Imperialism, Sovereignty and the Making of International Law Part 8 docx

252 imperialism, sovereignty and international law

precisely because French traders, for example, were denied access to

British colonies.

The ‘right to trade’ and the assessment of non-European government

in terms of its recognition of the right to trade has been a continu￾ous theme of the discipline. When companies such as the British East

India Company, exercising sovereign rights, administered the territories

of non-European peoples, they established systems of law and gover￾nance that were directed at furthering the commercial relations that

were the very sine qua non of their existence. Commerce and governance

were not merely complementary but identical: a corporation exercised

the power of government. The governance of non-European territories

was assessed principally on the basis of whether it enabled Europeans to

live and trade as they wished. Thus, according to Westlake, non-European

states were uncivilized unless they could provide a system of government

‘under the protection of which . . . the former [Europeans] may carry on

the complex life to which they have been accustomed in their homes’.22 If

such government was lacking, Westlake argued, ‘government should be

furnished’.23 Capitulation systems, protectorate arrangements and out￾right conquest could remedy the situation.

The explicit association between governance and commerce was grad￾ually elaborated over time to establish a more morally nuanced jus￾tification for commerce and colonialism, after the decline of trading

companies and the direct engagement of European governments in the

imperial enterprise. Thus, during the Berlin Conference -- which was pre￾occupied precisely with the orderly exploitation of Africa by the great

European powers -- commerce was characterized by Bismarck as a cru￾cial means of spreading civilization itself. The link between commerce

and civilization was further elaborated, of course, through the concept

of the dual mandate, as developed by Chamberlain and Lugard: ‘We

develop new territory as Trustees of Civilisation for the Commerce of

the World.’24 In these ways, the expansion of European commerce was

not understood as a mechanism for the economic exploitation and sub￾ordination of non-European peoples, but rather, a means of effecting the

entry of the backward peoples into the world of civilization. Humanitar￾ian goals were furthered precisely through the expansion of commerce,

22 John Westlake, Chapters on the Principles of International Law (Cambridge: Cambridge

University Press, 1894), p. 141. 23 Ibid., p. 142. 24 Lord Lugard, The Dual Mandate in British Tropical Africa (Hamden, CT: Archon Books

1965), epigraph.

g ov e r n a nc e a n d g l o b a l i z a t i o n 253

and appropriate systems of government had to be formulated for this

purpose. Even while driven by commerce, the humanitarian aspect of

the rhetoric of governance developed an extraordinarily complex and

resilient character such that, in the new framework of the dual man￾date, all manner of economic policies, could now be justified and refined

as advancing humanitarian causes.

My overall argument, then, is that the non-European world is differ￾ent, that the governance of these societies has been intimately shaped,

since the very beginnings of the colonial encounter, by international

actors, imperial European states, whose actions have been sanctioned

and enabled by international law. It is hardly surprising, then, that

the governance of non-European societies was a subject of considerable

scholarship, and that authors such as M. F. Lindley compiled, described

and analysed these techniques of governance in 1926, in a book reveal￾ingly titled, for example, The Acquisition and Government of Backward Terri￾tory in International Law.

25 At a time when government within European

states was entirely immune to regulation by international law, govern￾ment in non-European states was a matter which international law could

dictate. It must be noted that the purpose of this exercise was often to

grant the indigenous peoples some measure of protection. But the fun￾damental purposes animating governance, of furthering civilization and

commerce, remained the same.

Contemporary debates on governance focus largely on the relations

between the governors and the governed, the relations between the

state and its citizens, the individuals whose democratic rights must

be protected, or whose standards of living must be elevated. My argu￾ment, however, is that, historically, the international legal discourse

on government has been shaped not so much by a concern for the

governed -- although invariably some reference is made to them -- but

by a concern to impose ‘universal standards’ that essentially furthered

European/ Western interests. This history of governance exerts an endur￾ing and powerful pressure on the present. The relationship between

globalization and governance can be seen, I suggest, in the same way:

governance is now designed to provide the political institutions that

will enable the furtherance of globalization. Specifically, this is to be

achieved through the international human rights norms that are seen

25 For other examples of this genre, see Charles G. Fenwick, Wardship in International Law

(Washington, DC: Government Printing Office, 1919); Alpheus H. Snow, The Question of

Aborigines in the Law and Practice of Nations (New York: Putnam, 1921).

254 imperialism, sovereignty and international law

as prescribing universally accepted international standards and which

are used as a basis to further governance.

Governance, human rights and the universal

The emergence of international human rights law is among the most

significant developments to have occurred in the field of international

law and relations during the UN period which has been termed, ‘The

Age of Rights’ by Louis Henkin. Human rights law is revolutionary

because it purports to regulate the behaviour of a sovereign within its

own territory. The emergence of Third World societies, as independent

sovereign states, was simultaneous with the creation of international

human rights law, which significantly conditioned the character of that

sovereignty. The sovereign non-European state, then, never possessed the

absolute power over its own territory and people that was exercised by

the nineteenth-century European state. Further, to the extent that inter￾national human rights law and nationalism represent Western ideas

of the individual, state and society they both create the paradox that

Third World sovereignty was exercised through, and shaped by, Western

structures.

Given the universality of human rights and its aspiration to regu￾late state action with respect to the individual, it is unsurprising that

‘good governance’ should be conceptually and operationally linked with

international human rights law and that it enjoys a certain legitimacy

and coherence as a result. While the question of the universality of

international human rights law has always been debated, developments

following the end of the Cold War raised this issue in a particularly

contentious way. This occurred in part because Western governments

and other entities sought to universalise the political institutions of

the liberal democratic state by elaborating models of ‘democratic gover￾nance’ and ‘legitimate governance’ through international human rights

law. In his scrupulous examination of Article 25, the Right to Politi￾cal Participation enunciated in the International Covenant on Civil and

Political Rights (ICCPR), Henry Steiner concluded in 1988 that Article 25

was an open and programmatic right that could be tailored in various

ways to the particular social and cultural conditions and traditions of

a society.26 By contrast, in his 1992 article on the same matter, Gregory

26 Steiner, ‘Political Participation’.