‘Managing the World: The United Nations, Decolonization, and the Strange Triumph of State Sovereignty in the 1950s and 1960s’ (2018) 13 Journal of Global History 121–​44.

The United States and the Post-War Illusion  429 into Western assets in the global Cold War. In doing so, they turned the revolutionary nature of the right to self-​determination into a justification for renovated trusteeship relations.

II.  From self-​determination to tutelage: the US and the creation of the UN trusteeship regime Before the Second World War, the principle of self-​determination didn’t have any formal legal status in international law even if it nonetheless played a significant political role.17 The Paris Peace Treaties ratified in the aftermath of the First World War incorporated some prototypes of what the right to self-​determination might look like in the future. Mandates, minority rights protection regimes, and plebiscites were among the first legal devices developed during the interwar era to protect ‘minorities’, ‘backward peoples’, and other stateless peoples. For the American government, the 1941 Atlantic Charter was a qualified international commitment to dismantling European empires in an orderly and gradual manner, whereas for the British, it was rather a reaffirmation of the ‘Victorian idea that Europeans were fit for sovereignty and others not’. Roosevelt (FDR) aimed at stabilizing, not undermining, colonialism.18 Moreover, both Churchill and FDR wilfully weakened the scope of document by accepting that the Soviet Union retains the 1939 Nazi–​Soviet pact boundaries.19 The document thus highlighted the ambiguity of the US administration’s anti-​colonial commitment.20 Moreover, many American officials believed in the idea of racial and cultural hierarchy and therefore never envisioned an early end to colonialism.21 Between the conclusion of the Atlantic Charter and the opening of the UNCIO, the US administration’s perspective on the right to self-​determination grew increasingly conservative.22 It bowed to pragmatic arguments about the wisdom of preserving empires.23 These considerations contributed to the ‘gradual bastardization’ 17 Erez Manela, The Wilsonian Moment (n 9); Cassese, Self-​Determination of Peoples (n 8) 33. 18 William Roger Louis, Imperialism at Bay: The United States and the Decolonization of the British Empire 1941–​1945 (OUP 1978) 4, 9. 19 Warren F Kimball, ‘Churchill, the Americans, and Self-​Determination’ in Arnold A Offner and Theodore A Wilson (eds), Victory in Europe 1945: From World War to Cold War (University Press of Kansas 2000) 213, 216. 20 David Ryan, ‘By Way of Introduction: The United States, Decolonization and the World System’ in David Ryan and Victor Pungong (eds), The United States and Decolonization: Power and Freedom (Palgrave-​MacMillan 2000), 3 (hereafter Ryan, ‘World System’); Richard H Immerman, Empire for Liberty:  A History of American Imperialism from Benjamin Franklin to Paul Wolfowitz (Princeton University Press 2010). 21 Marc Frey, ‘Visions of the Future: The United States and Colonialism in Southeast Asia, 1940–​ 1945’ (2003) 48 Amerikastudien 365, 367. 22 This movement grew stronger after FDR’s death. See Philip W Bell, ‘Colonialism as a Problem in American Foreign Policy’ (1952) 5 World Politics 86, 101 (hereafter Bell, ‘Colonialism as a Problem’). 23 John J Sbrega, ‘Determination versus Drift:  The Anglo-​American Debate over the Trusteeship Issue, 1941–​1945’ (1986) 55 Pacific Historical Review 256, 258.

430  Olivier Barsalou of the original concept of a comprehensive system of international trusteeship to promote independence.24 While the US government favoured a planned dissolution of European empires,25 the United Kingdom (UK) defended the idea of a self-​liquidating empire. However, this proposal masked the realities of an unequal empire. The picture of a unified, self-​liquidating empire had to be contrasted with the fact that in some parts of the British empire, notably Australia, Canada, and New Zealand, loyalists were making considerable efforts to strengthen the imperial link, as was the case with the dominion status. ‘Dominion was a characteristically ambiguous imperial invention that recognized various states of self-​government while managing to convey overtones of continuing subordination.’26 In some other parts of the empire, notably in Asia and Africa, relationships of domination between the empire and the local populations endured. The British Empire was unequally divided between civilized areas ripe for self-​government and immature and backward territories not deemed worthy of being granted any political concessions. Above all, the American government dreaded violent upheavals and revolutionary movements.27 Following John Stuart Mill,28 FDR believed in ‘positive nationalism’ as the best guarantee against the rise of authoritarian ideologies in colonies. Anti-​colonial nationalism had thus to be managed and stabilized in order to prevent Western European powers from crumbling alongside their empires. The control and management of the future post-​colonial peoples could be achieved through the implementation of a modernized conception of trusteeship, which would allow for the gradual integration of dependent peoples into the world system of sovereign states.29 With the support of the UN institutions, the US was fulfilling its responsibility as a post-​war power by helping colonial peoples in reforming their future countries and putting the final touches to the content of their independence and nationalisms.30 Soon after the conclusion of the Atlantic Conference, under the umbrella of the Advisory Committee on Postwar Foreign Policy the DoS created the Subcommittee 24 Neil Smith, American Empire: Roosevelt’s Geographer and the Prelude to Globalization (University of California Press 2003) (hereafter Smith, American Empire); John J Sbrega, ‘The Anticolonial Policies of Franklin D Roosevelt: A Reappraisal’ (1986) 101 Political Science Quarterly 65, 82. 25 Francis B Sayre, ‘Legal Problems Arising from the United Nations Trusteeship System’ (1948) 42 American Journal of International Law 263, 280. 26 AG Hopkins, ‘Rethinking Decolonization’ (2008) 200 Past & Present 211, 212 (hereafter Hopkins, ‘Rethinking Decolonization’). 27 Patrick J Hearden, Architects of Globalism:  Building a New World Order during World War II (University of Arkansas Press 2002), 93; Michael H Hunt, Ideology and U.S. Foreign Policy (with a new afterword) (Yale University Press 2009) ch 4 (hereafter Hunt, Ideology and U.S. Foreign Policy). 28 John Stuart Mill, ‘A Few Words on Non-​Intervention (1859)’ in John Stuart Mill, The Collected Works of John Stuart Mill, Volume XXI–​Essays on Equality, Law, and Education (University of Toronto Press 1984) 109–​24. 29 Ryan, ‘World System’ (n 21) 18. 30 Odd Arne Westad, The Global Cold War: Third World Interventions and the Making of Our Times (CUP 2005) 20.

The United States and the Post-War Illusion  431 on Political and Territorial Reconstruction.31 Among its tasks,32 the Subcommittee had to develop trusteeship proposals. For the first time, the US government discovered the potential magnitude of the colonial problems around the world and how poorly equipped it was to deal with these new issues. The first proposal that emerged from the DoS suggested that trusteeship could be framed as a promise of independence following a transitional period of tutelage. An International Trusteeship Agency was to be set up with important administrative and supervisory powers. However, DoS officials were already profoundly divided over the definition principles that were to guide US policies. For instance, Isaiah Bowman, the DoS chief geographer and close friend of FDR, suggested that the trusteeship proposal could be interpreted not only as a defence of ‘natural’ inequality ‘but as a nature-​authorized rationale for intensified exploitation of “backward” peoples for their own good’.33 In the summer of 1943, the Secretary of State Cordell Hull suggested in a radio address that it was the responsibility and purpose of the US to support the attainment of freedom by all peoples ‘worthy’ and ‘ready’ for it.34 It was the duty of his government to support dependent peoples who aspire to liberty.35 Hull nonetheless recognized that his statement begged the question of ‘how backward must the people be to be excluded from the discussion of their own rights; and how advanced must they be to become participants on some declared level?’.36 When Sumner Welles, then Under-​Secretary of State and close advisor of FDR, was asked by a puzzled Congressman how long it would take before trusteeship territories achieve independence, he replied more than a hundred years in the case of Congo and certainly more than a thousand years before Portuguese Timor became fit to govern itself.37 Hull was more concerned with maintaining Allied unity in the midst of the Second World War than in pursuing a vigorous anti-​colonial policy or defending any concept of self-​determination. In the fall of 1942, the Secretary of State sent 31 Subcommittees of the Advisory Committee on Post-​War Foreign Policy (no date, after the adoption of the Atlantic Charter) (Department of State, F.D. Roosevelt Library, Adolf A  Berle Papers, Box 54). 32 Among the nine fields of discussion identified by the Subcommittee, four were directly related to the issue of sovereignty and/​or national independence: the restoration of independent nations and re-​establishment of stable governments; boundary problems of independent nations; problems of dependent areas; and problems involved in the limitation of national sovereignty. 33 Smith, American Empire (n 25) 355. 34 ‘Radio Address of Secretary Hull (23 July 1942)—​Recent Official Statements of American Policy Regarding Dependent Territories’ (29 February 1944) (Records of the U.S. Delegation to the United Nations Conference on International Organization, 1944 –​1945, Harley Notter Files, Box 212, Record Group (RG) –​ 59). 35 ‘Radio Address of Secretary Hull, (12 September 1943)—​Recent Official Statements of American Policy Regarding Dependent Territories’ (29 February 1944) (Records of the U.S. Delegation to the United Nations Conference on International Organization, 1944-​1945, Harley Notter Files, Box 212, RG –​  59). 36 Smith, American Empire (n 25) 359. 37 ibid 356.

432  Olivier Barsalou to FDR a proposal in which he recommended the creation of a trusteeship system covering only the territories held under the League of Nations mandates system and those to be detached from the enemies’ territories. Upon the President’s approval of these recommendations, in 1944 a group of DoS officials drew up a ‘Draft Declaration by the United Nations on National Independence’.38 It represented the first concrete international proposal discussing the post-​war colonial question.39 It stated ‘that the independence of those nations which have been forcibly deprived of independence shall be restored, that opportunity to achieve independence for those peoples who aspire to independence shall be preserved, respected and made more effective’.40 Unsurprisingly, the declaration granted the US and the UK the power to preside over the advancement of these dependent peoples. They had ‘become charged with responsibilities for the future of colonial areas to cooperate fully with the peoples of such areas toward their becoming qualified for independent national status’. According to the draft declaration, it was incumbent upon all dependent peoples who genuinely aspired to autonomy ‘to exert themselves in every feasible way to prepare and equip themselves for independence—​to the end that they may, as soon as possible, be able to create, conduct and maintain, for, by and of themselves, efficient structures of stable self-​government based on sound principles of social and political morality’.41 It was the business of the ‘parent’ states to train and equip the colonial peoples for the responsibilities of self-​government. Therefore, according to Col Oliver Stanley, the British Secretary of State for the colonies, there ought to be a twofold test to evaluate the success of the ‘parent’ state’s policy. First, one has to evaluate the essential preliminary work accomplished by the trustee power. Second, and more importantly, there has to be a test of the success and efficiency of self-​government when it has been given.42 Several British officials even suggested replacing trusteeship by partnership because it was better suited to describe what the British envisioned for their colonies: a hierarchy of partnership—​from junior and senior to equal partnership—​within the Empire.43

38 ‘Proposed Declaration by the United Nations on National Independence (9 March 1943)’ (29 February 1944) (Records of the U.S. Delegation to the United Nations Conference on International Organization 1944 -​1945, Harley Notter Files, Box 212, RG–​59). 39 George Thullen, Problems of the Trusteeship System: A Study of Political Behavior in the United Nations (Droz 1964) 23–​24. 40 ‘Proposed Declaration by the United Nations on National Independence (9 March 1943)’ (n 38). 41 ibid. 42 ‘Col Stanley Talks on Colonies, by our Political Correspondent’ (undated, probably fall 1943) (Records of Various Inter-​and Intra-​Departmental Committees (1942–​1952), Inter-​Divisional Committee on Colonial Problems, Box 1, RG–​353). 43 ‘Proposal by W.W. Astor, M.P. for a United Nations Council and for Regional Councils to Assist Dependent Territories’ (12 February 1944)  (Records of Various Inter-​and Intra-​ Departmental Committees (1942–​1952), Inter-​Divisional Committee on Colonial Problems, Committee on Colonial and Trusteeship Problems, Box 3, RG–​353).

The United States and the Post-War Illusion  433 At the Dumbarton Oaks Conference held in the fall of 1944, the new US Secretary of State Edward Stettinius, his assistant Cordell Hull, and FDR met to establish and formalize the US trusteeship policy that would serve as guidelines for future diplomatic discussions on the subject.44 The ‘parent’ or ‘trustee’ state would be obligated to ‘guide’ and ‘develop’ colonial peoples ‘until they would be able, without danger to themselves and others, to discharge the responsibilities of government’.45 The document included a reference to the ‘political advancement of dependent peoples’ as a goal of trusteeship without referring to political independence.46 It also reaffirmed the UN’s intention ‘to assist in the development of the capacities of dependent peoples with a view to realization by them of reasonable aspirations’.47 These wartime discussions played a crucial role because they laid the foundations for the emerging right to self-​determination soon to be formalized in the UN Charter and served as a template in Washington for thinking about the decolonization.

III.  The San Francisco conference and the colonial question The UNCIO took place in San Francisco between 21 April and 26 June 1945. The US delegation succeeded in embedding in the Charter the idea of a gradual, managed, and orderly dismantling of European empires. The Charter admittedly promises self-​determination but only after a transitional period of tutelage and development during which dependent peoples would learn the propriety of self-​government as well as the responsibilities and duties attached to their orderly enjoyment. The Soviets criticized the US overemphasis on the idea of maintaining law and order.48 US government officials wanted to show, above all, that it was not the intention of the colonial powers to provoke or encourage revolt or revolution.49 In this regard, the UN Charter Articles 1(2), 2(1), and 4(1), which refer to self-​determination, remain extremely ambiguous. However, what did really matter for the US government were Chapter XI (Declaration regarding non-​self-​governing territories) and Chapter XII, which 44 Samuel I Rosenman and Edward Stettinius, ‘Development Policy toward Dependent Areas (Top Secret) (Edward Stettinius to Samuel I Rosenman)’ (12 September 1944) (Samuel I Rosenman Papers, F.D. Roosevelt Library, Box 7). 45 ibid. 46 Rosenman and Stettinius (n 44). 47 ibid (emphasis added). 48 Joseph John Sisco, The Soviet Attitude toward the Trusteeship System (University of Chicago 1950)  20–​21. 49 Charles W Taussig, ‘Arrangements for International Trusteeship:  A Commentary’ (30 April 1945) (Charles W Taussig Papers, F.D. Roosevelt Library, Box 77) (hereafter Taussig, ‘Arrangements for International Trusteeship’).

434  Olivier Barsalou set up the international trusteeship system. Above all, these chapters aimed at modernizing imperial practices by integrating the idea that empires should aim at transforming and furthering the betterment of those peoples deemed incapable of exercising the responsibilities attached to the enjoyment of the right to self-​determination. Described by a contemporary commentator as an ‘outgrowth of innumerable liberal ideas on colonial administration and native welfare’,50 the Declaration was a restatement and extension of the ‘sacred trust’ or civilizing mission stated in Article 22(1) of the League of Nations Covenant. US officials analogized the idea of international trusteeship with that found in municipal law or contemporary fiduciary theory of human rights, ‘just as a government or private institution acts as trustee for certain types of property or for legally incompetent persons’. According to John Foster Dulles, then a DoS legal advisor, ‘Chapter XI offered [dependent peoples] hope and encouragement that they could advance toward autonomy, self-​government, or independence in appropriate cases through ordinary processes and not through revolution’.51 Dulles and his colleagues feared political turmoil, instability, and, above all, the perils of revolution.52 Dependent people’s needs and demands were thus subjected to the imperatives of international peace and security at the UNCIO.53 The word ‘independence’ was finally excluded in the final draft of the Declaration. Self-​determination could then only be achieved with the help of an external benevolent authority.54 President Truman’s and subsequent administrations until the late 1960s pursued FDR’s policy of an orderly and gradual decolonization.55 British, French, and Dutch governments feared that the new UN trusteeship system would start meddling in internal affairs and policies of colonial powers.56 However, American representatives felt that a ‘proper and restricted’ right to petition was an essential contribution of the new trusteeship system to the

50 Huntington Gilchrist, ‘Colonial Questions at the San Francisco Conference’ (1945) 39 American Political Science Review 982, 985 (hereafter Gilchrist, ‘Colonial Questions’). 51 Alger Hiss, ‘Report of the First Meeting’ (8 January 1946)  (Alger Hiss Files, US Group on Trusteeship. Box 25, RG–​59). 52 On the fear of revolution in US foreign policy thinking, see Hunt, Ideology and US Foreign Policy (n 28) ch 6. 53 Gilchrist, ‘Colonial Questions’ (n 51) 982, 987. 54 William Bain, Between Anarchy and Society: Trusteeship and the Obligations of Power (OUP 2003). 55 Ebere Nwaubani, ‘The United States and the Liquidation of European Colonial Rule in Tropical Africa, 1941–​1963’ (2007) 43 Cahiers d’études africaines 505. 56 Charles W Taussig, ‘Summary of the Statement Made by Lord Cranborne before Committee 4, Commission II’ (14 May 1945) (Charles W Taussig Papers, F.D. Roosevelt Library, Box 66); Charles W Taussig, ‘3rd Meeting of Commission II, Technical Committee 4 (summary of the debate prepared by the U.S.  delegation’ (11 May 1945)  (Charles W Taussig Papers, F.D. Roosevelt Library) Box 66, US II/​4 Doc. 3); Records of the U.S. Delegation to the United Nations Conference on International Organization, 1944–​1945, Harley Notter Files, ‘2nd Meeting of Commission II, Technical Committee 4: summary of the debate prepared by the US delegation’ (11 May 1945) Box 203, US II/​4 Doc. 3, RG–​ 59). The Dutch doubted the usefulness of such a procedure with respect to advanced dependent territories. They thought that the superimposition of international control would be resented by the native peoples.

The United States and the Post-War Illusion  435 improvement of the dependent territories. ‘Properly safeguarded and conducted’ inquiries by responsible agencies could make a real contribution to world order and the ‘orderly progress’ of colonial peoples.57 ‘This was the only means by which the voice of the inhabitants of the trust territories may be heard,’58 and yet, they were deemed to be highly disruptive as well. Such procedures ‘would have the effect of quieting trouble’ while maintaining existing power structures. This idea, albeit summary, was in a way the precursor of how the US government came to conceive of the right to internal self-​determination two decades later. An orderly and rational decolonization process was also aimed at protecting dependent peoples against themselves.59 European empires and the American government had ‘to safeguard the dependent peoples against local nationalist oligarchies which may interfere with a rational and democratic exercise of self-​ government’. Dependent peoples had to earn their right to self-​government. The requirements for self-​government had a disciplinary tone. ‘There is a reciprocal and equally important duty of dependent peoples to fit themselves for self-​government and to justify by their exertion the efforts that will be made on their behalf. Until and unless they show themselves worthy of self-​government or independence they are not entitled to demand or attain it’.60 This could take different forms according ‘to the varying circumstances of each territory’.61 Any right-​based conception of self-​determination had to be avoided for ‘the principle of self-​determination’ in any form would be to invite trouble.62 Harley Notter, an influent US legal advisor, rejected as well any reference to the right to self-​determination as a goal of the trusteeship system. He feared that self-​ determination could be used by the Soviets as an attempt to drive out a definition of the right. This would have direct effects on the legal nature and the legal obligations deriving from the trusteeship system. Leo Pasvolsky an American legal advisor and, according to some, ‘the foremost author of the U.N. charter’,63 argued that the main difficulty caused by a right-​based conception of self-​determination resided precisely in the usage of the word ‘right’ to qualify the nature of self-​determination.

57 Charles W Taussig, ‘Minutes of the Preliminary Consultations on Trusteeship by Representatives of the Five Powers, 3rd meeting’ (5 May 1945) (Charles W Taussig Papers, F.D. Roosevelt Library). 58 ibid. 59 Jessica Lynne Pearson, ‘Defending Empire at the United Nations:  The Politics of International Colonial Oversight in the Era of Decolonisation’ (2017) 45 Journal of Imperial and Commonwealth History 525–​49. 60 Taussig, ‘Arrangements for International Trusteeship: A Commentary’ (n 50). 61 ‘Proposed Working Paper for Chapter on Dependent Territories and Arrangements for International Trusteeship’ (11 May 1945)  (Records of the U.S. Delegation to the United Nations Conference on International Organization, 1944–​1945, Harley Notter Files Box 198, RG–​59). 62 ‘UNCIO—​Meeting of the United States Delegation’ (1 June 1945, morning) (Records of the U.S. Delegation to the United Nations Conference on International Organization, 1944–​1945, Harley Notter Files, Box 192, RG–​59). 63 ‘Interview with Stephen Schlesinger’ (transcript) (CNN, Diplomatic License, aired 24 December 2004) http://​transcripts.cnn.com/​TRANSCRIPTS/​0412/​24/​i_​dl.01.html accessed 7 December  2018.

436  Olivier Barsalou For this reason, the American delegation chose to resolve the issue by using the word ‘principle’.64 The Soviet Union was also a reluctant anti-​imperialist. In San Francisco, Soviet delegates often appeared surprisingly willing to compromise on the phraseology itself. For example, the phrase ‘wishes of the people’ appeared to be an acceptable alternative to ‘self-​determination’ for the Russian delegate. Also, the Soviet representative, Novikov, recognized that the application of the principle (!) depended on the local conditions and that it could be expressed in a variety of forms, such as through the parliament. In response to Lord Cranborne’s question of who would have the authority to make such a decision, Novikov pointed out ‘that the qualifying phrase “as may be provided in the trusteeship arrangements” remained in the paragraph, and that this would obviously mean the administering power’.65 In other words, the Soviet Union agreed, alongside the US and the colonial powers, to grant administering states powers to determine whether a dependent people was fit or not for self-​government. In addition, during the 7th Five Power meeting, the Soviet delegate Sobolev concurred with Commander Stassen, the American representative, who had suggested that there were some territories that would never achieve independence because they were ‘small and weak and incapable of it’.66 This raised serious doubts as to the reality of the Soviet commitment to liberating colonial peoples. And, as Taussig astutely pointed out in May 1945 (two weeks earlier) in a conversation with his British counterpart, AH Poynton, the representative of the Colonial Office at the UN Conference, ‘the Russians would like to have a battle, and would even like to lose the battle in order that they could be in the position of putting before the world the idea of independence and having the United States and the United Kingdom throw it out’.67 The Committee II/​4 ended its work on 19 June 1945, six days before the closing of the UNCIO.68 Despite several diplomatic successes, the members of the American delegation knew that, from the liberal point of view, the trusteeship section of the Charter was one of its weakest parts and that it would be carefully scrutinized and caustically criticized. In fact, like the Secretary of Interior Ickes, several DoS 64 ‘UNCIO—​Meeting of the United States Delegation’ (29 May 1945) (Records of the U.S. Delegation to the United Nations Conference on International Organization, 1944–​1945, Harley Notter Files, Box 194, RG–​59). 65 Charles W Taussig, ‘Minutes of the Preliminary Consultations on Trusteeship by Representatives of the Five Powers, 8th meeting’ (1 June 1945)  (Charles W Taussig Papers, F.D. Roosevelt Library, Box 66). 66 Charles W Taussig, ‘Minutes of the Preliminary Consultations on Trusteeship by Representatives of the Five Powers, 7th meeting’ (29 May 1945) (Charles W Taussig Papers, F.D. Roosevelt Library, Box 66). 67 Charles W Taussig, ‘Memorandum of Conversation with A.H. Poynton, Colonial Office, London, and representative of the Colonial Office at the United Nations Conference’ (13 May 1945) (Charles W Taussig Papers, F.D. Roosevelt Library, Box 77). 68 ‘UNCIO –​Meeting of the United States Delegation’ (19 June 1945) (Records of the U.S. Delegation to the United Nations Conference on International Organization, 1944–​1945, Harley Notter Files, Box 192, RG–​59).

The United States and the Post-War Illusion  437 officials quietly thought that the trusteeship system was simply window dressing for dependent peoples and anti-​colonial movements. The Assistant to the Secretary of State felt that the concluding paragraphs should face squarely up to the fact that the Chapter was a compromise between ‘annexationist and imperialist influences on the one hand, and humanitarian impulses on the other, and that one can only hope that the establishment of the system will, in and of itself, permit the development of something closer to the historical aspirations of the nation’.69 Since colonies would come under the trusteeship system following the voluntary offer of the colonial powers, it was safe to assume that ‘the proposed trusteeship system will have little, if any, significance to the colonial world’.70 This is more or less the conclusion that can be deciphered from the intervention of the Iraqi representative on the Second Commission, Fadhil Al-​Jamali. During the plenary session of the Commission on 21 June 1945, he asked Commander Stassen and Peter Fraser, the Prime Minister of New Zealand (1940–​1949) and Chair of Committee II/​4, four questions. The first had to do with the fact that the new trusteeship system didn’t confer the same rights and guarantees to the territories now held under mandate that they had under the League of Nations. Al-​Jamali also wondered why the new system contained no assurance that the wishes of the people of the areas to be included in the trusteeship system will be taken into account. He also interrogated the American and New Zealand representatives on the reasons why there was no specific regulation (sunset clause) regarding the termination of trusteeship agreements. Finally, he asked why the peoples of future trusteeship areas were not given a better chance to have their grievances heard by the future Trusteeship Council. Although Stassen and Fraser didn’t answer back, these questions implicitly suggested that the new trusteeship system would replicate past imperial trusteeship practices.71 The colonial system was thus improved without disturbing existing colonial relationships.72 Indeed, US legal advisors had anticipated the colonial powers’ reluctance to place their colonial holdings under international control ‘unless the moral pressure of world public opinion becomes so strong as to induce it. In reality, therefore, the proposed trusteeship system had little, if any, significance to the colonial world’.73 That was also the opinion of Field Marshall Jan Smuts of South Africa. Smuts stated that the advent of trusteeship didn’t signal the abolition of the colonial system. To the contrary, he believed that the new system was designed to help lift up the standards of colonial administration and improve the relationship between 69 Charles W Taussig, ‘Archibald MacLeish, Assistant Secretary of State for Public and Cultural Relations, to Isiah Bowman’ (19 June 1945) (Charles W Taussig Papers, F.D. Roosevelt Library, Box 66). 70 Taussig, ‘Arrangements for International Trusteeship: A Commentary’ (n 50). 71 Charles W Taussig, ‘Third Meeting of Commission II: summary of debates prepared by the U.S. Delegation’, (21 June 1945) (Charles W Taussig Papers, F.D. Roosevelt Library, Box 67, US II/​Doc 4). 72 Charles W Taussig, ‘Summary Analysis of the Draft Proposal on Trusteeship’, (no date, probably spring 1945) (Charles W Taussig Papers, F.D. Roosevelt Library, Box 67). 73 ibid.

438  Olivier Barsalou metropolitan power and dependent territories.74 Above all, the renovation of the institutions’ trusteeship and colonialism at San Francisco reinforced the idea that the US had succeeded in embedding in the text of the Charter the idea of earned self-​determination, which involved the gradual, managed, and orderly acquisition of self-​government, even independence, after a transitional period of tutelage. These early discussions and debates are crucial for our story. They cast the legal framework and vocabularies upon which legal claims to self-​determination were made in the following years and decades. As positive international law, the right to self-​determination ironically embodied a justification for maintaining existing imperial structures. In a sense, self-​determination as a ‘right’ could not hardly be considered as the engine of the decolonization. However, as a political and moral claim, it grew to become a powerful force and justification for dismantling empires, an idea to be tamed.

IV.  Accommodating empires: the domestication of the right to self-​determination The problem then for the faltering empires and the US was to channel anti-​ colonial forces and to domesticate the right to self-​determination by subjecting it to higher principles or considerations such as the stability of the sovereign states system or the defence of human rights. They sought to transform the right to self-​ determination—​which originally implied a right to decolonization in the minds of colonial and American officials—​into an anti-​revolutionary right to internal self-​determination—​implying a right to democratic participation within pre-​ determined sovereign boundaries. The road to a tamed or domesticated version of self-​determination had yet to be achieved by imperial powers and the US. With the emergence of Afro-​Asian and third-​world solidarities in the background of the Indian (1947) and Cuban (1959) independences and the Algerian and Vietnamese wars for independence, anti-​colonial claims for independence and self-​determination gained traction and coalesced in the UN 1960 Declaration on the Granting of Independence to Colonial Countries and Peoples.75 Adopted by the UNGA without dissenting votes,76 the document repudiated imperial pretences to dominate colonial peoples by virtue of the benefits they claimed to bring, their promises of emancipation by teaching, for example, subjugated peoples how to responsibly enjoy their right to 74 Charles W Taussig, ‘Third Meeting of Commission II: summary of debates prepared by the U.S. Delegation’ (n 71). 75 ‘Declaration on the Granting of Independence to Colonial Countries and Peoples’, United Nations General Assembly Resolution 1514 (XV) (14 December 1960). 76 Nine countries abstained:  Australia, Belgium, Dominican Republic, France, Portugal, Spain, Union of South Africa, the UK, and the US.

The United States and the Post-War Illusion  439 self-​determination in a way that promotes the greater good of the international community.77 The Declaration stated that the ‘inadequacy of political, economic, social or educational preparedness should never serve as a pretext for delaying independence’. It further required that ‘immediate steps’ be taken ‘to transfer all powers to the peoples of those [Trust and Non-​Self-​Governing], without any condition or reservations’ in accordance with the ‘freely expressed will and desire’ of the peoples. The resolution repudiated the inter-​imperial consensus reached in 1945 in San Francisco. The radicalism of Resolution 1514 was, however, soon tempered by Resolution 1541 adopted the following day on 15 December 1960. Formally, Resolution 1541, titled ‘Principles which should guide Members in determining whether or not an obligation exists to transmit the information called for under Article 73e of the Charter’ developed a list of standards and benchmarks to assess whether a particular territory fell within the ambit of the ‘Declaration regarding non-​self-​ governing territories’ (UN Charter, ch XI). While the authors of the Resolution most certainly wished to pressurize colonial powers into divulging more information on how they governed their colonies, the text of the Resolution more or less reactivated problems, principles, and ideas that had been discussed at length in San Francisco in 1945 without adding much. More importantly for the current chapter, the Resolution identified potential situations in which ‘a Non-​Self-​Governing Territory can be said to have reached a full measure of self-​government’. There were three situations: i) the emergence of sovereign independent State; ii) a free association with an independent State; iii) or the integration with an independent state. It is easy to infer from these options that the right to self-​determination could be achieved within the pre-​existing imperial boundaries, albeit under a different qualification. Both resolutions more or less explicitly hinted at the importance of maintaining (or, at least, trying to maintain) the integrity of boundaries—​imperial or post-​ colonial. For both the post-​colonial states and the crumbling empires, the right to self-​determination harboured the potential for further political fragmentations that could threaten, on the one hand, the newly acquired fragile post-​colonial sovereignty, and on the other hand, the stability of a UN Charter-​based international system premised on the renovation of imperial powers.78 In other words, the legitimacy of both the post-​colonial states and the faltering empires rested on a commitment to the right to self-​determination as an imperial promise and as the

77 Report of the Commission of Rapporteurs (Aaland Islands Case) presented to the League of Nations Council, League of Nations Doc. B.7.21/​68/​106 (1921) [‘To concede to minorities, either of language or religion, or to any fractions of a population the right of withdrawing from the community to which they belong, because it is their wish or their good pleasure, would be to destroy order and stability within States and to inaugurate anarchy in international life; it would be to uphold a theory incompatible with the very idea of the State as a territorial and political unity’]. 78 Jörg Fish, The Right of Self-​Determination of Peoples: The Domestication of an Illusion (CUP 2015).

440  Olivier Barsalou normative foundation of the post-​colonial states. And in both cases, the integrity of their respective political structures rested on their ability to tame and domesticate the disruptive aspects of the right to self-​determination without denying their prior commitments to the idea. Common Article 1 to the 1966 International Covenant to Civil and Political Rights and International Covenant on Economic, Social, and Cultural Rights somehow neutralized the revolutionary nature of the right to self-​determination by turning it into a human right. This was a crucial turn of events and, yet, an unsurprising one. From a legal standpoint, the UN human rights regime that had been developing over the previous two decades and over which the American government had had a major influence.79 The regime emphasized a conception of human rights that identifies the state as both the main source of human rights violations and as the main guarantor of those same rights.80 As such, human rights and, in the present case, the right to self-​determination, became a social justification of the state.81 Principle Five (The principle of equal rights and self-​determination of peoples) of the 1970 Declaration on Principles of International Law concerning Friendly Relations and Co-​operation among States in accordance with the Charter of the United Nations further reinforces that idea when it declares that ‘the establishment of a sovereign and independent State, the free association or integration with an independent State or the emergence into any other political status freely determined by a people constitute modes of implementing the right of self-​ determination by that people’. The wording of the Principle Five emphasizes, ‘as the critical issue, the methods of reaching the decision and not the result’.82 The idea here is not to ignore the vast and complex debates over the definition and meaning the right to self-​determination that took place both within and outside the UN system between 1945 and 1975 and which involved a multitude of actors operating at various levels—​local, regional, national, continental, universal—​in a wide array of contexts, and embodying a variety of political projects. This chapter rather suggests that the argumentative structure developed by the American government in San Francisco in 1945 survived the decolonization era. The right to self-​determination, construed in 1945 as a conditional right to be achieved when a requisite level of political development had been attained, was revamped into a conditional right authorizing self-​government only when the sovereign states had violated its human rights obligations. However, in both 79 Olivier Barsalou, ‘The Cold War and the Rise of an American Conception of Human Rights, 1945–​ 1948’ in Pamela Slotte and Miia Halme-​Tuomisaari (eds), Revisiting the Origins of Human Rights (CUP 2015) 362–​80. 80 Hannah Arendt, Imperialism: Part Two of the Origins of Totalitarianism (New York 1968) ch 5; Frédéric Mégret, ‘L’étatisme spécifique du droit international’ (2011) 24 Revue québécoise de droit international 105, 125–​27. 81 Samuel Moyn, ‘The Universal Declaration of Human Rights of 1948 in the History of Cosmopolitanism’ (2014) 40 Critical Inquiry 377–​78. 82 Thürer and Burri, ‘Self-​Determination’ (n 8) para 11.

The United States and the Post-War Illusion  441 contexts—​1945 or 1975—​the right to self-​determination remained subjected to the vagaries and arbitrariness of a pre-​existing sovereignties whose authority and legitimacy rested essentially on their capacities to fulfil their trusteeship and fiduciary duties towards the peoples roaming their realms. In other words, the right to self-​determination was an apology for empires in 1945 and became one for states in 1975. The battle for decolonization saw ‘the tacit submersion of self-​determination in state-​determination’83 and the slow withering away of the human rights ideas that it carried with it.84

V.  Conclusion Between 1945 and 1975, self-​determination emerged as a right compatible with the transformation, not the elimination, of non-​self-​governing peoples, whether in imperial or post-​colonial contexts. Often equated with a right to secession and, ultimately, to independent statehood,85 US and European colonial officials after 1945 slowly started emphasizing the internal aspects of the right to self-​determination. As this chapter argues, turning the right to self-​determination into an apology for empire or into a democratic and individual right was a strategic divide-​and-​rule choice86 aimed at limiting its exercise to specific contexts and interpretations.87 This was clearly visible in Europe where many ‘imperialists’ started repudiating the idea of colonialism because of the atrocious European record in Africa and Asia.88 For these critics of European (and American) imperialism, the colonial project became an unambiguously pejorative term. It was an unmasked and immoral form of domination devoid of any humanitarian character. As a result, European and American officials began to embrace the novel, but imprecise, vocabulary of ‘association’, ‘interdependence’, ‘partnership’, ‘union’, ‘integration’, and ‘federation’89 83 Uriel Abulof, ‘The Confused Compass: From Self-​Determination to State-​Determination’ (2015) 14 Ethnopolitics 488–​97. 84 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. 85 Alexandra Xanthaki, ‘The right to self-​determination: meaning and scope’ in Nazila Ghanea and Alexandra Xanthaki (eds), Minorities, Peoples and Self-​Determination:  Essays in Honour of Patrick Thornberry (Martinus Nijhoff 2005) 22. 86 Bradley R Simpson, ‘Self-​Determination, Human Rights, and the End of Empire in the 1970s’ (2013) 4 Humanity: International Journal of Human Rights, Humanitarianism, & Development 239, 240; Kalana Senaratne, ‘Internal Self-​Determination in International Law:  A Critical Third-​World Perspective’ (2013) 3 Asian Journal of International Law 305, 331. 87 Jure Vidmar, ‘The Right to Self-​Determination and Multiparty Democracy: Two Sides of the Same Coin?’ (2010) 10 Human Rights Law Review 239. 88 For example, see Fabian Klose, Human Rights in the Shadow of Colonial Violence: The Wars of Independence in Kenya and Algeria (University of Pennsylvania Press 2013); Jan Eckel, ‘Human Rights and Decolonization: New Perspectives and Open Questions’ (2010) 1 Humanity 111. 89 Michael Collins, ‘Decolonisation and the “Federal Moment”’ (2013) 24 Diplomacy & Statecraft 21–​40; Hopkins, ‘Rethinking Decolonization’ (n 27); Ronald Hyam, ‘The Geopolitical Origins of the

442  Olivier Barsalou to describe the relationship between Europe and its colonial subjects. Many post-​ colonial thinkers and leaders also contributed to those debates and sought to imagine self-​determination without state sovereignty.90 However, from the perspective of the right to self-​determination, this bland terminology rebranded imperial domination and trusteeship by recasting them as ordinary political links between metropolitan powers and their dependent territories.91 French, British, and Dutch colonial relationships developed and discussed post-​imperial constitutional models that borrowed from American federal empire in which the states enjoy some measures of self-​government.92 The right to internal self-​determination transformed a potentially revolutionary idea into one compatible with the survival of empires and the sustainability of the sovereign states from the rubbles of empires. The idea of self-​determination that emerged in 1945 in San Francisco thus rested on this never-​fulfilled yet lasting imperial promise to reform and transform dependent peoples into international legal subjects able to exercise their right to self-​government responsibly in an ever-​increasing interdependent world.93 More particularly, the American government sought to develop a conception of the right to self-​determination that could accommodate the interests of colonial powers (and its own) in their residual empire with that of providing colonial peoples with some political horizon. Not without irony, the decolonization thus saw ‘the strange demise of self-​determination’.94

Central African Federation:  Britain, Rhodesia and South Africa, 1948–​1953’ (1987) 30 Historical Journal 145. 90 Gary Wilder, Freedom Time:  Negritude, Decolonization, and the Future of the World (Duke University Press 2015); Frederick Cooper, Citizenship between Empire and Nation: Remaking France and French Africa, 1945–​1960 (Princeton University Press 2014). 91 Henri Brunschwig, ‘Colonisation-​décolonisation:  Essai sur le vocabulaire usuel de la politique coloniale’ (1960) 1 Cahiers d’études africaines 44, 52. 92 Bell, ‘Colonialism as a Problem’ (n 23) 93. 93 I  borrowed these ideas from Nikolas Rose, Powers of Freedom:  Reframing Political Thought (CUP 1999). 94 Uriel Abulof, ‘We the Peoples? The Strange Demise of Self-​Determination’ (2016) 22 European Journal of International Relations 536–​65.

Epilogue What’s Law Got to Do with It? Recollections and Impressions Martti Koskenniemi

I. The chapters in this volume give a many-​sided, deep, and wide image of the legal aspects of the second decolonization, a time that many of us still carry in living memory. The generation that came to adulthood in the late 1960s through the mid-​1970s is approaching the end of professional careers, taking early retirement, others working, especially academics, perhaps still some number of years. That generation, to which I of course belong, grew up as professional men and women surrounded by confrontations about conflicts that mostly took place in what we learned to call the third world over self-​determination, wars of liberation, and the New International Economic Order (NIEO), Biafra, Vietnam, the Six-​Day War, and the first oil crisis; often, we took sides, sometimes emphatically. Although many of these events took place far away from where we lived and worked, they were of great interest, and wholly absorbed some of us. These were politicized years, even hyper-​political years—​good training ground for later careers. From that perspective—​half-​personal, half-​professional—​I reflect on what the editors of this book have chosen to call the ‘battle’ (although I resist the military tone of the metaphor). At the time, public international law was a fringe discipline at a European law faculty such as mine. Those who chose to specialize in it often did so to avoid the dry-​ as-​dust practices in civil law, shunning careers in courts, administration, or private business. Many had an inclination towards the humanities; political activism was a must. Our minds were reaching out to matters international, and our bodies found access to foreign offices, development agencies, non-​governmental institutions. To the extent that we came to mainstream practice in public international law, typically with a foreign ministry or an intergovernmental organization, we found that the substance of our work had little to do with questions bearing upon development or even the third world in any specific way. There were questions of boundary delimitation, of course, of treaty interpretation and State succession—​and some of those are discussed in these chapters. But these questions were treated as being Martti Koskenniemi, Epilogue In: The Battle for International Law: South-North Perspectives on the Decolonization Era. Edited by: Jochen von Bernstorff and Philipp Dann, Oxford University Press (2019). © The Several Contributors. DOI: 10.1093/oso/9780198849636.003.0021

444  Martti Koskenniemi standard in the practice of international law—​concerned with access to and consequences of formal statehood and the public law aspects of diplomacy, not by rules designed to incorporate the concerns of the developing world. Indeed, ‘development’ did not seem to be an international law concern. Some third-​world-​related issues were treated via reference to classical doctrines about legal sources. Were new states bound by old customary law? What was the legal value of United Nations (UN) General Assembly resolutions? I will expound on those questions later, but first I note that many of us in the 1970s saw decolonization as something that had already passed (a 1960s issue, the independence process) or belonged rather more to international ‘politics’ than law. The core curriculum at European and American law schools had to do with what Germans called ‘external public law’ and the Americans ‘foreign relations law’—​the legal aspects of the country’s foreign relations.1 I have elsewhere noted that the textbook of my university course in Finland in the mid-​1970s was Erik Castrén’s Finland’s International Law (in Finnish), which was published in 1959.2 The book began with a chapter on general principles and legal subjects, but went rapidly onwards to discuss the treaties delimiting Finnish maritime and land territory and the position of the individual. Then followed sections of foreign policy decision-​making and Finland’s treaty relations and representation in international institutions, State responsibility (of Finland), dispute settlement, sanctions, and many chapters on the laws of war. Although Castrén was an active internationalist, later a member of the International Law Commission (ILC), words such as ‘development’ or ‘decolonization’ made no appearance in the book. Because that work was a little outdated in the 1970s, it was supplemented by the thick volume United Nations by Bengt Broms that discussed the different UN institutions and principal Charter provisions, giving a historical overview of their development (the last edition, in English, 1990).3 The impression received by students, strengthened later by professional orientations of diplomacy, was that there were two kinds of international law: on the one hand, the network of mostly bilateral relations, governed by sovereignty and treaty law as well as issues of domestic constitutional law bearing upon foreign relations, and on the other, the newer and much more ‘political’ law of the UN and its specialized agencies that did have a lot to do with problems emerging from decolonization and development. The seriously formalist spirit of the former contrasted with the invitation to operate with large ideologically tinged principles and objectives under the latter; conservatism and social-​democracy transposed into orientations to international law. Awareness of that duality gave a good introduction to work 1 A  hugely important discussion of the non-​international aspect of international law today in Anthea Roberts, Is International Law International? (OUP 2017). 2 Erik Castrén, Suomen kansainvälinen oikeus (WSOY 1959). 3 Bengt Broms, Yhdistyneet Kansakunnat (WSOY 1968), updated English version United Nations (Suomalainen tiedeakatemia 1990).

What’s Law Got to Do with It?  445 undertaken in the legal department of the Ministry for Foreign Affairs when I entered in 1978. I do not remember that the public international law section would have treated any item concerned with ‘development’—​with the significant exception of the Third UN Conference on the Law of the Sea (1974–​1982), which did absorb lion’s share of the section’s UN-​related activities. Already at the time (and thereafter), the department on development cooperation had its own lawyers, specializing in bilateral cooperation agreements and coordination within the Organisation for Economic Cooperation and Development and later the European Union. We rarely met with them and had only the vaguest idea of what they were doing. This is not, of course, to say that the international law practices of the last quarter of the twentieth century would have been oblivious to the ‘battle’. But they tended to channel it onto the relatively innocuous terrain of large principles about self-​determination, State succession, the treatment of alien property, highlighted in UN General Assembly’s declarations from the Decolonization resolution (UNGA Res 1514 (1960)), the Friendly Relations Declaration of 1970 (UNGA Res 2625 (1970)), and the Charter of Economic Rights and Duties of (UNGA res 3314 (1974)). International lawyers differed in their attitudes to these instruments. Many were concerned to integrate them as closely as possible to the traditional law. The second edition of DP O’Connell’s two-​volume textbook from 1970, for example, had no specific entry on ‘decolonization’ or ‘development’, but it discussed related themes at three points. Under ‘international action on foreign investment’ O’Connell observed that ‘underdeveloped countries’ right to fully develop their natural resources’ may have become customary law through UN resolutions that were nevertheless ‘so deliberately ambiguous as to smother rather than elucidate the legal procedures relating to expropriation’.4 Another section dealt with ‘UN action on colonialism’ through close reading of the trusteeship system and the actions of the Special Committee on Colonialism, and a third discussed State succession with an effort to suggest that ‘full compensation’ might help ‘balance’-​acquired rights with the independence concerns of new states.5 The discussion was neutral and technical, concentrating on relevant case-​law. In two out of those three themes the focus was on the UN. Nor did Ian Brownlie’s widely read Principles of Public International Law (in which I, for example, was examined twice in the course of my post-​graduate studies at the turn of the 1980s, once by Brownlie himself) take up ‘development’ or ‘decolonization’ in those terms, although related items were scattered throughout the chapters (Brownlie was very interested in Africa and already in the 1970s had begun to counsel a number of developing countries). Of self-​determination he had this to say:

4 5

David P O’Connell, International Law (2nd edn, Stevens & Sons 1970), vol 2, 792. See Craven, Chapter 4 this volume.

446  Martti Koskenniemi Until recently the majority of Western jurists assumed or asserted that the principle had no legal content, being an ill-​defined concept of policy and morality. Since 1945 developments in the United Nations, and the influence of Afro-​Asian and Communist opinion, have changed the position and some Western jurists now admit that self-​determination is a legal principle.6

Brownlie’s readiness to highlight the deeply political character of (at least this part of) international law was striking. But he limited his own treatment strictly to the conventional sources and case-​law, joining however that latter group of ‘Western jurists’ by including self-​determination into the corpus of international law, though its ‘present ramifications’ had yet to be worked out.7 And he stressed that ‘economic aid and technical assistance to under-​developed areas [had become] an object of the first importance in creating conditions of justice and stable foundations for peace’. He certainly went beyond most European lawyers when he wrote that ‘[t]‌here is probably also a collective duty of [UN] member states to take responsible action to create reasonable living standards both for their own peoples and for those of other states’.8 Though expressed in a traditional textbook fashion, Brownlie’s views were probably left from centre among Anglophone lawyers. Julius Stone, whose whole career had been about reading international law in its social and political context, took a much more combative attitude from the political right, attacking the third world’s use of General Assembly resolutions to advance its economic interests. The ‘Western States’, he wrote in 1977, cannot afford to submit supinely to the edicts of hostile majorities . . . What is in issue is no mere objection to particular resolutions, but the checking and arrest of the strategic design of certain States to use the General Assembly for imposing their arbitrary will on others. 9

Stone was especially outraged at the OPEC oil boycott of 1973, speculating that the 1974 Definition of Aggression might be read to cover this action and authorize self-​defence on the part of the West—​a position he shared with hawks in the United States (US) international law establishment, and which eerily resembles the US 6 Ian Brownlie, Principles of Public International Law (3rd edn, Clarendon 1979) 593–​94. I have assessed that book in relation to James Crawford’s more recent re-​edition in Martti Koskenniemi, ‘Brownlie’s Principles of Public International Law’ (2013) 83 British Yearbook of International Law 137. 7 Brownlie (n 6) 595. Brownlie noted that, together with racial discrimination, self-​determination had entered the law the ‘considerations of humanity’ that were embedded in the Charter, 29. This, of course, did not prevent self-​determination from being eventually ‘domesticated’ into a principle of democratic participation at home as discussed in Barsalou, Chapter 19 this volume. 8 Brownlie (n 6) 259. 9 Julius Stone, Conflict Through Consensus:  United Nations Approaches to Aggression (Hopkins 1977) 172.

What’s Law Got to Do with It?  447 position on cyber-​activities today. Critics followed Stone in castigating what they believed was inappropriate third-​world UN activism. Hence, the lively debate on the theory of the law-​making character of General Assembly resolutions. Did they have standing on their own? Or did they perhaps create ‘instant customary law’ as famously suggested by Bin Cheng?10 While some lawyers did endorse that proposition, others saw it as fundamentally incompatible with the voluntarist basis of the system. Many made serious efforts to classify UN acts by reference to their content, position in the UN system, or support they received from member states.11 A particularly strong attack not only on legislation through UN majorities but practically the whole of the third-​world legal agenda was Gaetano Arangio-​Ruiz’s dismissal of the Friendly Relations Declaration. The content of the seven principles, he wrote, purportedly drawn from the Charter was overly general, allowing anybody to read into them what they wish, and inappropriate as a legal statement of anything, ‘the most typical instance of the misuse of the “soft law” method’ that had ‘purely hortatory value’.12 The drafting process had been a failure from the outset, Arangio-​Ruiz argued. No group of experts had been engaged. The matter had not been allocated to the International Law Commission (ILC). Instead, it was produced by that ‘diplomacy of the law which is typical of the Sixth [legal] Committee and consists essentially in a search for drafting compromise at any price’. Owing to the ‘very intense and extended ideological contrast and confrontation’ (he meant both North-​ South and East-​West) it was ‘inevitable that the United Nations should conform, as a rule, to the lowest common denominator’.13 More fundamentally, however, he saw the declaration embody an altogether mistaken view of the nature of international law as ‘a kind of constitutional or public law of mankind’.14 It had been inspired by federalist and constitutionalist imaginings wholly inappropriate in a Cold War world. Arangio-​Ruiz had a conservative view of international law. Regional or political groupings or the agendas of the socialist and third-​world countries possessed no legal meaning. This was exactly contrary to the ‘functionalism’ that had been influentially propounded by Wolfgang Friedmann whose Changing Structure of International Law (1964) drew a clear line between Arangio-​Ruiz’s traditionalism and the more progressive or ‘social-​democratic’ ideas of a new generation ready to move from ‘co-​existence’ to ‘cooperation’ and saw an increasing amount of 10 Bin Cheng, ‘United Nations Resolutions on Outer Space: “Instant” International Customary Law?’ 1965 Indian Journal of International Law 23, 23–​48. 11 One widely cited work was Blaine Sloan, ‘The Binding Force of a ‘Recommendation’ by the General Assembly of the United Nations’ (1948) 25 British Yearbook of International Law 1 with the ensuing and its follow-​up piece Blaine Sloan, ‘General Assembly Resolutions Revisited (Forty Years Later)’ (1988) 58 British Yearbook of International Law 39. 12 Gaetano Arangio-​Ruiz, The United Nations Declaration on Friendly Relations and the System of the Sources of International Law (Sijthoff & Noordhoff 1979) 179, 93. 13 ibid 156, 186, 189. 14 ibid 155.

448  Martti Koskenniemi international legal practice take place within technical and economic institutions, especially under the auspices of the UN. It was not in the least surprising that the first generation of third-​world international lawyers—​such as PS Anand and TO Elias (Chapter 13 and Chapter 14, respectively)—​largely accepted that cooperative, functional, and universalist version of international law. That is understandable. How could they possibly have been granted access to the tables of multilateral diplomacy had they not adopted the form in use there, demonstrating that they were part of the club and knew their Oppenheim as well as anyone—​that they subscribed to the awkward dualism of simultaneous endorsement of sovereignty and anti-​sovereignty that was the hallmark of Western international law. In the mid-​ 1970s, they believed that they could score important victories by playing the game equally well, and of course eventually better than Western colleagues.15 In this respect, a different, even revolutionary legal voice could be heard in Mohammed Bedjaoui’s Hague lectures of 1976 on non-​alignment and international law, dedicated to Salvador Allende, ‘mort dans sa loi’.16 Bedjaoui excelled in using strong, politically coloured language of colonialism, neo-​colonialism, and imperialism and in attacking ‘the little syndicate’ of Western States. International law had been thoroughly committed to advancing their interests and ambitions; so far, only crumbs from the tables of the rich had fallen to the world’s poor—​a majority whose number, as he noted at the outset, had not ceased growing. Sovereignty that did not extend to economic relations was a mere ‘phantom sovereignty’.17 But Bedjaoui, too, cited Friedmann’s work to prophesize about a coming transformation and made the ultimately conservative point about the need to fit an anachronistic law to its new social and political environment.18 That would be the objective for which the third-​world countries would unite their powers within the non-​aligned movement. In the international legal academy Bedjaoui played a rather singular role; as an ILC Special Rapporteur on State succession and later a judge and president of the International Court of Justice he remained without significant support from his colleagues, who usually expressed sympathy towards his agenda but did not quite know what to think of his rhetoric or how to translate it into legal reform.19 In the French legal academy, his ideas were supported from two directions. Socialist lawyers associating themselves with the ‘Reims school’ under Charles Chaumont 15 See Chapter 13 and Chapter 14 this volume. 16 Mohammed Bedjaoui, ‘Non-​alignement et droit international’ (1976) 151 Recueil des Cours de l’Académie de Droit International de La Haye 337. 17 For a contextualisation of the ‘weak’ and ‘strong’, or ‘contributionist’ and ‘critical’ streams in the writings of African international lawyers Elias and Umozurike, see the contribution by Gevers in this volume. 18 For the conservatism of the argument about a transformation already ‘on the way’ that the law would have to follow and ‘reflect’, see my From Apology to Utopia. The Structure of International Legal Argument (reprint with a new Epilogue, Cambridge University Press 2005), 209–​18. 19 See Brunner Chapter 5 and Özsu Chapter 15, this volume.

What’s Law Got to Do with It?  449 subscribed to the third-​world legal agenda—​support for Palestine was especially important—​producing some of the best anti-​formalist writings on the role of dialectic and contradictions underlying international law.20 Chaumont’s 1970 Hague lectures that concentrated on method, as well as his other writings, were followed closely by a group of younger French academics who tried to imagine how international law could be turned into an instrument in the struggle for global justice.21 In and around the confines of the ‘Institute of the Law of Peace and Development’, set up in Nice in 1968 by the Doyen of the French international law community, René-​Jean Dupuy, a group of moderate francophone jurists sought to translate the themes of development into research agendas and technical legal initiatives. The institute also served as a rallying point for contacts with Maghreb where, alongside Bedjaoui, a growing generation of international lawyers were associating themselves with the third-​world agenda. As part of French legal culture, the Hague Academy of International Law did much to integrate younger lawyers from Africa and Asia into international law. But although Dupuy himself was keen to highlight the legal importance of development, his approach remained utterly conventional; like Friedmann, he saw around himself a confrontation between two types of law—​ ‘relational’ and ‘institutional’—​that embodied the values of positivist étatism and ‘sovereignty’ on the one hand, and a solidarity-​oriented ‘international community’ on the other.22 Law was above all doctrine and philosophy and the cause of development was to be advanced through elegant rhetorical performances around the themes of ‘universalism’, ‘community’, and, especially, ‘humanity’.23 None of this prevented Dupuy from subscribing to an utterly conventional view on the status of concession contracts in the (in)famous Texaco arbitration.24 Alongside Dupuy’s speculations, a francophone student at the time of the ‘battle’ would also have encountered texts such as Maurice Flory’s textbook on the international law of development; published by the Presses universitaires de France, it was compulsory reading, at least in Aix-​en-​Provence at the turn of the 1980s.25 At that time, the ‘international law of development’ was making themes of the NIEO 20 See Tourme-​ Jouannet Chapter  16, this volume. See also Martti Koskenniemi, ‘Regarding “Méthode d’analyse du droit international” by Charles Chaumont (1975-​I): Dialectics and International law’ (2015) Revue Belge de Droit International 270. 21 For example, Madjid Benchikh, Robert Charvin and Francine Demichel, Introduction critique au droit international (Presses Universitaires de Lyon 1986). A much less polemical (and less ‘left’) recent work from a different, but related, Franco-​Belgian tradition is Olivier Corten and others, Une introduction critique au droit international (Editions de l’Université de Bruxelles 2017). 22 René-​Jean Dupuy, ‘Communauté internationale et disparités de développement: Cours général de droit international public’ (1979) 165 Recueil des Cours de l’Académie de Droit International de La Haye 9. 23 See, for example, Florian Aumond, L’humanité dans l’oeuvre de René-​Jean Dupuy (Publications du laboratoire Angevin de Recherche sur les Actes Juridiques 2005); Evelyne Lagrange, ‘The Thoughts of René-​Jean Dupuy: Methodology or Poetry of International Law?’ (2011) 22 European Journal of International Law 425. 24 See Texaco Overseas Petroleum Co. v Libya 17 ILM 1 (1978) and Sornarajah Chapter 7, this volume . 25 Maurice Flory, Droit international du développement (Presses Universitaires de France 1977).

450  Martti Koskenniemi a growing part of the curriculum; it operated with a finalist or teleological conception of the law, highlighted the economic aspects of self-​determination, insisted on the permanent sovereignty over natural resources, and commented on the management of commodity agreements and regimes for technology transfer. Justifying preferential treatment within the General Agreement on Tariffs and Trade (GATT) regime and elsewhere in economic relations was a major objective. For example, the 1975 issue of the Annuaire française de droit international presented the UNGA resolutions leading up to the Declaration on the New International Economic Order expressly as a countermove against what it (already then!) called the ‘neo-​ liberal economic order’, highlighting in sympathetic tones the ‘interventionist’ and ‘compensatory’ aspects of the ‘droit dirigiste’ and making a parallel to late nineteenth century developments in domestic industrial law. This would mean giving up the expectation of equality and accepting positive discrimination in favour of developing states. The authors assumed that while there was large unanimity on the finalités of the NIEO, many of the means, such as the preferential treatment in trade, reform of investment law, the establishment of commodity stocks, and cartels, there were still matters of great controversy.26 A corresponding ‘international law of development’ failed to materialize in the anglophone world, perhaps because that energy was taken over by the ‘Law and Development’ movement in the US. Unlike the European (francophone) version, this did not think much of the diplomatic push in the UN or other international agencies but was more concerned with domestic law reform to buttress the modernization and competitiveness of the industries of developing states, diminish graft, and ‘strengthen the rights of property and ensure that contracts would be enforceable’.27 American law and development experts in the 1970s and 1980s operated with private law, supported international investment, and aimed to diminish state role in the economy. Looking backwards, as someone who spent many autumns in the 1980s sitting at meetings of the Sixth Committee of the UN General Assembly, it is striking to what extent all that, as well as the many development projects by international institutions (eg, the World Bank) was invisible to us. We really had no clue that, while multilateral diplomacy was churning out resolution after resolution, these private law oriented rule of law projects were gradually globalizing the ‘developmental state’ in most of the third world.28 Although the vocabulary of interdependence was everywhere, few in the international law world—​with

26 Dominique Carreau and others, ‘Chronique de Droit international économique’ (1975) 21 Annuaire Français de Droit International 647, 648–​50. 27 David M Trubek and Alvaro Santos, ‘Introduction: The Third Moment in Law and Development Theory and the Emergence of a New Critical Practice’ in David M Trubek and Alvaro Santos (eds), The New Law and Economic Development: A Critical Appraisal (CUP 2006) 6. 28 See Luis Eslava, Local Space, Global Life:  The Everyday Operation of International Law and Development (CUP 2015).

What’s Law Got to Do with It?  451 the exception of some number of left academics—​associated these two series of activities with the creation of a world as dependency theory described it.29

II. Only few international lawyers active today were present in the mid-​1970s at the time when it was still uncertain how the ‘battle’ would turn out. I came to the battle at a late stage within the Preparatory Committee for the UNCLOS in 1983, when the Montego Bay Convention had already been signed and President Reagan had decided that the US would not become a party, despite the concessions it had received during eight years of negotiations. Western countries concluded that Part XI of the Convention—​the seabed regime—​could not be implemented in its agreed form.30 Negotiations were initiated by the Secretary-​General to amend those newly concluded provisions and to set up the ‘pioneer investor system’ to guarantee priority to private investors and industries in the economic uses of the seabed. The diplomatic embrace of the neo-​liberal turn would affect all UN activities. One of the changes had to do with a shift in the quantitative and qualitative emphasis on human rights. A lot of ink has recently been poured on the role of human rights in decolonization and as an ideological frame for the neo-​liberal turn.31 From the keyhole of my (mostly UN-​related) experience, the introduction in international law of ‘human rights’ in the late-​1970s and 1980s was politically ambivalent. I had come to understand it as primarily as part of the western anti-​ communist agenda. The reading popular in the US and some parts of Western Europe of the Conference on Security and Cooperation in Europe (CSCE) as a human rights event seemed astonishing: wasn’t it supposed to be about the intangibility of European frontiers and only secondarily about economic cooperation and human rights (‘baskets 2 and 3’)? Although human rights embodied important Western values, their integration in diplomatic talk resonated hypocrisy and propaganda, especially as it was often accompanied by an effort to downgrade economic, social, and cultural rights as merely programmatic and unserious in the way of civil and political rights. The one-​sided concentration of the work of the UN Human Rights Commission on apartheid and the Palestine question was problematic, but in no way justified the outrage of the Western attacks on it.32 Not a decade

29 On these themes, see the contributions by Dann Chapter  12, Eslava Chapter  3, and Sinclair Chapter 11, this volume. 30 Together with a colleague from the Foreign Ministry (Marja Lehto, presently a member of the ILC) we have reflected on this development in ‘The Privilege of Universality: International Law, Economic Ideology and Seabed Resources’ (1996) 65 Nordic Journal of International Law 533. See further Ranganathan Chapter 1, this volume. 31 See the contribution by Hoffmann and Assy Chapter 8, this volume. 32 See further Giladi Chapter 9, this volume.

452  Martti Koskenniemi had passed from the end of the Vietnam war and the murder of Salvador Allende, and now the US was teaching morals to others! Since then, human rights have enjoyed their much commented-​upon ascent as the lingua franca of internationalism. Although they can clearly be used to support third-​world agendas (and have been so used), they do have a bias towards liberal ideas and Western policy goals. To me, Samuel Moyn’s controversial dissociation of human rights from decolonization rings true.33 In case the efforts to bring about a more just economic and political order in the 1970s are discussed through the metaphor of ‘battle’, it is hard to avoid the impression that on most questions, the G77 ‘lost’. It is true that apartheid is over (at least in South Africa) and legal opinion today converges on thinking of the 1966 judgment by the ICJ as a ‘mistake’.34 But there has been no advance on the question of occupied territories, for example, and the present terrorism obsession leaves little room to defend the cause of national liberation movements.35 (An informal division of work sometimes operated with respect to such, hotly political matters. When I was posted in the Finnish UN mission in New York in 1989–​1990, issues regarding South Africa and Namibia as well as the occupied territories were wholly allocated to political specialists. Nobody expected that a legal advisor would have anything useful to say about them.) As regards the international economic order, trade, investment, and technology, the developing world has had to content itself with quite little. The debate on generic drugs for AIDS/​HIV brought a partial ‘victory’ and in such other questions as climate change or marine genetic resources, for example, old battles are still being waged. One thing learned from the break-​up of the non-​aligned movement and the difficulties of the G77 to follow any consistent policy after the 1970s has to do with the heterogeneity of interests of the countries once joined at Bandung. It was only to be expected that their varying histories would point to different strategies of development—​what attitude to take to foreign investors or transnational companies, for example.36 The fall of real socialism in Europe deprived many of them of a key ally, and led them to seek support from other directions, with differing conditionalities. And they were themselves often split into rival political and ethnic groups, with elites tending to remain distant from the population. In the south no less than in the north, political leaders often have no interest to set themselves in opposition to the hegemonic powers. The most successful global versions of democracy and the rule of law have not supported the domestic or international distribution of resources in the way advocated in the 1970s. This is not to say that there would be no themes on which the views of the Global South would not converge. 33 By now, the secondary literature reacting on Samuel Moyn, The Last Utopia: Human Rights in History (Belknap Press of Harvard University Press 2010) is too wide to be reflected here, 34 See further the contribution by Venzke above, 35 See further the contribution by von Bernstorff above. 36 See Pahuja and Saunders Chapter 6, this volume.

What’s Law Got to Do with It?  453 There are many—​from preferential treatment in trade and financing to a suspicion about the International Criminal Court. But the alliances are today rarely underwritten by any larger ideological agenda. I end this set of personal reflections on the ‘battle’ with two remarks. First, surveying the landscape of public international law in the twenty-​first century, a surprisingly stable set of concerns and projects is visible. During the period I sat with the UN International Law Commission (2002–​2006), there was little on the agenda that would have had a redistributive orientation or would have otherwise been identified in terms of correcting the world’s injustices. The Commission in 2006 dealt with the sources of international law—​reservations, effect of armed conflict on treaties, unilateral acts and ‘fragmentation of international law’—​and the responsibility of international organizations, extradition, and a draft on transboundary aquifers. Whatever one thinks of the significance of the Commission’s work (even a priori important items such as ‘extradition’ or the pollution of groundwaters were treated by recommendatory provisions largely repeating what the law already was in non-​committal terms), it was based on no significant recognition of third world concerns or need to correct the world’s injustices. The members imagined themselves as impartial “experts” even as many of them steadily represented the positions of the domestic elites from which they were chosen. Reading the report from the 70th session in 2018, the picture is not very different—​treaty law is still highlighted, two items concern the protection of the environment, and two deal with the most traditional textbook topics—​jus cogens and the identification of customary law. State succession in respect of State responsibility does not seem to have raised among Asian-​African lawyers any concerns of principle.37 I have elsewhere discussed the difficulty generalists in international law have in trying operate in the narrow room left between technical governance and politics.38 Here I want to note the continued absence of ambition with regard to the themes of the ‘battle’. Most ‘progressive development’ has moved to functional, especially economic, organizations, the climate change process, international criminal law, and anti-​ terrorism to be debated among experts, among whom third-​world priorities are poorly represented.

37 See the latest ‘Report on Matters Relating to the Work of the International Law Commission at its Sixty-​Ninth Session’ by the Asian-​African Legal Consultative Organization (AALCO/​57/​TOKYO/​ 2018/​SD/​S1) 41-​44. The AALCO was established in the aftermath of Bandung in 1956 as a consultative ‘Committee’. It participates in the work of the ILC as an observer and provides an annual statement at its meetings. Its coordinating functions are listed in a ‘Statutes’ from 2004, available on the organization’s website at (accessed 4 February 2018). In the UN legal context, the Organization makes occasional presentation, usually endorsing in diplomatic terms a general position among its members (if such can be found) and paying regularly attention to the situation in the Palestinian Occupied Territories. 38 Martti Koskenniemi, ‘The Fate of Public International Law:  Between Technique and Politics’ (2007) 70 Modern Law Review 1.

454  Martti Koskenniemi My second point is that the 1970s does have staying power, however, if only of the unplanned kind. So much of the present world in terms of its culture, political and otherwise, its mores and its instinctive practices, come down from that under-​appreciated decade. Granted, the 1960s may have initiated that change. And granted, the 1970s, as they went along, may have transmitted to the terrible 1980s an already-​stale version of a global consciousness for which decolonization and development were absolutely imperative political projects. If this global cultural and political (and economic) transformation reached its peak in the 1990s, we are today suffering from its after-​effect—​a reactionary rejection of the cultural and political forms associated with it. The attacks on the international ‘elites’ in the global West, the expert systems, and a consciousness articulating itself through ‘human rights’ are also directed against whatever little victories the developing countries may have been able to secure. Nationalism, racism, xenophobia, and nostalgia for white male supremacy—​all current features of Europe and the US—​ target the multicultural, tolerant, feminist consensus among the elite, however thin or superficial. Development assistance and multilateral cooperation are under attack, as are migrants and refugees from ‘shithole countries’. The unstated wish of the reactionaries, overjoyed to be finally able to speak their mind, is to return to the time before the 1970s, a time before decolonization and the cultural and political change of which it was a part, a time when all kinds of aliens and activists, women, minorities and Jewish philanthropists did not tell them what to think or say. The battle may be over, but the war rages on.

Name Index Note: For the benefit of digital users, indexed terms that span two pages (e.g., 52– 53) may, on occasion, appear on only one of those pages. Abi-​Saab, George  1, 25–​26, 238, 298–​99, 341,  342–​43 Achebe, Chinua  385, 390, 391–​93, 396, 398, 400–​3 Ago, Roberto  138–​39 Alexandrovicz, Charles  25–​26, 298–​99, 302, 311,  330–​31 Alvarez, Alejandro  368–​69 Amin, Samir  97 Amrith, Sunil  298 Anand, Ram Prakash  25–​28, 125, 238, 297–​100, 311–​17, 342–​43,  447–​48 Anderson, Benedict  77 Anghie, Anthony  299, 331, 338, 394 Apostolidis, Charalambos  363–​64 Aquinas, Thomas  211–​12 Arangio-​Ruiz, Gaetano  446–​48 Austin, John  321 Balandier, Georges  327–​28 Baran, Paul  94–​95 Baxi, Upendra  25–​26, 307, 315 Bedjaoui, Mohamed  25–​26, 28, 103, 126, 132–​38, 143, 144–​45, 238–​39, 318–​19, 338, 341–​47, 348–​128, 353–​57, 363–​64,  448–​49 Beissinger, Mark  427–​28 van den Berge, Pierre L 323 Bin Cheng  303, 446–​47 Blishchenko, Igor  410–​12 Booysen, Hercules  225–​26 Bose, Sugata  310–​11 Brierly, James  336 Brownlie, Ian  445, 446 Burke, Roland  203–​5,  407–​8 Butler, William  424 Byrne, Jeffrey  347 Calafate, Pedro  212 Cardoso, Henrique  94 Cary, Joyce  398 Cassese, Antonio  408 Castrén, Erik  303, 444 Cavaglieri, Arrigo  114–​15 Césaire, Aimé  98 Chatterjee, Partha  4, 84–​85, 99

Chaumont, Charles  25–​26, 28, 63–​64, 358–​79,  448–​49 Chemillier-​Gendreau, Monique  359–​60,  373–​74 Chileshe, John  394 Chimni, Bhupinder S  43–​44, 48–​49, 297, 299, 305, 314 Cohen, Percy  335 Colin, Jean Pierre  359–​60, 373–​74 Connolly, Matthew  347 Conrad, Joseph  398 Corbett, P E  304, 309 Craven, Mathew  331 Curtin, Phillip  398 D’Amato, Anthony  303 de las Casas, Bartolomé  212–​13 de Montaigne, Michel  213 de Sepúlveda, Juan Ginés  213 de Vitroia, Francis  212–​13 Deng, Francis  25–​26,  27–​28 Descamps, P  110 Devi, Mahasweta  315 Dicey, A V  110 Diop, Cheikh Anta  397, 399–​400 dos Santos, Theotonio  93–​94 Dubow, Saul  222 Dugard 65 Dupuy, Rene-​Jean  189–​90, 192–​93,  448–​50 Dussel, Enrique  213 Eckel, Jan  203–​5 Elias, Taslim O  25–​26, 27–​28, 248, 318–​36, 337–​40, 342–​43, 384–​87, 388–​89, 391, 392, 396–​98, 399–​401, 402–​3,  447–​48 Escobar, Arturo  281 Evans-​Pritchard, Edward E  327–​28, 330, 336 Faletto, Enzo  93–​94 Falk, Richard  25–​26, 63–​64, 318–​19, 334, 335, 336, 339 Fanon, Franz  101–​2, 285–​86, 297, 383–​85, 394, 395, 397, 399–​402 Fisch, Jörg  405–​6, 407 Flory, Maurice  449–​50

456  NAME Index Fortes, Meyer  327–​28, 330, 336 Francioni, Francesco  128–​29 Franck, Thomas  261, 352–​53 Frank, Andre Gunder  92–​94 Friedmann, Wolfgang  318–​19, 333, 334, 335, 336,  447–​48 Furtado, Celso  85–​86, 94 Galbraith, John  107–​8 Gandhi, Mahatma  298 García-​Amador, Francisco  109–​10,  138–​39 Gathii, James Thuo  318–​19, 330, 336, 385, 387, 397 Giddens, Anthony  74 Gidel, Gauthier  109–​10 Ginsburg, George  65 Ginther, Konrad  25–​26 Gjessing, Gutorm  327 Gluckman, Max  327–​28 Golan, Galia  423 Gomez, Ambrosio  212–​13 Grosfoguel, Ramón  91–​92,  93–​94 Gross Ernest  239–​40 Grushkin, Dmitriy  413–​14 Hartley, Virginia  252 Heiss, Mary  421–​22 Henkin, Louis  65, 330, 337 Henrique Cardoso  92–​93 Hidayatullah, Mohammad  301, 303, 304, 308, 309, 310, 315 Higgins, Rosalyn  248 Hilferding, Rudolf  104 Hirt, Ferdinand  74 Hobbins A J  418, 419 Hobsbawm, Eric  323, 350–​52 Hobson, John  104 Hohfeld, Wesley  329 Hossain, Kamal  342–​43 Humphreys, John P  414 Jacobson, Harold  276 James, C L R  356–​57 Jenks, C Wilfred  303, 318–​19, 330, 334, 335, 336–​37 Jensen, Steven  203–​4,  407–​8 Jessup, Philip  307, 318–​19, 334–​35, 336 July, Robert  318–​19 Kanet, Roger  423 Kaplan, Morton  335 Katzenbach, Nicholas  335 Kearney, Richard D  134–​35 Keith, A Berriedale  114–​15, 310 Keith, K J  313 Kelsen, Hans  188–​89, 334

King, Jeff  418, 419 Klabbers, Jan  292 Klose, Fabian  203–​5 Koselleck, Reinhart Koskenniemi, Martti  35–​36, 305, 356–​57 Kuper, Adam  328–​29 Kuznets, Simon  83–​84 Lachs, Manfred  334 Lasswell, Harold  309 Lauterpacht, Elihu  298, 105–​6, 303, 336 Lauterpacht, Hersch  114–​15, 116, 184–​85, 202–​3 Lazarus, Richard  396–​97 Lehto, Marja  47 Lenin, Vladimir  298, 6–​7, 66, 94–​95, 104, 408, 409, 410, 411–​13 Lévy-​Bruhl, Lucien  323 Lillich, Richard  309 Lipson, Charles  108 Lissitzyn, Oliver  303–​4 Louis, Roger  81–​82 Loureiro, Sílvia  211 Luxemburg, Rosa  94–​95, 409 Macklem, Patrick  407, 408 Maine, Henry Sumner  324 Maliowski, Bronislaw  323, 324–​25, 326–​28 Manfred Lachs  303 Mariátegui, José Carlos  94–​95 Martínez, Ifigenia  85–​86 Marx, Karl  298, 368–​69 Massad, Joseph  7 Mazover, Mark  204–​5 McDougal, Myres  309, 335 McNair, Duncan McNair, Lord  114–​15, 303 Meek, C K  325–​26 Meissner, Boris  424–​25 Mero, George  35–​36, 47 Meron, Theodor  216 Mitchell, Timothy  7 Morgenthau, Henry  303 Morozov, Platon  25–​26 Mosler, Hermann  105–​6 Moyn, Samuel  201–​7, 452 Mphahlele, Es’kia  390, 396 Nandy, Ashis  70 Nehru, Jawaharlal  298 Ngugi wa Thiong’o (formerly James Ngugi)  173, 383–​84, 390, 392–​94, 396, 399, 400–​1 Nkrumah, Kwame  96, 102, 286 Noorani, Abdul  308 Normand, Roger  204–​5 Northrop, Filmer  303–​4, 313 Nussbaum, Arthur  184

name Index  457 Obregón, Liliana  79–​80 O’Connell, David  104–​6, 109–​10, 116, 118–​19,  120–​21 O’Connell, DP  445 Oda, Shigeru  303 Ogot, Bethwell A  398–​99 Pagden, Anthony  213 Pahuja, Sundhya  394, 408 Pandit, Vijaya Lakshmi  218–​19 Pechota, Vratislav  334 Pinto, Anibal  85–​86,  93–​94 Pollock, Frederick  338–​39 Pound, Nathan Roscoe  323, 329, 337 Puhuja, Sundhya  338 Quaye, Christopher  423 Quijano, Anibal  93–​94 Radcliffe-​Brown, Alfred  323, 327 Ranger, Terence  323, 398–​99 Richards, Audrey  327–​28 Rist, Gilbert  95–​96 Robinson, Ronald  81–​82 Rodney, Walter  97, 102, 397, 398–​400 Röling, Bert  25–​26,  63–​64 Rostow, Walt Whitman  83–​84, 350–​52 Roy, Guha  309, 315 Sakharov, Andrei  425 Salmon, Jean  359–​60 Sankara, Thomas  348–​49 Sauvy, Alfred  8–​9 von Savigny, Friedrich 110, 111 Scelle, George  28, 359–​60, 371–​72 Schachter, Oscar  335 Schapera, Isaac  327–​28 Schmitt, Carl  111, 113–​14 Schwarzenberger, Georg  303 Sen Gupta, Bhabani  423

Sieyès, Emmanuel Joseph (L’abbé Sieyès)  8–​9 Simpson, Brian  204–​5 Singer, Hans  85–​86 Sinha, Prakash  298–​99 Sjahrir, Sutan  12 Sornarajah, Muthucumaraswamy  342–​43 Soyinka, Wole  390 Starushenko, Gleb  25–​26, 413–​14, 418, 421 Stone, Julius  335, 446–​47 Mill, John Stuart  430 Sweezy, Paul  94–​95 Syatauw, J  25–​26,  298–​99 Tagore, Rabindranath  298 Terretta, Meredith  203–​4 Tesón, Fernando  405, 407 Toufayan, Mark  318 Tunkin, Grigory  303, 423–​24 Twinings, William  339 Umozurike, Umo  25–​26, 384–​85, 387–​89, 392–​94, 396–​97, 399–​400,  401–​3 Veeder, V V  184 Verdross, Alfred  184, 303 Wallerstein, Immanuel  97–​98 Wenzel, Jennifer  395 Westad, Odd Arne  11 Wilder, Gary  71–​72 Wilson, Woodrow  405, 406, 408 Woolf, Leonard  104 Wright, Quincy  301, 63–​64, 65–​66, 298–​99, 309 Yasuaki, Omuma  307 Young, Crawford  73–​74 Zaidi, Sarah  204–​5 Zedong, Mao  368–​69 Zimmern, Alfred  339

Subject Index Abi-​Saab, Georges  52, 53, 56, 58, 238 acquired rights colonial annexation of territory, and  112–​13 concession agreements, and  109 critique of doctrine of  103, 122–​23 decolonization, and  116 economic and political dimensions in relation  101–​2, 111, 123 expropriation, and  107–​8 general principle of law, as  114–​15 International Law Commission, and  130, 138 international protection of  109–​10 internationalization of  21 mechanism for legal change, as  103–​4 multinational corporations, and  124–​25 origins of concept  110, 128 state responsibility, and  107–​8, 109–​10 state responsibility for injury to aliens, and 115 state succession, and  111, 116, 124–​25, 128 see also concession agreements administrative boundaries, uti possidetis iure principle  78–​79,  299 African international legal scholarship Biafran War, and  401–​2 Fanon’s critique of  383–​84 literary context to decolonization discourse 390 re-​reading of through African literature  383–​84 ‘streams’ of  384, 385, 387 World Peace Through Law conference (Lagos, 1961)  384, 390 see also Elias, Taslim Olawale; Umozurike, Oji African literature acceptance of English language  391–​92 Biafran War, and  401–​2 changes in cultural and political contexts  396 Conference of African Writers of English Expression (Makarere, 1962)  384, 390 decolonization, and  390, 392–​93, 396 literary rereading of African international legal scholarship  383–​84

Algeria private foreign investment, and  160–​61 war of national liberation  53–​54, 343–​44 Western Sahara, and  343–​44, 346–​47,  348–​49 see also Bedjaoui, Mohammed aliens, state responsibility for injury to  115 Allende, Salvador  148–​49, 153, 167 Anand, Ram Prakash Asian approaches to international law, on  312–​13 ‘battle’ for international law  299 colonial roots of international law, on  125 decolonization and legal post-​colonialism, on 300 Eurocentrism of international law, on  311 importance and legacy  316 Indian nationalism and international law, on 314 influences on  298 International Court of Justice, on  238, 239 international law standpoint  298–​99, 304–​5,  311 Nehru, and  298, 305, 306 optimistic viewpoint  303–​4 other Indian jurists compared  309 Pal, and  308 state sovereignty, on  304 Angola, war of national liberation  67 anti-​Semitism  222, see race apartheid see race arbitration of investment disputes see investment disputes armed conflicts see wars of national liberation Australia colonization of  176 Declaration on the Granting of Independence to Colonial Countries and Peoples (1960) 420 dominion status  430 International Court of Justice, and  251 Bandung Conference (1955)  4, 22–​23, 68, 87, 145–​46, 173, 282, 345, 420

460  subject Index Bank for International Settlements (BIS)  290 Bedjaoui, Mohammed acquired rights, on  132, 138 colonialism and international law, on  345 importance and legacy  341, 354–​55 International Court of Justice, on  238–​39 international law standpoint  126, 448 law and Algerian Revolution, on  343–​44 multinational corporations, on  144–​45 scholarship on  341–​42 Western Sahara, on  27, 346–​48 Belgian Congo see Congo crisis (1960) Benin, International Court of Justice, and  252 Biafran War  401–​2 bilateral investment treaties (BITs) compulsory arbitration of investment disputes 181 internationalization of investment contracts, and 194 BIS see Bank for International Settlements Bolivia, multinational corporations, and  155 borders, boundaries, uti possidetis iure principle  78–​79,  299 Broches, Aron  290–​91 boundary-​drawing  5,  28 Canada dominion status  430 International Court of Justice, and  252 multinational corporations, and  167–​68 Suez crisis, and  269–​70 capitalism and colonialism in relation  104,  179–​80 Chaumont, Charles career  359–​60 ‘classical’ international law, on  358–​59, 362 colonized and decolonized peoples’ rights, on  376–​77 ‘École de Reims’  360–​61, 448–​49 importance and legacy  358–​59 international law standpoint  358–​59 Marxism, and  358–​59 ‘new’ international law, on  358–​59, 368 theories of international law, on  369–​70 Vietnam war, on  359–​60, 367 Chile concession agreements, and  112–​13 multinational corporations, and  149–​50, 162, 167 China developmental states, and  94–​95 multinational corporations, and  167–​68 United Nations, and  258–​59 wars of national liberation, and  67

CHM see common heritage of mankind Cold War decolonization, and  13, 125 deep seabed, and  39–​40, 50 development, and  281, 285 developmental states, and  83–​84 international law, and  5–​6 New International Economic Order, and  50 self-​determination, and  426–​27 wars of national liberation, and  56–​57, 62–​63, 66, 70 World Bank, and  281 colonialism apartheid, and  224 beginnings of contestation of  6–​7 capitalism, and  104, 179–​80 capitalist economic exploitation, and  104 earlier forms of statehood  73–​74 human rights, and  208–​9 indirect rule  81 international law, and  125, 345 multinational corporations, and  144–​45,  148–​49 neo-​liberalism, and  297 post-​colonialism, and  145 trade as justification for  175–​76 use of force  15–​16, 18–​19 wars of national liberation, and see wars of national liberation, and World Bank, and  286–​87 common heritage of mankind (CHM) deep seabed, and  23–​24, 38–​39 ideological dimension of  47–​48 negotiations on scope of  41, 45 New International Economic Order, and  49 origins of concept  36 weakening of LOSC provisions on  44–​45 concession agreements acquired rights, and  109 authority to grant  136 colonial annexation of territory, and  112–​13 combination of economic and political functions  108–​9 continuance of  122–​23 decolonization, and  109, 116 definition of  104–​5 economic and political dimensions in relation  101–​2,  123 equitable interests, as  121 foreign investment, and  118–​19 formal and informal legal aspects  108–​9 internationalization of  21 legal extinction of  120–​21 legal rights of  105

subject Index  461 mechanism for colonial rule, as  106–​7 mechanism for legal change, as  103–​4 non(non-​)recognition of existing agreements#  112–​13 other legal instruments distinguished from  105–​6 recasting as state contracts  120 Rudd Concession as example  107–​8 state succession, and  109–​10, 116 uses of  107 see also acquired rights Congo crisis (1960)  271, 276 Consent  7–​8, 14–​15, 65–​66, 138–​40,  308 continental shelves see law of the sea corporations see multinational corporations ‘creole consciousness’  79–​80 Cuba developmental states, and  94–​95 wars of national liberation, and  67 Czechoslovakia, Soviet invasion (1968) Soviet Union  424 Declaration on the Granting of Independence to Colonial Countries and Peoples (1960)  81–​82, 265, 287–​88, 345, 419,  438–​39 decolonization acquired rights, and  116 African literature, and  390 Cold War, and  13, 125 critique of international law, and  125, 138–​39 economic and political dimensions in relation  101–​2, 123,  279–​80 functionalism, and  292 global progression of  76–​77 human rights, and  17–​18, 198–​99, 451–​52 independence and statehood in relation  11 international law, and  2 neo-​liberalism, and  451–​52 New International Economic Order, and  126 peacekeeping, and  268, 277 reconfiguration of global economic system, and 20 retrospective views of  443 statehood, and  11 UN support for  1, 8–​9, 257, 276, 444 deep seabed see law of the sea Democratic Republic of the Congo (DRC) see Zaire dependency categorization of states as  84–​85 Cold War, and  83–​84 colonial indirect rule, and  81 ‘creole consciousness’  79–​80

decolonization, and  71 dependency after independence  71–​72, 92–​93 ‘dependency theory’  22, 72, 93–​94 development and state in relation  72, 77 dictatorship, and  95–​96 earlier forms of statehood  73–​74 European states as benchmark for development 74 historical background  73 Latin America and post-​war global decolonization  76–​77 Latin America, in  72, 74 Latin American dependency (dependentistas)  22,  92–​93 Latin American legal theory, and  79 Latin American model for  9–​10, 85–​86, 92, 99 modernizing ethos of  75, 80–​81, 83–​84 national identity, creation of  77–​78, 79–​80 nationalism, and  89 New International Economic Order, and  72, 89,  99–​100 pan-​national solidarity between  98–​99 postcolonial restructuring of  71–​72 post-​war international development institutions, and  74 post-​war international trade order, and  88 self-​determination, and  95–​96 self-​governance, achievement of  81 states as developmental states  82 technological approach to development  83 trusteeship system, and  81 ‘underdevelopment’ of  83–​84 US developmental model, and  83 uti possidetis iure principle (borders remain the same)  78–​79, 299 Western capitalist national state model, and  95–​96 development changing of discourse on  285 Cold War, and  281, 285 concessional funding of  279–​80 creation of institutional framework  284 legal scholarship on  448–​49 multinational corporations, and  142, 150 private foreign investment, and  157–​58 regional development banks  284–​85 state in relation to  72 statehood, and  12 United Nations, and  265–​66, 276 see also World Bank developmental states categorization of states as  84–​85 Cold War, and  83–​84 colonial indirect rule, and  81

462  subject Index developmental states (cont.) ‘creole consciousness’  79–​80 decolonization, and  71 dependency after independence  71–​72, 92–​93 ‘dependency theory’  22, 72, 93–​94 development and state in relation  72, 77 dictatorship, and  95–​96 earlier forms of statehood  73–​74 European states as benchmark for development  74 historical background  73 Latin America and post-​war global decolonization  76–​77 Latin America, in  72, 74 Latin American dependency (dependentistas)  22,  92–​93 Latin American legal theory, and  79 Latin American model for  9–​10, 85–​86, 92, 99 modernizing ethos of  75, 80–​81, 83–​84 national identity, creation of  77–​78, 79–​80 nationalism, and  89 New International Economic Order, and  72, 89,  99–​100 pan-​national solidarity between  98–​99 postcolonial restructuring of  71–​72 post-​war international development institutions, and  74 post-​war international trade order, and  88 self-​determination, and  95–​96 self-​governance, achievement of  81 states as developmental states  82 technological approach to development  83 trusteeship system, and  81 ‘underdevelopment’ of  83–​84 US developmental model, and  83 uti possidetis iure principle (borders remain the same)  78–​79, 299 Western capitalist national state model, and  95–​96 dictatorship in developmental states  95–​96 dominion status  430 DRC see Zaire Dupuy, René-​Jean  189–​90 ‘École de Reims’  360–​61, 448–​49 economic dimension of decolonization  20, 101–​2, 123,  279–​80 economic growth  12, 20, 83–​84 economic self-​determination  190–​91 Egypt International Court of Justice, and  237 Suez crisis, and  269 wars of national liberation, and  58 Elias, Taslim Olawale Biafran War, on  402

British colonial law, on  318, 319–​20 changes in cultural and political contexts  396–​97 ‘contributionist’ stream of African international legal scholarship, and  384, 385–​86,  398 customary law, on  320–​21 international law standpoint  318–​19 literal construction of decolonization  391 modernization of international law, on  329 political and intellectual context  384–​85 sources of international law, on  334 ‘Enterprise’ proposal for seabed mining see law of the sea epistemology of otherness, human rights, and  214 equitable interests, concession agreements as 121 Ethiopia International Court of Justice, and  239,  241–​42 multinational corporations, and  155 exploitation  8–​9, 20, 22, 23, 24, 26, 31 expropriation acquired rights, and  107–​8 permanent sovereignty of natural resources, and  108–​9 Fanon, Franz  101–​2, 285–​86, 297, 383–​84, 395, 399–​400 financial assistance force prohibition see prohibition of use of force right to use see wars of national liberation foreign investment concession agreements, and  118–​19 multinational corporations, and  157–​58 protection of see state contracts France concession agreements, and  112–​13 deep seabed, and  46–​47 ‘École de Reims’  360–​61 human rights, and  203–​4 International Court of Justice, and  237, 250, 251 legal scholarship on international law  448–​49 private foreign investment, and  160 state contracts, and  189–​90 Suez crisis, and  269, 359–​60 UN trusteeship system, and  434–​35 United Nations, and  258–​59 use of force  15–​16, 18–​19 Vietnam war, and  359–​60 wars of national liberation, and  53–​54 see also Algeria; Chaumont, Charles functionalism, World Bank, and  292

subject Index  463 G77 deep seabed, and  23–​24 private foreign investment, and  157–​58 splits within  452–​53 UNCTAD, and  22, 147–​48 wars of national liberation, and  52, 56, 68–​70 Geneva conventions, wars of national liberation, and  16–​17, 53–​54, 56,  69–​70 genocide, apartheid, and  229 GEP see Group of Eminent Persons Germany anti-​Semitism, and  219–​20 bilateral investment treaties, and  194 deep seabed, and  46–​47 legal education on international law  444 private foreign investment, and  160 Ghana developmental state, as  96 International Court of Justice, and  249–​50 Goa, Indian annexation of  64–​65, 301 Greece, International Court of Justice, and  251 Group of 77 see G77 Group of Eminent Persons (GEP), report on international regulation of corporations 162 gunboat diplomacy  9, 144 Guyana, private foreign investment, and  160–​61 Hammarskjöld, Dag  260, 269, 271, 418 Hegemony  1, 3–​4, 31, 77, 214 historiography of international law  171–​72 human rights Chaumont’s theories  376–​77 colonialism, and  208–​9 colonization-​era and decolonization-​era discourses in relation  200 decolonization, and  451–​52 discursive ‘weapon,’ as  17–​18 epistemology of otherness, and  214 historiographical ‘battle’ as to  200–​1 historiography of  198–​99 neo-​liberalism, and  451–​52 revisionist view of  199, 201–​2 Salamancan natural rights theory  208–​9 self-​determination, and  404, 422, 440 IBRD see World Bank Iceland, International Court of Justice, and  239 ICJ see International Court of Justice IDA see International Development Association IFC see International Finance Corporation ILC see International Law Commission imperialism see colonialism independence see decolonization

India apartheid, and  218–​19 approaches to international law  305 decolonization and legal post-​colonialism  300 deep seabed, and  23–​24, 41 Goa annexation  64–​65, 301 International Court of Justice, and  237–​38,  301 international law publications  302 multinational corporations, and  167–​68 uti possidetis iure principle, and  299 wars of national liberation, and  68 World Bank, and  288 see also Anand, Ram Prakash injury to aliens, state responsibility for  115 institutional law, World Bank, and  290 internal conflicts see wars of national liberation international armed conflicts see wars of national liberation International Bank for Reconstruction and Development (IBRD) see World Bank International Court of Justice (ICJ) 1963 election  249–​50 1966 election  251 Afro-​Asian representation  249–​50,  251 apartheid, and  222–​23, 226, 235–​36, 240–​41, 242, 245, 253–​54 composition of  236, 249–​50, 251, 256 continuation of colonial-​era legal order, as  235, 237, 248, 255–​56 Indian annexation of Goa, on  301 international criticism of  248 review of role of  249 state contracts, and  184–​85 Western Sahara, on  27, 347–​48 International Development Association (IDA)  278–​79 International Finance Corporation (IFC)  282 international institutions functionalism 292 international law, and  28–​29, 239 see also United Nations; World Bank international law African critiques of see African international legal scholarship ‘classical’ international law, Chaumont’s theory of 362 Cold War, and  5–​6 colonialism, and  125, 345 conceptual areas of contestation  14 contextual background to change  4 continuing influence of 1970s on  454 critique of by newly-​independent states  125,  138–​39

464  subject Index international law (cont.) decolonization, and  2, 179–​80 delegitimization of colonial-​era law  14–​15 Eurocentrism  311, 362 historiography of  171–​72 Indian publications on  302 international institutions, and  28–​29 International Law Commission as source of 334 legal education, and  443–​44 legal scholarship on  444 New International Economic Order, and  4, 10 ‘new’ international law, Chaumont’s theory of 368 newly-​independent states, and  138–​39 ongoing priorities for  453 ‘socialist international law’  424 theories of, Chaumont’s critique of  369–​70 third-​world approach to international law (TWAIL)  2–​3, 25, 299, 341–​42 transformation during 1950s to 1970s  4 UN as source of  58–​59, 239, 334 Western viewpoint  127 International Law Commission (ILC) acquired rights, and  114–​15, 116, 130, 138 ongoing priorities for  453 source of international law, as  334 state succession, and  14–​15, 116, 122–​23, 124–​25,  127 international legal scholarship critiques of international law  25, 444 development, on  444 legal education on international law  444 see also African international legal scholarship; Anand, Ram Prakash; Bedjaoui, Mohammed; Chaumont, Charles; Elias, Taslim Olawale; Umozurike, Oji International Seabed Authority (ISA) see law of the sea international trade, developmental states, and  88 internationalization of investment contracts see state contracts investment see foreign investment investment contracts see state contracts investment disputes compulsory arbitration under BITs  181 increase in  196 state defences against liability  196–​97 Iran International Court of Justice, and  237–​38 state contracts, and  184–​85 Israel Suez crisis, and  269 Zionism  228–​29

Italy International Court of Justice, and  252 wars of national liberation, and  62 Japan deep seabed, and  46–​47 developmental state, as  73 International Court of Justice, and  253 ‘just war’ doctrine, wars of national liberation, and  53, 63–​64, 66 Kenya, war of national liberation  53–​54 Kissinger, Henry  42, 169–​70 Koselleck, Reinhart  5 Korea as developmental state  73 Korean War  260 Latin America colonization and natural rights  208–​9 developmental states in see developmental states International Court of Justice, and  250 multinational corporations, and  145–​46 Salamancan natural rights theory, and  208–​9 law of the sea codification of  23–​24 Cold War, and  39–​40, 50 continental shelf delimitation  40–​41 developed states’ approach to deep seabed  40 developing states’ approach to deep seabed  40 developments in deep seabed law  35, 37 ‘Enterprise’ proposal for seabed mining  42 feasibility of seabed mining  45–​46 G77, and  23–​24 ideological dimension of seabed negotiations 47 International Seabed Authority (ISA), proposal for  42–​43,  50–​51 neo-​liberalism, and  451 New International Economic Order, and  37,  47–​48 Seabed Committee  40, 44–​45 UNCLOS III  36, 40, 41, 44, 45, 48, 451 see also common heritage of mankind; United Nations Convention on the Law of the Sea Lebanon, International Court of Justice, and  249–​50 legal personality of multinational corporations  182–​83 Lenin, Vladimir  298, 6–​7, 66, 94–​95, 104, 405, 425 liability avoidance by multinational corporations  183–​84 state defences in investment disputes  196–​97

subject Index  465 Liberia, International Court of Justice, and  239,  241–​42 LOSC see United Nations Convention on the Law of the Sea Malta common heritage of mankind, and  48 deep seabed, and  37, 50 maritime law see law of the sea Marxism capitalism and colonialism, on  104 Chaumont and  358–​59 development, and  285–​86 developmental states, and  94–​95 ‘socialist international law’  424 wars of national liberation, and  53, 66 see also Lenin, Vladimir Mexico, multinational corporations, and  163 mineral resources see law of the sea Morozov, Platon Dmitrievich  25–​26, 405, 413, 416, 425 Moyn, Samuel  202, 206, 452 multinational corporations (MNCs) acquired rights, and  124–​25 avoidance of liability  183–​84 bilateral investment treaties, and  181 code of conduct (proposal)  143, 163, 165, 167–​68,  169 colonialism, and  144–​45 continuance of economic colonialism, as  148–​49 deep seabed, and  36, 46 development, and  142, 150 expropriation, and  107–​8 failure of international regulatory initiatives 173 Group of Eminent Persons (GEP) report  162 international law, and  141 Latin America, in  145–​46 legal personality of  182–​83 mobility (‘travel’) across jurisdictions  142, 151–​52 New International Economic Order, and  169–​70, 173,  177–​78 non-​intervention principle, and  151 permanent sovereignty of natural resources, and  146–​47 post-​independence international legal protection of  180–​81, 182–​83, 185 private and political dimensions of  142,  150–​51 private foreign investment, and  157–​58 regulatory approach to  153, 156, 174 ‘restrictive business practices’ approach to  153–​54

self-​determination, and  177 state in relation to  141, 151–​52, 172 treaty on (proposal)  165–​66, 168–​69 UN debates on  146–​47, 148–​49, 151–​52, 162,  173–​74 UNCTAD, and  22, 147, 148–​49, 153–​54,  157–​58 United Nations Centre on Transnational Multinational corporations (UNCTC)  143, 170,  173–​74 see also state contracts Namibia (South West Africa) International Court of Justice, and  222–​23, 226, 235–​36, 240, 242, 245, 253–​54 South African mandate over  218–​19, 240–​41 see also Umozurike, Oji national boundaries, uti possidetis iure principle  78–​79,  299 national liberation movements see wars of national liberation nationalism developmental states, and  89 self-​determination, and  430 wars of national liberation, and  52, 55–​56, 61, 66, 70 World Bank, and  286–​87 natural rights see human rights Nehru, Jawaharlal  298, 8–​9, 64–​65, 68, 218–​19, 300, 302, 305, 306, 310–​11 neo-​liberalism colonialism and  297 decolonization, and  451–​52 human rights, and  451–​52 law of the sea, and  451 World Bank, and  278 neo-​colonialism  5, 10, 15, 89, 96–​97 Netherlands International Court of Justice, and  249–​50, 251, 253 UN trusteeship system, and  434–​35 New International Economic Order (NIEO) Cold War, and  50 common heritage of mankind, and  49 decolonization, and  126 developmental states, and  72, 89, 99–​100 international law, and  4, 10 law of the sea, and  37, 47–​48 multinational corporations, and  169–​70, 173,  177–​78 self-​determination, and  177 state contracts, and  192, 193, 195 state succession, and  124–​25, 126–​27 NIEO see New International Economic Order

466  subject Index Nigeria Biafran War  401–​2 customary law  320–​21 independence  319–​20 International Court of Justice, and  249–​50, 251, 252 international relations  338 United Nations, and  319–​20 see also Elias, Taslim Olawale Nkrumah, Kwame  96, 285–​86, 328–​29 non-​intervention principle multinational corporations, and  151 upholding of  15–​16 wars of national liberation, and  15–​16, 68 O’Connell, D P  116, 120–​21 otherness, human rights and epistemology of  214 Pakistan bilateral investment treaties, and  194 International Court of Justice, and  249–​50 Pal, Radhabinod  302, 305, 306–​7, 308 Pardo, Arvid  37 peacekeeping, decolonization, and  268, 277 periodization  4, 173 periphery  2, 7, 19 permanent sovereignty of natural resources (PSNR) expropriation, and  108–​9 multinational corporations, and  146–​47 state contracts, and  189–​90, 191 personality of multinational corporations  182–​83 Peru, multinational corporations, and  163 political dimension of decolonization  101–​2, 123,  279–​80 Portugal Indian annexation of Goa, and  64–​65, 301 International Court of Justice, and  237–​38 wars of national liberation, and  56–​57, 64–​65,  67 World Bank, and  287–​88, 291 post-​colonialism concept of  124 multinational corporations, and  145 state succession, and  125 prohibition of use of force upholding of  15–​16 wars of national liberation, and  15–​16, 64–​65, 66, 68 race anti-​Semitism  219–​20, 222,  228 apartheid  221, 223–​24, 225, 229, 231, 235–​36, 239–​41, 253–​54, 287–​88,  291

Convention on the Elimination of All Forms of Racial Discrimination  217, 220–​21, 225 decolonization, and  216, 218, 231 equal rights and continuance of economic inequality 179 genocide 229 International Convention on the Suppression and Punishment of the Crime of Apartheid  216–​17,  225 international law, and  216, 218 prohibition of racial discrimination  17–​18 Zionism  228–​29 re-​description  26 regional development banks  284–​85 ‘Reims School’  360–​61,  448–​49 republicanism, self-​determination, and  427–​28 responsibility of states see state responsibility right to self-​defence, wars of national liberation, and  64–​65 right to use force see wars of national liberation Rudd Concession see concession agreements Russia see Soviet Union Sattelzeit 4 Schmitt, Carl  111, 113–​14 ‘School of Salamanca’  208–​9 seabed see law of the sea self-​defence see right to self-​defence self-​determination Cold War, and  426–​27 customary law status  422 developmental states, and  95–​96 economic self-​determination  190–​91 human rights, and  404, 422, 440 internal self-​determination, concept of  426–​27, 438, 442 internal self-​determination, concept of Copy  426–​27, 438, 442 international law, and  404 legal right of  422, 441 Lenin’s policy of  405–​6, 409 multinational corporations, and  177 nationalism, and  430 New International Economic Order, and  177 origins of concept  6–​7 republicanism, and  427–​28 Soviet Union, and see Soviet Union state contracts, and  177, 190 United Nations, and  190, 262–​63, 404, 405–​6, 414, 427–​28, 433 United States, and see United States wars of national liberation, and  64 Singapore as developmental state  73 ‘socialist international law’  424

subject Index  467 South Africa apartheid, and  218–​19, 221, 223–​24, 225, 231, 235–​36,  239–​41 International Court of Justice, and  222–​23, 226, 235–​36, 239, 240, 242, 245, 253–​54 self-​determination, and  437–​38 South West Africa mandate  218–​19, 240–​41 wars of national liberation, and  64–​65 World Bank, and  287–​88, 291 South West Africa see Namibia Anand’s views on  304 permanent sovereignty of natural resources  108–​9 ‘socialist international law,’ and  424 state succession, and see state succession United Nations and sovereign equality  258–​59 upholding of sovereign state equality principle  15–​16 sovereignty  72, 75, 2–​3, 7, 20, 77, 78–​79, 83, 86–​88, 97, 98 Soviet Union anti-​Semitism, and  228 Cold War, and  13 collapse of (1991)  425 Congo crisis (1960), and  273–​74 Czechoslovakia invasion (1968)  424 Declaration on the Granting of Independence to Colonial Countries and Peoples (1960), and  419 decolonization, and  413 deep seabed, and  50 developmental states, and  83–​84, 97–​98 historiography of self-​determination, and  405 Lenin’s self-​determination policy  405–​6, 409 multinational corporations, and  163 national liberation movements, and  422–​23 ‘new colonial system’  420–​21 New International Economic Order, and  50 private foreign investment, and  159 self-​determination, and  404, 405, 413, 422, 433, 436 ‘socialist international law’  424 state contracts, and  184 United Nations, and  258–​59 see also Lenin, Vladimir Spain concession agreements, and  112–​13 human rights, and  208–​9 ‘School of Salamanca’  208–​9 see also Latin America Sri Lanka deep seabed, and  41 Suez crisis, and  269–​70

Starushenko, Gleb  25–​26, 413–​14, 418, 421 state contracts avoidance of MNC liability  183–​84 bilateral investment treaties, and  194 compulsory arbitration of investment disputes under BITs  181 concession agreements recast as  120 continuance of economic colonialism, as  178–​79,  180 economic self-​determination, and  190–​91 impact of decolonization on international law  179–​80 legal personality of MNCs  182–​83 making of  181–​82 New International Economic Order, and  192, 193, 195 permanent sovereignty of natural resources, and  189–​90,  191 post-​independence international legal protection of MNCs’ interests  180–​81, 182–​83,  185 risk, and  181–​82 self-​determination, and  177, 190 theory of internationalization of  184, 186 trade as justification for colonialism  175–​76 state responsibility acquired rights, and  107–​8, 109–​10 injury to aliens, for  115 state succession acquired rights, and  111, 116, 124–​25, 128 codification by ILC  14–​15, 116, 122–​23, 124–​25,  127 concession agreements, and  109–​10, 116 New International Economic Order, and  124–​25,  126–​27 post-​colonialism, and  125 states, statehood development, and  12 developmental states see developmental states early forms of  73–​74 independence, and  11 succession of states see state succession Suez crisis  269, 359–​60 Switzerland, wars of national liberation, and  63 tabula rasa Tanzania, deep seabed, and  41 terrorism, wars of national liberation, and  69 Thailand as developmental state  73 Third United Nations (UN) Conference on the Law of the Sea (UNCLOS III) see law of the sea third-​world approach to international law (TWAIL)  2–​3, 25, 299, 341–​42 see also African international legal scholarship

468  subject Index trade developmental states and international trade  88 justification for colonialism, as  175–​76 transformaition of international law  3, 314 transnational corporations see multinational corporations trusteeship system  81, 429, 433–​34 Uganda, wars of national liberation, and  60 Umozurike, Oji Biafran War, on  402–​3 changes in cultural and political contexts  396–​97 ‘critical’ stream of African international legal scholarship, and  384–​85,  387–​88 international law, on  394, 399 ‘strong’ stream of African international legal scholarship, and  384 UNCLOS III see law of the sea United Kingdom apartheid, and  222–​23,  239–​40 Atlantic Charter (1941), and  429 colonial law  318–​19 concession agreements, and  107–​8, 112–​13 concessional funding, and  280 Declaration on the Granting of Independence to Colonial Countries and Peoples (1960)  420,  421–​22 deep seabed, and  39–​40, 46–​47 human rights, and  203–​4 indirect rule of colonies  81 International Court of Justice, and  237–​38, 239, 250, 251 multinational corporations, and  163–​64,  167–​68 New International Economic Order, and  47–​48,  50 private foreign investment, and  160, 161–​62 self-​determination, and  416, 430, 436 state contracts, and  184–​85 Suez crisis, and  269 trade as justification for colonialism  175–​76 UN trusteeship system, and  434–​35 United Nations, and  258–​59 use of force  15–​16, 18–​19 wars of national liberation, and  53–​54 United Nations apartheid, and  221, 223–​24, 240–​41 Charter text negotiations  257 concessional funding, and  280 Congo crisis (1960), and  271, 276 creative tensions within  258 Declaration on the Granting of Independence to Colonial Countries and Peoples (1960)  81–​82, 265, 287–​88, 345, 419,  438–​39

decolonization, and  1, 8–​9, 257, 276, 444 deep seabed, and  36, 37, 44–​46, 48 development, and  265–​66, 276, 284 developmental states, and  81, 85–​86, 87–​88 ‘great power’ interests, and  257, 258–​59 human rights, and  17–​18, 202, 422, 451–​52 ILC see International Law Commission Korean War, and  260 multinational corporations, and see multinational corporations non-​intervention principle, and  17 peacekeeping, and  268, 277 permanent sovereignty of natural resources, and  108–​9 prohibition of racial discrimination  17–​18 race, and  216–​17,  218–​19 self-​determination, and  190, 262–​63, 404, 405–​6, 414, 427–​28, 433 source of international law, as  58–​59, 239, 334 sovereign equality, and  258–​59 Suez crisis, and  269 support for decolonization  1, 8–​9 trusteeship system, and  81, 429, 433 ‘Uniting for Peace’  260–​61, 269 voting and veto  258–​59 wars of national liberation, and  52, 56–​57 see also International Court of Justice United Nations Apartheid Convention  216–​17 United Nations Conference on Trade and Development (UNCTAD) creation of  284 G77, and  22, 148–​49 multinational corporations, and  22, 147, 153–​54,  157–​58 private foreign investment, and  157–​58 United Nations Convention on the Law of the Sea (LOSC) adoption of  23–​24 developed states’ rejection of  44 ideological dimension of  48 Implementation Agreement (1994)  44–​45 negotiations on scope of  41 proposal for  38–​39 United Nations Economic and Social Council (ECOSOC) see Group of Eminent Persons United States anti-​colonialism  426–​27 apartheid, and  222–​23,  239–​40 Atlantic Charter (1941), and  429 bilateral investment treaties, and  194 Cold War, and  13, 426–​27 concession agreements, and  110, 112–​13 concessional funding, and  280

subject Index  469 Declaration on the Granting of Independence to Colonial Countries and Peoples (1960), and  420–​21 deep seabed, and  35–​36, 37, 39, 41, 42, 46, 50 development, and  281, 450–​51 developmental states, and  82–​83, 86–​87 equal rights and continuance of economic inequality 179 internal self-​determination, concept of  426–​27, 438, 442 International Court of Justice, and  252 International Development Association, and 283 International Finance Corporation, and  282 legal education on international law  444 legal scholarship on international law  450–​51 multinational corporations, and  149–​50,  169–​70 nationalism, and  430 private foreign investment, and  159, 161–​62 self-​determination, and  6–​7, 405–​6, 418, 426–​27, 433, 438, 441 Suez crisis, and  269 UN trusteeship system, and  429, 433–​34 United Nations, and  258–​59, 260–​61 Vietnam war  56–​57, 68, 83–​84, 359–​60, 367 wars of national liberation, and  56–​57, 68–​69 World Bank, and  282–​83, 286 see also Wilson, Woodrow use of force see prohibition of use of force USSR see Soviet Union uti possidetis iure principle  78–​79, 299 Venezuela, private foreign investment, and  160–​61 Versailles Peace Conference and treaties  9–​10,  114–​15 Vietnam G77, and  56 war  56–​57, 68, 83–​84,  359–​60 wars of national liberation Cold War, and  56–​57, 62–​63, 66, 70 colonialism as act of aggression  53 colonialism as act of foreign oppression  53 G77, and  52, 56, 68–​70 Geneva conventions, and  16–​17, 53–​54, 56,  69–​70 internal conflicts, as  52, 16–​17, 53–​54, 56, 60,  63–​64 international armed conflicts, as  52, 53, 61, 63–​64,  68–​70 international legal recognition of  52, 16–​17, 56, 347

‘just war’ doctrine, and  53, 63–​64, 66 Marxism, and  53, 66 national liberation movements, recognition of  422–​23 nationalism, and  52, 55–​56, 61, 66, 70 non-​intervention principle, and  15–​16, 68 prohibition of use of force, and  15–​16, 64–​65, 66, 68 reinterpretation of history of colonization, as  55–​56 right to self-​defence, and  64–​65 right to use force, scope of  67 self-​determination, and  64 terrorism, and  69 UN as source of international law  58–​59 UN support for  52, 56–​57 wars of self-​defence, as  54–​55 Western viewpoint  62, 66 Western Sahara Algeria, and  343–​44, 346–​47,  348–​49 International Court of Justice, and  27, 347–​48 Wilson, Woodrow  6–​7, 405–​6,  427–​28 World Bank apartheid, and  287–​88, 291 Articles of Agreement  289 Bank for International Settlements, and  290 changing of discourse on development, and 285 Cold War, and  281 colonialism, and  286–​87 demands for ‘development bank,’ and  282 disputes over development role of  280–​81,  285 functionalism 292 historiography of  278 institutional law, and  288, 290 instrument of Northern economic hegemony, as  279, 285 International Development Association  278–​79 International Finance Corporation (IFC)  282 legal basis of Northern dominance of  289 nationalism, and  286–​87 neo-​liberalism, and  278 political neutrality  289–​90 regional development banks, and  284–​85 strategic use of law  290 Zaire Congo crisis (1960)  271, 276 private foreign investment, and  158 Zimbabwe, wars of national liberation, and  60–​61 Zionism  228–​29