Civilization and the Mandate System under the League of Nations as Origin of Trusteeship

Max Planck Yearbook of United Nations Law

Volumn 9, Issue , 2005, Pages 47-96

  Matz, Nele ^a  

^a NONE

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EID: 77956539848     PISSN: 13894633     EISSN: None     Source Type: Book Series    
DOI: 10.1163/187574105x00039     Document Type: Article

References (117)

1. 1 Although often used interchangeably in legal and political writing on the issue, state-building and nation-building differ according to their relevant objects, their purposes and the means employed to achieve the relevant aims. See the contribution by A. von Bogdandy et al., in this Volume.
2. 2 This, however, does not mean that colonialism in the broader sense of foreign authority over non-self governing territories had ended completely. Yet, in contrast to the era of colonialism the circumstances as well as international perception of such administration are different, particularly because of the general recognition of a right to self-determination for all peoples, and cases of foreign administration are considerably fewer.
3. 3 Report of the High-level Panel on Threats, Challenges and Change – A More Secure World: Our Shared Responsibility, Doc. A/59/565, para. 299.
4. 4 Ibid. As a consequence of this recommendation, it is questionable whether a proposal made by the Secretary-General in 1997, Report of the Secretary-General – Renewing the United Nations: A Programme for Reform, Doc. A/51/950, will be pursued in the future. In para. 85 of this report the Secretary-General had recommended the possible transformation of the Trusteeship Council into a forum through which Member States could exercise collective trusteeship for the global environment.
5. 5 E.g. the General Treaty for the Re-Establishment of Peace between Austria, France, the United Kingdom, Prussia, Sardinia, Turkey and Russia, the so called “Treaty of Paris”, 1856, CTS Vol. 114, 409 et seq., that created the European Danube Commission. On further examples before and after World War I see B. Deiwert, “A New Trusteeship for World Peace and Security: Can an Old League of Nations Idea be Applied to a Twenty-first Century Iraq?”, Ind. Int’l & Comp. L. Rev. 14 (2004), 771 et seq. (781 et seq.).
6. 6 The existing literature on the League of Nation’s Mandate System is extensive and ranges from a large number of early monographies such as Q. Wright, Mandates under the League of Nations, 1930, which must be considered the most comprehensive work in this field; D. Hall, Mandates Dependencies and Trusteeship, 1948; C.L. Upthegrove, Empire by Mandate, 1954; to more recent articles that attempt to analyze different aspects of the system, e.g. A. Anghie, “Colonialism and the Birth of International Institutions: Sovereignty, Economy, and the Mandate System of the League of Nations”, N.Y.U.J. Int’l L.& Pol. 34 (2001), 513 et seq. This paper does not aim to examine the body of literature on mandates in toto. It shall rather serve as an introduction to and explanation of the developments of how the international community has been dealing with non-self-governing territories from the former colonies to the current situations in Kosovo or Iraq respectively.
7. 7 F. Ermacora, “Mandates”, in: R. Wolfrum (ed.), United Nations: Law, Policies and Practice, 1995, 871 et seq. (871).
8. 8 For a more detailed overview see Deiwert, see note 5, 773 et seq.
9. 9 See e.g. Deiwert, see note 5, 773 et seq. On political trusteeship models and their conceptions see also H.H. Perritt, “Structures and Standards for Political Trusteeship”, UCLA J. Int’l L. & For. Aff. 8 (2002), 385 et seq.
10. 10 Perritt, see above, 396.
11. 11 The establishment of the Mandate System can be classified as a cornerstone that marks the end of the second phase of the history of colonization, colonial rule and its gradual decline. The first significant event in the history of colonial rule was the Berlin West Africa Conference that consisted of a series of negotiations held between November 1884 and February 1885. The third phase is marked by the entry into force of the UN Charter in 1945.
12. 12 Upthegrove, see note 6.
13. 13 D. Rauschning, “Mandates”, EPIL III (1997), 280 et seq. (280).
14. 14 To justify colonial rule over the Philippines, the United States claimed not to pursue economic and imperial interests, but to assist the peoples with development on various levels. Such reasons for foreign government were repeated in the context of the Mandate System, although, as will be shown in particular in regard to class C mandates, the line between foreign assistance with the administration of a peoples’ territory and colonial rule is often difficult to draw.
15. 15 President Wilson elaborated a program of the so-called “Fourteen Points” that dealt with the establishment of a system of world peace and called for inter alia diplomacy, restrictions to armament, disarmament, unrestricted trade and freedom of navigation and the creation of a “league of nations”. Although Wilson’s ideas were to some extent pursued with the establishment of the League of Nations, his further requests only found a weak reflection in the League’s political and legal outset.
16. 16 The joint declaration known as the Atlantic Charter, 1941, is accessible online at , last visited 6 March 2005.
17. 17 P. Baker, “The Making of the Covenant from the British Point of View”, in: P. Munch (ed.), Les Origines et l’Œvre de la Societé des Nations, Vol. II, 1959, 16 et seq., (55 et seq.) states that there was no reason to explain why the question of mandates was considered of primary importance for a new order of peace and stability, since it was “universally agreed by all thinkers and politicians that rivalry in securing political control and trade privileges in backward parts of the world has been a prolific cause of international misunderstanding and trouble”.
18. 18 In his publication “The League of Nations – A Practical Suggestion”, which became known as the “Smuts Plan”, reprinted in: D.H. Miller, The Drafting of the Covenant, Vol. 2, 1928, 23 et seq., Smuts made the first concrete plans for trusteeship.
19. 19 As Smuts stated in the “Smuts Plan”, ibid., 28, “the German colonies in the Pacific and Africa are inhabited by barbarians, who not only cannot possibly govern themselves, but to whom it would be impracticable to apply any idea of political self-determination in the European sense”.
20. 20 League of Nations, Pacte de la Societé des Nations/ Covenant of the League of Nations, 1932; an online version of the document in English is accessible at , last visited 6 March 2005.
21. 21 Anghie, see note 6, 568.
22. 22 CTS Vol. 225, 188 et seq.
23. 23 Some territories formerly under Turkish rule, e.g. Armenia and Kurdistan, never became mandates.
24. 24 Article 22 is reprinted as an Annex to this article.
25. 25 Article 22 para. 4 Covenant relates to the former Ottoman colonies that are perceived as developed enough to only require some assistance by a Mandatory until “they are able to stand alone” and recognizes their independence on a provisional basis. Yet, the distinction between different territories and different degrees of self-determination has rightly been criticized as inconsistent and arbitrary, see D. Raič, Statehood and the Law of Self-Determination, 2002, 196.
26. 26 Declaration on the Granting of Independence to Colonial Countries and Peoples, A/RES/1514 (XV) of 14 December 1960.
27. 27 Ermacora, see note 7, 871.
28. 28 T.M. Franck, The Power of Legitimacy among Nations, 1990, 160.
29. 29 On the link between sovereignty and civilization and the struggle of European legal and political thinkers to modify the definition of sovereignty in order to prevent recognition of certain African kingdoms that would otherwise fulfil the criteria for sovereign states and, hence, would qualify as members of the family of nations, see A. Anghie, “Finding the Peripheries: Sovereignty and Colonialism in Nineteenth-Century International Law”, Harv. Int’l L. J. 40 (1999), 1 et seq. (25 et seq.).
30. 30 Particularly in the Pacific region several small island territories are administered by foreign authority, e.g. Tokelau that is administered by New Zealand. On the neglected issue of “anachronistic colonial domination” over such micro-territories see Y. Collart, “La Societé des Nations et le colonialisme – Le Mandat international: Une vielle idée pour demain?”, in: The League of Nations in Retrospect – Proceedings of the Symposium, 1983, 384 et seq.
31. 31 See note 26.
32. 32 The latest resolution on the issue is A/RES/59/136 of 10 December 2004.
33. 33 See the Decision by the High Court of Australia in Mabo and others v. Queensland (no. 2), 1992, HCA 23.
34. 34 An online version of the Declaration of Independence of the thirteen colonies can be accessed at , last visited 6 March 2005.
35. 35 An English online version of the French Declaration of the Human Rights can be accessed at , last visited 6 March 2005.
36. 36 Reprinted in J.A.S. Grenville, The Major International Treaties 1914 – 1973: A History and Guide with Texts, 1974, 57 et seq. Wilson was aware that colonialism would not be abolished on a short term basis. Consequently, he called for an – at least – “free, open-minded, and absolutely impartial adjustment of all colonial claims” that took into account the interest of the population concerned; to be found in his point No. Five of the Fourteen Points.
37. 37 On the relation between Wilson’s Fourteen Points and the later Covenant see also W. Schücking/ H. Wehberg, Die Satzung des Völkerbundes, Vol. 1, 1931, 21 et seq.
38. 38 Raič, see note 25, 189.
39. 39 C.E. Toussaint, The Trusteeship System of the United Nations, 1956, 5.
40. 40 Ibid.
41. 41 8 Wheat. 543 (1823).
42. 42 On the linkage between concepts of state sovereignty and inequality in international law see B. Kingsbury, “Sovereignty and Inequality”, EJIL 9 (1998), 599 et seq.
43. 43 L. Oppenheim, International Law, Vol. 1, 1905, 101.
44. 44 In recent times, however, this principle has been questioned from the perspective of legitimacy and representation of people. In some fields of international relations, e.g. in the realm of voting procedures in international financing, the principle “one state – one vote” that is a result of the principle of equality of sovereign states has been modified to provide for enhanced fairness and legitimacy.
45. 45 Oppenheim, see note 43, 160 et seq.
46. 46 On statehood and personality in international law in relation to a right to self-determination see Raič, see note 25.
47. 47 On the relevance and historical development of the principle of recognition see G. Abi-Saab, “International Law and the International Community: The Long Road to Universality”, in: R.St. Macdonald (ed.), Essays in Hon-our of Wang Tieya, 1993, 31 (36 et seq.).
48. 48 Anghie, see note 29.
49. 49 Kingsbury, see note 42, 605.
50. 50 G.W. Gong, The Standard of ‘Civilization’ in International Society, 1984, 3.
51. 51 On the issue see also O. Yasuaki, “When was the Law of International Society Born? - An Inquiry of the History of International Law from an Intercivilizational Perspective”, J. History Int’l L. 2 (2000), 1 et seq. (3 et seq.).
52. 52 See Kingsbury, see note 42, 607.
53. 53 E.g. in the separate opinion of ICJ Vice-President Ammoun in the case Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) Notwithstanding Security Council Resolution 276 (1970), ICJ Reports (1971), 16 et seq. (67 et seq.).
54. 54 Kingsbury, see note 42, 605.
55. 55 Abi-Saab, see note 47, 36 et seq.
56. 56 Gong, see note 50, 238.
57. 57 Ibid., 98.
58. 58 Abi-Saab, see note 47, 37.
59. 59 See ibid., 38 for further categories and references to late 19th century sources.
60. 60 In the late 19th and early 20th century shows with “exotic” people were a great success throughout Europe. The German zoo Hagenbeck in Hamburg, for example, held more than 60 so-called “Völkerschauen”. In these shows members of African, South-American and other native peoples performed “tribal dances” or were exhibited in their allegedly normal surroundings performing their daily chores to the fascination of the public. In accordance with the fashion of the time, shows were often provided with an alleged scientific background to attract an even greater audience. On the history and setting of these shows see inter alia H. Thode-Arora, Für fünfzig Pfennig um die Welt – Die Hagenbeckschen Völkerschauen, 1989; L. Dittrich/ A. Rieke-Müller, Carl Hagenbeck (1844-1913) – Tierhandel und Schaustellungen im deutschen Kaiserreich, 1998.
61. 61 UNCIO Vol. 15, 355 et seq.
62. 62 LNTS Vol. VI No. 170, Statute.
63. 63 D.P. Fidler, “The Return of the Standard of Civilization”, Chi. J. Int’l L. (2001), 137 et seq. (138).
64. 64 W. Heintschel von Heinegg, in: K. Ipsen, Völkerrecht, 2004, §17, para. 2.
65. 65 On this issue see Fidler, see note 63, 137 et seq.
66. 66 Ibid., 139.
67. 67 On the distinction between different models of direct administration after the foundation of the United Nations either as Direct Administration by the United Nations or as Direct Administration by UN Member States see E. de Wet, “The Direct Administration of Territories by the United Nations and its Member States in the Post Cold War Era: Legal Bases and Implications for National Law”, Max Planck UNYB 8 (2004), 291 et seq.
68. 68 In contrast thereto, the UN Charter crafted an idea of direct international government into its Article 81. Under this provision the United Nations could act as a potential Administrating Authority within the Trusteeship System.
69. 69 Technically it was for most territories not even a re-establishment of sovereignty but its first exercise, particularly because colonial powers arbitrarily drew borders of territories that had nothing in common with ethnic groups or societies inhabiting the land. When these borders were affirmed by the borders of the mandated territories they comprised societies that had formerly never exercised sovereignty as one people.
70. 70 Franck, see note 28, 160.
71. 71 For the distribution of mandates and figures concerning the area of the territories and their population (as of 1938) see Hall, see note 6, 295.
72. 72 In both cases parts of the territories were mandated to the United Kingdom and others to France.
73. 73 Ermacora, see note 7, 872.
74. 74 Infra at III. 4.
75. 75 Reprinted in Hall, see note 6, 314 et seq.
76. 76 S. Slonim, South West Africa and the United Nations: An International Mandate in Dispute, 1973, 47.
77. 77 On the mandate and later UN involvement see inter alia Slonim, ibid. 76; G.M. Cockram, South West African Mandate, 1976; I. Sagay, The Legal Aspects of the Namibian Dispute, 1978. For a fuller picture on Namibia’s final independence and the role of the numerous political actors involved see e.g. V.J. Belfiglio, “The Issue of Namibian Independence”, African Affairs 78 (1979), 507 et seq.; S. Soni, “Regimes for Namibia’s Independence: a Comparative Study”, Colum. J. Transnat’l L. 29 (1991), 563 et seq.
78. 78 Preamble to the Mandate for German South West Africa, reprinted in Slonim, see note 76, 369 et seq.
79. 79 A/RES/2372 (XXII) of 12 June 1968.
80. 80 Namibia was admitted to membership of the United Nations on 23 April 1990.
81. 81 See note 78.
82. 82 Ermacora, see note 7, 875. This difficulty, although it became most apparent in the case of Namibia, was shared by other class C mandates as well. The mandate for the German Possessions in the Pacific Ocean Lying North of the Equator, reprinted in Hall, see note 6, 307 et seq., that concerns those Pacific islands brought under Japanese authority after World War I is formulated in equally sparse and ambiguous words, in fact, article 2 of the Japanese mandate uses in its relevant parts exactly the same wording as article 2 of the mandate for German South West Africa.
83. 83 Ermacora, see note 7, 875.
84. 84 Belfiglio, see note 77, 507.
85. 85 See e.g. A/RES/141 (II) of 1 November 1947. The ICJ, in its first Advisory Opinion dealing with Namibia, later held that there was no obligation by South Africa to enter into a trusteeship agreement with the United Nations, see International Status of South West Africa, ICJ Reports 1950, 128 et seq. (139 et seq. and 144).
86. 86 On the different positions see A/RES/337 (IV) of 6 December 1949.
87. 87 See e.g. International Status of South West Africa, ICJ Reports 1950, 128 et seq.
88. 88 In its relevant part, the article reads as following: “The Mandatory agrees that, if any dispute whatever should arise between the Mandatory and another Member of the League of Nations relating to the interpretation or the application of the provisions of the Mandate, such dispute, if it cannot be settled by negotiation, shall be submitted to the Permanent Court of International Justice provided for by Article 14 of the Covenant of the League of Nations.”
89. 89 South West Africa, Second Phase, ICJ Reports 1966, 6 et seq., particularly paras 15 et seq.
90. 90 A/RES/2145 (XXI) of 27 October 1966.
91. 91 As to the composition of the Council, see D.S. Haase, “Namibia Council”, in: Wolfrum, see note 7, 1995, 914 et seq.
92. 92 S/RES/264 (1969) of 20 March 1969 and S/RES/269 (1969) of 12 August 1969.
93. 93 S/RES/276 (1970) of 30 January 1970.
94. 94 Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), ICJ Reports 1971, 16 et seq.
95. 95 Ibid., para. 133.
96. 96 Belfiglio, see note 77, 512.
97. 97 Ibid., 513.
98. 98 See A/RES/31/146 of 20 December 1976.
99. 99 For an overview see E. Klein, “Namibia”, EPIL III (1997), 485 et seq. (488 et seq.).
100. 100 S/RES/385 (1976) of 30 January 1976 that called for such elections was passed by an unanimous vote.
101. 101 On SWAPO’s role in the process of independence and its relationship with the United Nations see Klein, see note 99, 489 and Belfiglio, see note 77, 507 et seq.
102. 102 This condition for Namibia’s independence was originally initiated by the US President Ronald Reagan in 1981, who wanted to link the two issues to settle the question of Cuban forces in Angola, and found, quite naturally, South Africa’s appraisal, F. Ansprenger, Freie Wahlen in Namibia – Der Übergang zur staatlichen Unabhängigkeit, 1991, 22.
103. 103 Soni, see note 77, 565.
104. 104 Doc. S/20325. An online version of the agreement can be accessed at , last visited on 6 March 2005.
105. 105 Previous attempts to hold elections that were initiated by political groups operating in Namibia were not recognized due to a lack of freedom and fairness of procedures.
106. 106 See Belfiglio, see note 77, 507
107. 107 Different Deiwert, see note 5, 779, who claims that the Mandate System was terminated at this time.
108. 108 See above note 16.
109. 109 Deiwert, see note 5, 779.
110. 110 Ibid., 777.
111. 111 Ibid., 777 et seq.
112. 112 Ibid., 778.
113. 113 Whether accountability should not foremost be owed to the people living in the administered territory is a question to be distinguished from the accountability in relation to the organization approving the administration, e.g. the United Nations or in early times the League of Nations.
114. 114 Perritt, see note 9, 471 et seq.
115. 115 Deiwert, see note 5, 802.
116. 116 If the people chose to transfer authority to a foreign or international institution, its exercise is not problematic. This was the case e.g. in Cambodia where the UN Transitional Authority in Cambodia (UNTAC) was mandated with duties including foreign affairs, finance and defence. See also the contribution by L. Keller in this Volume.
117. 117 The lack of clarity in operations with a view to potential self-interest of the involved states has been critized by S. Chesterman, You, the People, 2004, 12, who states that: “For all their reprehensible elements, colonial forms of administration were at least clear about this relationship.”