Imperialism, Sovereignty and the Making of International Law Part 7 potx

s ov e r e i g n t y a n d t h e p o s t- c o l o n i a l s t a t e 213

which had been granted by the colonial powers to trading companies

exploiting the resources of colonial territories. Mohammed Bedjaoui,

for example, argued that ‘a concessionary contract must end with

the extinction of the ceding state and could survive the change of

sovereignty only at the express wish of the new authority’.42 This position

was understandable as colonial powers and trading enterprises often

acquired ‘rights’ over these resources through duress and deception, and

the concessions had often never been the subject of meaningful consent

on the part of the Third World peoples. The review would examine the

legality of the manner in which the concessions had been obtained and,

further, the profits made by the colonial power or trading company from

the exploitation of the resources. These factors could then be taken into

account in assessing the compensation to be paid to the nationalised

enterprises. Finally, the Third World argued that nationalization was

to be determined according to national rather than international stan￾dards, thus attacking once again the rules of state responsibility relating

to foreign investment.43

The West differed from the Third World on each of these issues. First,

it argued in effect that the only sovereignty enjoyed by the Third World

was the sovereignty provided by European international law; this inter￾national law legitimized conquest and dispossession, as a result of which

no remedy was available to the victims.44 Secondly, the West argued

that the new states were bound by established international law, and

that the Third World state’s control over its natural resources had to

comply with the doctrines of state succession and acquired rights which

stipulate that a new state must respect the obligations undertaken by a

predecessor state.45 Accordingly, it followed, contrary to Bedjaoui, that

the newly independent countries were legally bound to honour the con￾cessionary rights to their natural resources which trading companies

had acquired prior to independence. Finally, the former colonial powers

42 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, in Yearbook of

the International Law Commission, II, 1968, UN Doc. A/CN.4/SER.A./1968 Add 1 at p. 115. 43 Ibid., p. 116. 44 Chief Justice Marshall asserts the point in its most implacable form: ‘The title by

conquest is acquired and maintained by force. The conqueror prescribes the limits.’

Johnson v. McIntosh, 21 U.S. (8 Wheat.) 543 (1823). 45 On acquired rights, see Daniel P. O’Connell, The Law of State Succession (Cambridge:

Cambridge University Press, 1956). For a general overview of the debates, see the

various essays collected in Richard B. Lillich (ed.), The Valuation of Nationalized Property

in International Law (Charlottesville, VA: University Press of Virginia, 1975).

214 imperialism, sovereignty and international law

did not dispute the right of a sovereign to nationalise property per se.

46

Rather, they argued that nationalization was legitimate provided that

a number of conditions were met, the most significant of these being

payment of compensation according to internationally determined stan￾dards. The West relied on sources doctrine for this argument, asserting

that the international standard of compensation was established by cus￾tomary international law which was binding upon the new states once

they became independent, and that the ‘national standard’ asserted by

the Third World lacked any such legal foundations.

The various doctrines -- state succession, acquired rights and sources

doctrine -- are related to each other in complicated ways. Simplifying

once again, Western and Third World characterizations of these doc￾trines reveal fundamental differences in the ways in which each side

understood the history of sovereignty doctrine and its engagement in

the colonial encounter. For instance, acquired rights doctrine, when con￾sidered in the context of state succession which was so central to the

debate involving Third World countries, essentially asserted that the

rights granted by a sovereign to a private entity had to be respected by

the successor sovereign.47 In this way, it seemed to provide sovereignty

doctrine with a past by establishing that the obligations of a predeces￾sor state to a private party were binding on a successor state. Beyond

the minimalist assertion as to the continuity of obligations, it failed

to provide any more complex or substantive means of comprehending

the relationship between the predecessor and successor sovereign. As a

consequence, it denied the Third World’s attempts to recount a complex

history in which colonial powers had, in a number of respects, delib￾erately compromised the nascent sovereignty of the colonial territory.

As an example, several colonial powers sought to protect their inter￾ests by manipulating the essential expression of the Third World state’s

46 See, e.g., Francesco Francioni, ‘Compensation for Nationalisation and Foreign Property:

The Borderland Between Law and Equity’, (1975) 24 International and Comparative Law

Quarterly 255, 260--261. 47 ‘When a certain status or legal right has been acquired under the municipal law of a

State, such status or right must be respected as a matter of international obligation.’

Francioni, ‘Compensation’, 259. I have discussed acquired rights in the context of state

succession, as it was in this context that the doctrine was especially significant to the

new states. However, as Francioni points out, the doctrine has developed in different

ways in different areas of law. For an extended examination of acquired rights in the

context of a dispute over the ownership of resources in a colonial territory, see

Christopher G. Weeramantry, Nauru: Environmental Damage Under International

Trusteeship (New York: Oxford University Press, 1992), pp. 307 ff.

s ov e r e i g n t y a n d t h e p o s t- c o l o n i a l s t a t e 215

sovereignty, its constitution. These colonial powers did so by incorporat￾ing provisions protecting fundamental rights and freedoms in the con￾stitutions to be inherited by the newly independent states; the purpose

of such provisions was not simply to enhance liberal-democratic insti￾tutions in the newly independent states, but also to protect their own

property interests. In crucial respects, then, Third World sovereignty was

manufactured by the colonial world to serve its own interests.48 In addi￾tion, as Okon Udokang points out, countries such as France adopted the

practice of entering into an agreement with one of its colonies shortly

before that colonial state acquired its independence; under the terms of

these agreements, the nascent new state undertook to protect all rights

acquired with respect to its territory prior to independence.49 The same

method was used by America with respect to the Philippines and the

Netherlands with respect to Indonesia.50 As a consequence, the vulner￾able new states often surrendered important rights in order to achieve

independence.

Acquired rights, however, remains agnostic to these events; instead

it simply focuses on sequence, the succession of one state by another,

rather than on the historical and political factors which compromised

the sovereignty asserted by the Third World. The manner in which

sovereignty is brought into being, the complex political and economic

forces which finally shape the appearance of an equal and sovereign state

is thus suppressed by the doctrine. As with nineteenth-century positivist

jurisprudence, the real work of sovereignty doctrine occurs at a level

which is beyond the scrutiny of any approach to these issues which

is based on a question of how order is maintained among ‘sovereign

states’. The presumption that states are sovereign and equal prevents an

examination of the processes by which sovereignty is shaped in such

a way as to preclude scrutiny of its historical engagement in the colo￾nial encounter. The contradiction was that even while the West asserted

that colonialism was a thing of the past, it nevertheless relied precisely

on those relationships of power and inequality that had been created

by that colonial past to maintain its economic and political superior￾ity which it then attempted to entrench through an ostensibly neutral

international law.

From a legal point of view, this entailed emphasizing and expand￾ing those doctrines of international law which prevented those unequal

48 See Okon Udokang, Succession of New States to International Treaties (New York: Oceana

Publications, 1972), pp. 462--464. 49 Ibid., p. 465. 50 Ibid., pp. 465--466.