Colonialism and Empire in International Law

Introduction

Colonialism has been inscribed in international law in spite of attempts by the League of Nations and the United Nations to limit the right of states to exert force on other sovereign states. As Bowden notes, in spite of many Western colonial possessions seeking the newly recognized right to national self-determination, unexempted state sovereignty, unqualified inclusion in international society, and full recognition under international law there has been little movement away from colonialism in the 20th and 21st centuries.[footnoteRef:2] Wilson condemned colonialism and championed self-determination via the League of Nations and the Mandate System.[footnoteRef:3] Wilson went so far as to declare the US a trustee of the Filipino peoplehowever, this idea of trusteeship flies in the face of self-determination; it allowed powerful states like the US to maintain colonies while paying lip service to anti-colonial ideals.[footnoteRef:4] International law was used, in short, to facilitate colonialism even at the same time colonial powers projected an attitude of embracing the right to self-determination of the people. [2: Bowden B., The Empire of Civilisation: The Evolution of an Imperial Idea (2009) 126.] [3: A. Anghie,Imperialism, Sovereignty and the Making of International Law(CUP, 2004) 140.] [4: Anghie [n2] 140.]

The Mandate System

Colonial territories have always represented significant economic importance for colonial powers.[footnoteRef:5] At the end of the 19th century, for instance, the US battled Spain for control of the Philippinesnot out of any altruistic desire to liberate the Filipino people but rather out of a desire to expand the American Empire. The US had always been motivated by a spirit of Manifest Destiny, which was used to justify its westward push across the American continent and then, having reached to the Pacific, was used to send the Empires rein further west into Asia. The westward expansion of the US is part of its colonial history in America. Its treatment of the Native American tribes shows its view of indigenous peoples and the extent of their rights in the face of empire. The US was begun essentially as a business by the English and profits were always the main motive of expansion. As Anghie notes, This preoccupation with profit contrasted somewhat with the noble visions of Empire that others put forward to justify empire building later in the 20th century.[footnoteRef:6] The idealistic words of Wilson with his 14 points centered around this single idea: adjust colonial claimsa point that brought context to everything else.[footnoteRef:7] Even from the perspective of the time it was clear that the colonial nations were operating more out of commercial self-interest than out of any altruistic belief. Colonies provided raw materials for empires and they were of vital importance for any state seeking to be a global power. WW1 and WW2 brought this importance into sharp focus, and it remained in sharp focus throughout the Cold Warand so it remains today even with the Russia-West conflict in Ukraine. [5: Anghie [n2] 141.] [6: Anghie [n2] 141.] [7: President Woodrow Wilson's Fourteen Points 8 January 1918.]

The Mandate System that developed in the 20th century was meant to turn states into wards of colonial powers. Indeed, international law has been little more than a set of rules written, implemented, and interpreted by colonial powers. Thus, Anghie writes that the positivist international law of conquest, which the League jurists sought to displace, had been directed toward extinguishing and invalidating the legal systems of non-European peoples and endorsing their replacement with the systems of law established by the colonizers.[footnoteRef:8] Through the establishment of international tribunals, Western states masked their true colonial intentions behind a well-meaning front: in this way, the universalizing...

…is not the course of international law that aids small states but rather the fact that the rival Powers will support them against another Power in order to prevent a rival from gaining too much dominance. One sees this plainly enough in the stance that China has taken in supporting Russia against Western sanctions over the Ukraine situation. [29: Colby [n26] 281.] [30: Carty A., The Decay of International Law (1986) 5.] [31: Anand R., Attitude of the Afro-Asian States Towards Certain Problems of International Law, 15 ICLQ (1966) 35.]

Conclusion

Colonialism has been inscribed into international law; international law in the 20th century was an attempt to hide colonialism beneath a veneer of liberal progressivism. The Mandate System was implemented to replace classical positivist international law, as it justified colonial powers maintaining their hold over smaller states and the resources therein. The only reason the Mandate System was given up on was that indigenous peoples pushed back and caused more trouble for the colonizing state than was necessarily worth the cost. This did not stop colonial powers from continuing to push for empire expansion, however. When the law fails to provide the powers with a path toward what they want, they resort to war. Two world wars were fought in the 20th century because international law failed to win the colonial powers the control they sought to maintain. International law and war are extensions of politics. If international forums like the UN today have given smaller, less powerful states a stage upon which they can be heard, it is simply a convenient way for rival powers to block the geopolitical ambitions of one another. When these forums get in the way of said ambitions, war breaks outfor international forums like international law are merely tools of empire: they are not constraints.

Bibliography

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