More new approaches

Ho hum. Today I’ll continue with my conference blogging (although for the uninitiated fear not – as I have a big ‘left and war crimes’ post brewing in my head). The summaries for a lot of this are going to be short, because I’m not really in the business of imparting technical legal knowledge through this blog.

Ralph Wilde: The Legitimacy of Trusteeship in the Post-colonial Era of Self-Determination
Surprisingly (given his CV and his book) I have never heard of Ralph Wilde before, this being said the substance of his work seems to be pretty interesting. Essentially Wilde argues that a general concept of ‘trusteeship’ can be traced across the law. The basic meaning of this concept is where an administrator (whether a nation or an international body) controls an area of territory which is not its ‘own’. This is usually owing to a lack of sovereignty in the trust territory, viz. its purported inability to effectively govern itself. Wilde argues that trusteeship is structured by a tension between (what criminal lawyers would call) welfare and autonomy. Thus, on the one hand it is argued that international trusteeship can be beneficial to the territory, but on the other hand it is argued that the value of independence or self-governance is important independent of its consequences.

Historically, such projects represented the actualisation of the civilising mission – as in the case of the League of Nations Mandate System – and illustrated its fundamental logic, that non-European states were too ‘backwards’ to govern themselves. Thus, any instance of international trusteeship must try and distance itself from this anti-colonial/self-determination critique if it is to gain any legitimacy. In connection with this (and in what was to be a recurring move in the conference) Wilde invoked Anghie, who argues that the colonial legacy constantly resurfaces in the law. Obviously, were this to be the case, one can see exactly how trusteeship might represent a continuation in this trend.

International trusteeship attempts to distance itself from this critique (and thus legitimise itself) through the idea that international bodies are selfless and unexploitative because they don’t have any distinctive interests. It is thus necessary to address this argument head on. Ignatieff calls ‘nation-building’ (which is the primary modern form of international trusteeship) ‘empire-lite’ as although it is not concerned with ‘taking over’ the territory it is concerned with creating order in the ‘border-zones’ of great powers. Thus, in this instance humanitarian concerns are mapped onto those of self-interest. Ignatieff argues that this is the defining feature of these missions, and shows their pragmatic nature. But this argument is not a new one, Lord Lugard – theorist (and advocater) of the Mandate System – pioneered the idea of a dual mandate. In this theory it was accepted that whilst the European countries stood to gain much from the Mandate system, so too did the mandated territories, which were civilised through the process.

But – of course – as Wilde argues this would seem to suggest that the United Nations is entrenching global equality. In this respect it is important to understand that nation-building takes place mainly at the behest of the United Nations Security Council. The Security Council is – as we all know – essentially a great powers club, which would seem to explain why this dynamic takes place. But what Wilde then asked us was ‘should we result to essentialism?’ (although I tend to agree with Nate that a strategy of ‘anti-essentialism’ can be self-defeating), instead perhaps the dual mandate theory dismisses both the humanitarian and the imperial argument

Ignatieff argues that democratic empires (of which such trusteeships are an example) are always short lived, this tends to be linked to the universal values that ‘democracy’ promotes. But of course even if we accept the ‘universality’ of these values, once this is combined with the self-motivated nature of these acts then suddenly things tend to resemble the civilising mission. On this reading such missions are simply alibis for domination that allow the transmission of norms from the core to the periphery.

I agree with most of what Wilde said – although I would want it formulated in starker terms. One problem I think I do have is the rigid counterposing of self-determination to trusteeship. Historically, one of the animating purposes of the Mandate System was to secure self-governance for the native populations. Thus – as Ruth Gordon has noted – the only plausible model of ‘self-determination’ of non-European states following WW1 was through the Mandate System. It should also be remembered that this system was essentially carried through into the UN Charter. I would especially emphasise these connections so as to doubt the essentially progressive character of self-determination, which I view (on some levels at least) as itself a way of articulating European norms in the non-European peripheries. Secondly, I would have liked to have seen some analysis of the (sadly overlooked in this conference) excellent work of Balakrishnan Rajagopal. In his International Law from Below one of the really important arguments he advances is that international institutions are systemically thrown up through the ‘instrument effects’ of human rights law. Thus, the resistance of people is transformed into human rights law, which creates an international bureaucracy. But Rajagopal further argues that this bureaucracy develops a distinctive set of its own interests and constantly strives to reproduce its own reality. This would cast interesting light on the particular character of international trusteeship. Thirdly, I didn’t really see the point in criticising essentialism (which I find to be one of the most boring postmodern tropes), when it didn’t really seem to serve much role in the argument. This is especially because ‘essentialism’ can be perfectly warranted if one can find causal mechanisms that explain why something is an ever-present factor or possibility in a given conjuncture.

I won't bother going through Colin Warbrick's and Anna Lacourt's stuff, as they were both quite technical-legal (if interesting) discussions of Kosovo.