Imperialism, Sovereignty and the Making of International Law Part 5 docx

t h e m a n da t e s y s t e m o f t h e l e ag u e o f n a t i o n s 135

McNair’s view -- which may be traced back to Kant’s idea of the ‘demo￾cratic peace’ -- suggests that international jurists gradually were accept￾ing the insights of political scientists and theorists. Nevertheless, the

interior of the state remained outside the control or even scrutiny of

international law, which could address state behaviour only when it

emerged into the conscious sphere, as it were, when it manifested itself

in the external actions of the state and thereby became a properly inter￾national issue.81 The frustration for inter-war jurists was that, while

they could vaguely conceptualise the interior in various ways, they were

unable to act upon it.82

The discovery of interiority is central to the phenomenon of moder￾nity as a whole.83 The great literature of modernity -- the works of Joseph

Conrad, T. S. Eliot, Henry James, James Joyce and Virginia Woolf -- are

preoccupied with mapping the interior, with tracing and examining

the workings of an inner consciousness.84 International jurists sensed

that access to the interior of the state would revolutionise their disci￾pline in much the same way that Joyce had revolutionised the novel

and Freud had revolutionised our understanding of human nature. And

yet, this inquiry was precluded by sovereignty doctrine. We might under￾stand the monumental significance of international human rights law in

these terms: it enabled international law and institutions to enter the

interior, to address the unconscious, and thereby to administer ‘civiliz￾ing therapy’ to the body politic of the sovereign state.

Whereas previously the internal character of the sovereign European

state was immune from scrutiny, in the inter-war period it was precisely

through the Mandate System that international law and institutions

had complete access to the interior of a society. It was in the operations

of the Mandate System, then, that it became possible for international

law not merely to enter the interior realm, but also to create the social

and political infrastructure necessary to support a functioning sovereign

81 See text accompanying nn. 75--80. 82 Freud’s work, of course, had a far more direct relevance to international law and the

whole question of war and aggression, as it sought to identify the origins of

aggression and the death drive. See Sigmund Freud, James Strachey (ed. and trans.),

Civilization and Its Discontents (New York: W. W. Norton, 1961). 83 See generally H. Stuart Hughes, Consciousness and Society (New York: Knopf, 1958). 84 See generally, e.g., Henry James, The Portrait of a Lady (Boston: Houghton, Mifflin & Co.,

1881); Joseph Conrad, Heart of Darkness (Edinburgh: W. Blackwood & Sons, 1902); James

Joyce, Ulysses (Paris: Shakespeare & Co., 1922); Virginia Woolf, Mrs. Dalloway (New York:

Harcourt, Brace & Co., 1925); T. S. Eliot, The Waste Land (New York: Boni & Liveright,

1922).

136 imperialism, sovereignty and international law

state.85 Here, then, sovereignty was to be studied not in the context of

the problem of war and of collective security, but in a very different

constellation of relationships that are central to the understanding of

sovereignty in the non-European world.

Within the Mandate System, sovereignty is shaped by, and connected

with, issues of economic relations between the colonizer and the col￾onized on the one hand, and comprehensively developed notions of

the cultural difference between advanced Western states and backward

mandate peoples, on the other. It was in the Mandate System that inter￾national law and institutions could conduct experiments and develop

technologies that were hardly possible in the sovereign Western world.

It was in the Mandate System, furthermore, that many of the interests

of jurists such as Pound, Alvarez and Hudson could find expression.

This was because the task confronting the Mandate System involved far

more than the granting of a simple juridical status. Rather, interna￾tional law and institutions were required to create the economic, politi￾cal and social conditions under which a sovereign state could come into

being. In this sense, law had to be combined with sociology, political

science and economics in order to achieve the goals of the Mandate

System. It was through international institutions that such a task of

synthesis could be addressed. Precisely because of this, the aspirations

of pragmatic jurists to make law more socially oriented could be given

effect; international institutions made pragmatic jurisprudence a possi￾bility in the field of international relations. It is, then, by studying how

this occurred that we may gain an understanding of both the unique

character of non-European sovereignty and, conversely, of the identities

that international institutions developed in the course of bringing such

sovereignty into being.

The Mandate System and colonial problems

Introduction

Although the Mandate System, in strictly legal terms, applied only to

the territories formerly annexed to Germany and the Ottoman Empire,

inter-war lawyers and scholars understood that it had a far broader

85 Another relationship is suggested in seeing the mandate society as the unconscious.

Most often, the encounter with the unconscious is characterized as a journey into the

past, an encounter with the primitive: in this case, the backward mandate people.

This is one interpretation of Marlow’s journey upriver in Heart of Darkness. See Conrad,

Heart of Darkness.

t h e m a n da t e s y s t e m o f t h e l e ag u e o f n a t i o n s 137

significance. It represented the international community’s aspiration,

through the League, to address colonial problems in general in a system￾atic, coordinated and ethical manner. At the highest level, it embodied

‘the ideal policy of European civilization towards the cultures of Asia,

Africa, and the Pacific’.86

The last major conference to be held on colonial problems was

the Berlin Conference of 1884--5.87 The character of the relationship

between the European and non-European world had changed profoundly

since that time as a consequence of numerous developments, includ￾ing the First World War, the emergence of anticolonial movements and

the condemnation of colonialism within the West itself. It was in these

complex circumstances that the mandate had to legitimize its existence

and demonstrate that the creation of international institutions would

result in a better way of addressing colonial problems. More broadly,

the Mandate System generated a debate among international lawyers on

the role of their discipline in legitimizing colonial conquest. The cre￾ation and operation of the Mandate System, then, can be understood

best in terms of these debates regarding colonialism and its significance

for international law and relations.

Legitimizing the Mandate System: colonial problems

in the inter-war period

By the end of the First World War, if not earlier, it was clear that many

non-Western states would become sovereign states.88 This point was

most dramatically demonstrated by Japan’s acceptance into the family

of nations, which was followed in 1905 by the Japanese defeat of Russia,

which marked not only Japan’s military ascendancy but also its assump￾tion of the role of a colonial power, as the war was fought essentially

86 Wright, Mandates, p. vii. 87 Although the largest conferences were held in 1885, Western powers held numerous

other conferences relating to colonial problems between 1885 and 1912. Africa had

the doubtful distinction of being the object of concern of many of these conferences.

G. L. Beer, the American expert on Africa, stated that ‘no other region had called forth

more international cooperation or had been subjected to more comprehensive

international control’. See Hall, Mandates, p. 103 (quoting G. L. Beer, African Questions at

the Paris Peace Conference; With Papers on Egypt, Mesopotamia, and the Colonial Settlement,

New York: The Macmillan Co., 1923, p. 193). Beer was among several American experts

on colonial affairs; others included Colonel House, who accompanied Wilson to the

peace talks. 88 For an account of the non-European states that had been accepted, even if only

partially, into the family of nations, see Kingsbury, ‘Sovereignty’, 607--608.