96 imperialism, sovereignty and international law in a now familiar reversal, discarded several important elements of their jurisprudence; whereas previously they insisted that treaties could not be the basis for acquiring sovereignty over African territory, they now applied their science to the interpretation and application of treaties. Justifying colonialism: trade, humanitarianism and the civilizing mission 215 The Berlin Conference was perhaps the first occasion on which Europe as a body went some way towards articulating a philosophy of colo- nialism which was appropriate for the late nineteenth century, a time in which the colonial project entered a new phase because of the direct involvement of states in the furtherance of colonialism, and because of the systematic economic exploitation of the colonies which led not only to intense inter-state rivalries but the increasing importance of the colonies for the metropolitan economy. The idea of the civilizing mission, of extending Empire for the higher pur- pose of educating and rescuing the barbarian, had a very ancient lin- eage. 216 Versions of the civilizing mission were used by all the actors who participated in imperial expansion. New challenges were posed to theway in which imperial states conceived of themselves and their colonies once, for example, the United Kingdom dissolved the East India Company and assumed direct responsibility towards its Indian subjects. 217 The humanitarian treatment of inferior and subject peoples was thus one of the issues addressed by the conference. Over the previous century or so, the slave trade had been gradually abolished by international law. The conference, however, while reiterating the necessity to stamp out 215 ‘The conquest of the earth, which mostly means the taking it away from those who have a different complexion or slightly flatter noses than ourselves, is not a pretty thing when you look at it too much. What redeems it is the idea only. An idea at the back of it.’ Joseph Conrad, Heart of Darkness (Edinburgh: W. Blackwood & Sons, 1902). 216 See Pagden’s study of how the modern European Empires modelled themselves on theRoman Empire, and the Roman idea of what may be termed the ‘civilizing mission’. Anthony Pagden, Lords of All the World: Ideologies of Empire in Spain, Britain and France c. 1500 c.1800 (New Haven: Yale University Press, 1995). See especially his discussion of Cicero’s version of the ‘civilizing mission’, ibid., pp. 22 23. 217 This led Queen Victoria to declare that the Crown was as responsible towards its native Indian subjects as it was to all its other subjects. See Quincy Wright, Mandates Under the League of Nations (Chicago: University of Chicago Press, 1930), p. 11, n. 18. colonialism in nineteenth-century international law 97 thetrade, went further. In his opening speech at the conference, Prince Bismarck noted that ‘all the Governments invited share the wish to bring the natives of Africa within the pale of civilization by opening up the interior of the continent to commerce’. 218 The British representative made similar remarks, warning of the dangers of completely unregu- lated trade and arguing for that type of trade which would ‘confer the advantages of civilization on the natives’. 219 The conference concluded that it had properly embodied these concerns in Article 6, which read in part: All the Powers exercising sovereign rights or influence in the aforesaid territo- ries [the conventional Basin of the Congo] bind themselves to watch over the preservation of the native tribes, and to care for the improvement of the condi- tions of their moral and material well-being, and to help in suppressing slavery and especially the Slave Trade. 220 These vaguely expressed concerns were only sporadically implemen- ted; 221 indeed, the most notable achievement of the conference was the creation of the Congo Free State, which was subsequently recognised as belonging to the personal sovereignty of King Leopold II of the Belgians and which was the scene of mass atrocities. 222 Nevertheless, the human- itarian rhetoric of the conference was extremely important because it refined the justification for the colonial project. Trade was not what it had been earlier, a means of simply maximizing profit and increasing national power. Rather, trade was an indispensable part of the civiliz- ing mission itself; the expansion of commerce was the means by which the backward natives could be civilized. ‘Moral and material’ well being were the twin pillars of the programme. This gave the whole rhetoric of trade a new and important impetus. Implicit within it was a new world view: it was not simply the case that independent communities would trade with each other. Now, because trade was the mechanism for advancement and progress, it was essential that trade be extended as far as possible into the interior of all these societies. 218 Quoted in Lindley, The Acquisition and Government,p.332. 219 Ibid. 220 Article 6 of the General Act. 221 Crowe, for example, asserts quite forcefully that humanitarian issues played only a very small role in the Conference. See Crowe, The Berlin West African Conference, pp. 3, 103 04. 222 See Lindley, The Acquisition and Government, pp. 112 113. Adam Hochschild, King Leopold’s Ghost: A Story of Greed, Terror, and Heroism in Colonial Africa (Boston: Houghton, Mifflin, 1999). 98 imperialism, sovereignty and international law Recognition and the reconstruction of positivism Ihavestressed and reiterated the importance of the concept of society because its significance for the whole edifice of positivist jurisprudence has not been adequately appreciated. Although a fundamental part of the nineteenth-century positivist vocabulary, ‘society’ has ceased to be a legal concept of any importance in contemporary discussions of interna- tional law. This is because recognition doctrine serves to obscure the role and function of ‘society’ by presenting it as a creation of sovereignty. In termsofmyoverall argument, this manoeuvre is crucial for the pur- poses of obscuring the understanding of society’s operational role as a mechanism by which cultural assessments can be transformed into a legal status. Furthermore, presenting society as a creation of sovereignty suggests another way in which international law suppresses the colo- nial past at the doctrinal level. Recognition doctrine was fundamental, not only to the task of assimilating the non-European world, but to thevery structure of the positivist legal system. Lorimer points to this in arguing that ‘Recognition, in its various phases, constitutes the premise of the positive law of nations when stated as a logical sys- tem’. 223 The link between positivism and recognition may be traced both historically 224 and logically. In logical terms, Lorimer’s assertion appears correct, in that the positivist emphasis on the sovereign as being the fundamental basis of international law suggests that it is only the phenomena which the sovereign recognize that become part of the legal universe. Recognition doctrine is implicitly based on the assumption of the existence of a properly constituted sovereign. Only those principles which are created and accepted by sovereigns consti- tute law, only those entities which are granted legal personality by thesovereign exists within the legal universe. Once established, the sovereign becomes the prism, the gaze, which reconstitutes the legal universe. What this view of recognition doctrine conceals, however, is the complex process by which the sovereign is constituted in the first place. 223 Lorimer, The Institutes of the Law of Nations,p.3.Indeed, Lorimer commences his work by stating that the Law of Nations is divided into three leading doctrines: (1) The doctrine of recognition; (2) The doctrine of normal relations that result from the doctrine of recognition; (3) The doctrine of the abnormal relations that result from the doctrine of recognition. Ibid. 224 Foranaccount of the beginnings of the doctrine of recognition in the eighteenth and early nineteenth centuries and how this corresponded with the emergence of positivism, see Alexandrowicz, ‘The Theory of Recognition’, p. 176. colonialism in nineteenth-century international law 99 The origins of sovereignty have always constituted a major problem forthe discipline, as suggested by contemporary debates about the right of self-determination, for example. Within the framework of the colonial encounter, however, it is possible to trace how a very self- conscious effort was made to constitute sovereignty in ways that were explicitly racialised. Austin argued that law was the command of the sovereign. Positivists focused on sovereignty, but at least with respect to the European non-European distinction, the powerful and defining idea that sovereignty was the exclusive preserve of Europe was enabled by an elaboration of the concept of ‘society’. Law properly prevailed only among the members of society. Consequently, for the positivists, the concept of law was intimately connected with the concept of soci- ety, rather than that of sovereignty as outlined by Austin. 225 The con- cept of society is crucial to the positivist scheme because it enables a distinction to be made between different types of states; the effect of the distinction is to exclude non-European states from the fam- ily of nations and hence from the realm of sovereignty itself. 226 Seen in this way, the constitution of sovereignty depended on the elabo- rations which ‘society doctrine’ alone could develop. This reliance on the concept of society to establish sovereignty seems somewhat at odds with the claim that sovereignty is the core and essential principle of international law, and that everything within the system derives from sovereignty. The sovereign European state was established through reliance on the concept of society. Once constituted, however, the sovereign asserts supremacy by presenting itself as the means by which society operates and comes into being. It is through recognition doctrine that sovereignty doctrine is reconstructed and presents itself as self-contained, coherent, comprehensive and all-encompassing. A structure of power and decision making is implicit in the doctrine because the power to ‘recognise’ new 225 See Hall, ATreatise on International Law,p.40. ‘It is scarcely necessary to point out that as international law is a product of the special civilisation of modern Europe, and formsahighly artificial system of which the principles cannot be supposed to be understood or recognized by countries differently civilized, such states can only be presumed to be subject to it as inheritors of that civilisation. They have lived, and are living, under law, and a positive act of withdrawal would be required to free them from its restraints.’ 226 Crawford summarizes the situation in the nineteenth century as: ‘States as such were not therefore necessarily members of the Society of Nations. Recognition, express or implied, solely created their membership and bound them to obey international law.’ Crawford, The Creation of States,p.13. 100 imperialism, sovereignty and international law states is vested in the states that are already sovereign. The doctrine is premised on the existence of a sovereign state whose will establishes law and whose actions may be subject to lawyers’ inquiry. Once the existence of the state may be presumed, positivist jurispru- dence acquires some semblance of consistency. Once a particular group of states wins the title of ‘sovereign’, an authoritative interpretive framework, employing clearly established categories of ‘backward’ and ‘advanced’ is established, and used to determine the status of other, excluded states. Simple acceptance of this framework precludes an inquiry into how this distinction was made and why one set of states becomes sovereign while the other does not, even though anthropolog- ical and historical research subversively suggests various disconcerting parallels between these apparently disparate societies. My argument is that recognition doctrine was not merely, or even primarily, about ascertaining or establishing the legal status of the entity under scrutiny; rather, it was about affirming the power of the European states to claim sovereignty, to reinforce their authority to make such determinations and, consequently, to make sovereignty a possession that they could then proceed to dispense, deny, create or partially grant. The history of sovereignty doctrine in the nineteenth century, then, is a history of the processes by which European states, by developing a complex vocabulary of cultural and racial discrimination, set about establishing and presiding over a system of authority by which they could develop the powers to determine who is and is not sovereign. Recognition does not so much resolve the problem of determining the status of unknown entities as obscure the history of the process by which this decision making framework comes into being. Sovereignty is explicitly identified with particular cultural character- istics and a particular cultural process: that of Europe. The history of sovereignty then becomes the coming into being of European civilization and, at the same time, the conventional history of how international law becomes universal. Reconceptualizing sovereignty Colonialism and the racialization of sovereignty An examination of the foundations of positivist views of sovereignty and their complex relationship with colonialism suggests new ways of approaching traditional understandings of sovereignty doctrine and the character of sovereignty as it was inherited by the non-European world. colonialism in nineteenth-century international law 101 In attempting to formulate a new, scientific international law, the jurists of the nineteenth century articulated a formalist model of sovereignty; sovereignty as an absolute set of powers which was bound by no higher authority and which was properly detached from all the imprecise claims of morality and justice. This model of sovereignty has been the subject of a considerable and important critique. The funda- mental problem with this model, the problem which was evident from the time it was first articulated, was the problem of how order could be created among sovereign states in the absence of an overarching sovereign authoritatively to articulate and enforce the relevant law. The conundrum presented by this image of sovereignty has been, in one wayoranother, the central preoccupation of the discipline, and schol- ars have generated an enormous amount of important work that seeks to address the basic question of why sovereign states obey, or should obey, international law. Amajor concern of this chapter is to identify what this frame- work excludes. Although this framework plays a significant role in international legal thinking, the relationship between sovereignty and the non-European world cannot be properly understood within it. The interaction between European and non-European societies in the colo- nial encounter was not an interaction between equal sovereign states but between sovereign European states and non-European states denied sovereignty. The conventional way of accounting for this relationship is by recourse to recognition doctrine, 227 and to the story of the ‘expan- sion of international society’ an ambiguous, euphemistic and some- what misleading term when it is understood that this refers not to an open process by which the autonomy and integrity of non-European states were accepted, but to the colonial process by which Asian and African societies were made to accept European standards as the price of membership. The paradigm of ‘order among sovereign states’ excludes from critical inquiry the processes which I have attempted to trace here; the process by which non-European states are deemed to be lacking in sovereignty and hence excluded from the family of nations and of law; and the racialization of the vocabulary of the period, in terms not only of the explicit distinctions between civilized and uncivilized, advanced and bar- baric, but in terms of the integration of these distinctions into the very 227 See the discussion above on the way in which recognition doctrine restores the integrity of the positivist framework. 102 imperialism, sovereignty and international law foundations of the discipline, the ostensibly neutral concepts of ‘law’, ‘society’ and ‘sovereignty’. The ‘order’ paradigm, then, cannot give any account of the role of race and culture, not only in the application of these concepts but in their very formation. I argue, by contrast, that sovereignty can be understood only in terms of its complex relation- ship with the colonial encounter and the constellation of racial and cultural distinctions it generated and elaborated. At the simplest level, the connection between sovereignty and culture was embodied by the fundamental positivist proposition that only European states could be sovereign. This complete identification of Europe with sovereignty is maintained, reiterated and reinforced at a number of different levels. Not only was the non-European excluded from the realm of sovereignty but European culture and society were naturalized. Hence, Lawrence argues that European states had belonged to the family of nations ‘since time immemorial’. Lawrence continues: Many of them existed before the great majority of its rules came into being. There wasnoneed for them to be formally received among its subjects. Anything like a ceremony of initiation would have been wholly inapplicable to their case. 228 The naturalist notion of a mythic state of nature is replaced by a positivist notion of a mythic age when European states constituted a self- evident family of nations. Lawrence emphatically argues that the origins of European supremacy are beyond history and inquiry, and incapable of identification. The appeal to ‘time immemorial’ precludes inquiry into how European states were deemed sovereign in the first place. 229 In effect, Europe is the subject of sovereignty and non-Europe the object of sovereignty. Acceptance of these premises the primacy of sovereignty and the identification of Europe as exclusively sovereign creates a conceptual framework within which the only history of the non-European world which may be written by the discipline is the his- tory of its absorption into the European world in order to progress towardsthe ultimate point of acquiring sovereignty. Two different dimensions of sovereignty can be seen when studied from this point of view: since sovereignty in a European context is a given, the European issue is how conflicts between sovereign states may be resolved in the absence of an overarching sovereign; the problem for the non-European 228 Lawrence, The Principles of International Law,p.84. 229 Writers such as Westlake were insistent that the origins of sovereignty could not be inquired into. See Westlake, Chapters on the Principles of International Law, pp. 134 136. colonialism in nineteenth-century international law 103 world, by contrast, is its acquisition of sovereignty. This framework cre- ates, in effect, something like a linear, evolutionary scheme in which the non-European world is the past and the European world the future. Thus, while the non-European world may illuminate aspects of the past of the European world that may otherwise remain hidden, the complex work of the future lies in the elaboration of established sovereignty, an elaboration which occurs through an examination of the conceptual problems arising from the interaction of sovereign European states. Sovereignty manifested itself quite differently in the non-European world as compared with the European world. First, since the non- European world was not ‘sovereign’, virtually no legal restrictions were imposed on the actions of European states with respect to non-European peoples. European states could inflict massive violence on non-European peoples, invariably justified as necessary to pacify the natives, and fol- low this with the project of reshaping those societies in accordance with the European vision of the world. Sovereignty was therefore aligned with European ideas of social order, political organization, progress and development. This points to a second and implicit difference between sovereignty in Europe and sovereignty in the non-European world. In Europe, nineteenth-century positivism created a situation in which sovereignty was supreme and a sovereign’s actions within its own territory were beyond scrutiny. In contrast, lacking sovereignty, non- European states exercised no rights recognizable by international law over their own territory. Any restrictions on the actions of European states towards non-European states resulted from conflicts between European states regarding the same territory, not from the rights of the non-European states. This was evident in the partition of Africa, which was determined in accordance with the needs of the major European states. An understanding of the role of race and culture in the formation of basic international law doctrines such as sovereignty is crucial to an understanding of the singular relationship between sovereignty and the non-European world. It is singular in that sovereignty manifested itself in very different ways and with very different effect in the non-European world in contrast with the European world. The positivist intent to erase the non-European world from any sub- jectivity or personality pervades positivism at virtually every level of its jurisprudence: in the distinction between civilized and non-civilized states, in the doctrine of terra nullius,inthe attempted suppression of the long history of treaty practice between European and non-European 104 imperialism, sovereignty and international law peoples and inevitably, as Westlake points out, in the European acquisi- tion of sovereignty itself: The form which has been given to the question, namely what facts are necessary and sufficient in order that an uncivilized region may be internationally appro- priated in sovereignty to a particular state? implies that it is only the recognition of such sovereignty by the members of the international society which concerns us, that of the uncivilized natives international law takes no account. 230 As a consequence of the positivist conception of sovereignty, the char- acter of sovereignty in the non-European world is profoundly different from its character in the European world. Within the nineteenth-century positivist framework, sovereignty was paramount. Sovereignty repre- sents, then, at the most basic level, an assertion of power and authority, a means by which a people may preserve and assert their distinctive culture. For the non-European world, sovereignty was the complete nega- tion of power, authority and authenticity. This was not only because European sovereignty was used as a mechanism of suppression and management, but because the acquisition of sovereignty was the acqui- sition of European civilization. In effect, then, for the non-European society, personhood was achieved precisely at that point of time when it ceased to have an independent existence; when it was absorbed into European Empires or when it profoundly altered its own cultural prac- tices and political organizations. This paradox and irony is nicely if unselfconsciously suggested by Oppenheim when discussing the transfer of sovereignty by cession: cession of territory made to a member of the family of nations by a State as yet outside that family is real cession and a concern of the Law of Nations, since such State becomes through the treaty of cession in some respects a member of that family. 231 The sovereignty acquired by the non-European state, then, was only tenuously connected with its own identity; 232 rather, it was artifici- ally created in accordance with the interests and world view of Europe; it emerged and was inextricably linked with a complex of practices which were explicitly directed towards the exploitation and domination of non- European peoples. 230 Ibid., p. 136. 231 Oppenheim, International Law,p.86. 232 Forapowerful argument as to the continuing effects of this artificiality for African states, see Mutua, ‘Why Redraw the Map’. The problem, of course, remains as to whether it is possible or desirable to return to some ‘natural’ identity. colonialism in nineteenth-century international law 105 Sovereignty for the non-European world is alienation and subordina- tion rather than empowerment. This point emerges powerfully from a study of positivist approaches to treaty making when it is clear that the only occasion when native ‘sovereignty’ or ‘personality’ is bestowed or recognised is in a context where that personality enables the native to transfer title, to grant rights whether trading, to territory, or to sovereignty itself. 233 The basic point is that the development of the idea of sovereignty in relation to the non-European world occurs in terms of dispossession, its ability to alienate its lands and rights. As in the case of Vitorian jurisprudence, the native is granted personality in order to be bound. This is a radical contrast with the elaboration of sovereignty in the European world where the question is: are there any limits at all which can be persuasively applied to the Leviathan of state sovereignty? Sovereignty in the European and non-European worlds are characterized, then, in two conceptual frameworks which, though related in the fact that they are inverses of each other, are mutually exclusive. The peculiar character of sovereignty in the non-European context is further evident in protectorate arrangements. On the one hand, it may appear that such arrangements recognised and embodied native sovereignty. It is clear, however, that native sovereignty is accommo- dated largely to the extent that this is compatible with the interests of colonial powers. In cases where vital issues were at stake, European states simply assumed sovereignty over the issues. Native sovereignty could be calibrated, then, in terms of the interests of the European pow- ers which clearly recognised the advantages of sometimes not assum- ing sovereignty over the territories they controlled, as such sovereignty could be accompanied by responsibilities such as the responsibility to protect other Europeans within that territory. The protectorate arrange- ment was a legal embodiment of a very contemporary phenomenon: the self-conscious exercise of control over a territory without the accompa- nying burden of assuming official sovereignty over that territory. Similar arguments may be made with regard to consent: consent was the very bedrock of the positivist system, and the whole science of positivism was dedicated to identifying whether in fact a state had consented to be bound by a particular principle; in the case of the non-European world, Kasson’s apparently well-meaning attempt to make native consent an integral part of the scheme facilitated the construction of the pretence that natives had in fact consented to their own dispossession. Consent 233 See the discussion above. [...]... receiving petitions from the inhabitants of the territories as to the implementation of the mandate This system, however, was far from successful.27 The League of Nations and the new international law Sovereignty and the move to institutions:28 the creation of the League of Nations The Mandate System was created in the context of a broader set of developments in international law and relations that occurred... ‘sacred trust of civilization’, the mandatory and the Council of the League of Nations entered into separate mandate agreements These agreements outlined the obligations and powers of the mandatory in greater detail, and sought to strengthen further the protection of the natives This was provided both by the general formula that the mandatory ‘shall undertake to promote to the utmost the material and moral... issue of the legacy of the nineteenth century for the discipline as a whole Lawrence’s definition of international law reflects both the view prevalent at the time and the fundamental nexus between race and law: International law may be defined as The rules which determine the conduct of the general body of civilized states in their dealings with one another’. 240 A century later, international law is... was the possibility and effectiveness of reversing the consequences of colonialism The optimistic international lawyers of the 1960s, even those notable Third World scholars who were the most trenchant critics of the Eurocentric character of international law, were hopeful that the acquisition of sovereignty and the participation of the Third World in international legal forums, would result in the. .. that the contemporary discipline of development originated with the Mandate System in important ways The concluding part of this chapter attempts to outline the legacy of the Mandate System and the enduring significance of this great experiment in international management at both the practical level and at the theoretical level for contemporary international law and institutions The creation of the Mandate... Brierly, The Shortcomings of International Law , (19 24) 5 British Yearbook of International Law 4 For a more historical account, see McNair, International Law, I, §50 For an introduction to the Vienna School and the immensely important work of Hans Kelsen, see Josef L Kunz, ‘On the Theoretical Basis of the Law of Nations’, (19 24) 10 Transactions of the Grotius Society 115 For a later assessment of the period,... after the First World War My interest here lies in the challenge that the new international law of pragmatism posed to the formalist and to the now-discredited theory of positivist international law of the nineteenth century The pragmatist challenge was based in important ways on the insights and proposals of American jurists, and I attempt to show how the Mandate System embodied many of the insights of. .. l aw the decolonization of international law was by no means universally acclaimed; in the 1960s, when it was clear that the emergence of the Third World would radically change the character of the international system, a number of eminent international lawyers voiced concern about the dilution, because of these new states, of an international law which was, in the final analysis, European. 244 The question... International Mandates, pp 43 44 , 53 Hall, Mandates, p 94 Hall, Mandates, p 94 This scheme was the result of a confrontation between Wilson and several statesmen of the British Dominions Smuts of South Africa and Hughes of Australia as to the fate of the German colonies The Dominions, supported by Britain, which at all times acted with the diplomatic tact born of much experience, demanded annexation of the. .. states around the globe, whether in Asia, Africa or Eastern Europe Whatever the differences in legal status and international law since then and now, the present resembles the late nineteenth century in that basic respect More generally, the nineteenth century offers us an example of a far broader theme: the importance of the existence of the ‘other’ for the progress and development of the discipline . sovereignty and hence excluded from the family of nations and of law; and the racialization of the vocabulary of the period, in terms not only of the explicit distinctions between civilized and. in the first place. 229 In effect, Europe is the subject of sovereignty and non-Europe the object of sovereignty. Acceptance of these premises the primacy of sovereignty and the identification of. scholars who were the most trenchant critics of the Eurocentric character of international law, were hopeful that the acquisition of sovereignty and the participation of the Third World in international