Mandate for Palestine aka Israel
Civilization
and the Mandate System under the League of Nations as Origin of Trusteeship
Nele Matz
I. The Origin of Trusteeship Concepts in
International Law: Introduction
II. From Colonial Rule to Mandates:
Perspectives on Colonization and
Decolonization
1. The
End of World War I
2.
Colonial Rule and International Law
a. Colonialism and the Right to
Self-Determination at the Time of
the League of Nations
the League of Nations
b. The Linkage between Sovereignty and
Civilization in 19th and
early 20th Century Theory and Practice
early 20th Century Theory and Practice
c.
Approaches to Different Standards of Civilization
d.
Implications for Current Policies
III.
Structure and Function of the Mandate System
1.
Governing Principles: Non-Annexation and “Sacred Trust”
2.
Establishment and Classification of Mandates
3. The
Main Institutional Features of the Mandate System
4. The
Example of German South West Africa (Namibia)
a. The Controversy about the Status of Namibia
as a Mandated
Territory: The Question of Sovereignty
Territory: The Question of Sovereignty
b. The
Termination of the Mandate
c.
Namibia’s Independence
d.
UNTAG as a Model for State-Building?
e. League of Nations and UN involvement in the
Issue of Namibia:
A Brief Conclusion
A Brief Conclusion
IV.
From Mandates to Trusts
V.
Conclusions: Are there Lessons to be Learnt from the Mandate System?
1.
Institutional Conditions
2. The
Legal Dimension
3.
Perceptions of Foreign Authority and Ressentiments
Annex: Article 22 Covenant of the League of Nations
A. von Bogdandy and R. Wolfrum, (eds.),
Max
Planck Yearbook of United Nations Law, Volume 9, 2005, p. 47-95. © 2005 Koninklijke Brill N.V. Printed in The
Netherlands.
48 Max
Planck UNYB 9 (2005)
I. The Origin of Trusteeship
Concepts in International
Law: Introduction
Law: Introduction
The Trusteeship
System of the United Nations as established by Chap-
ter XII and XIII of the UN Charter was designed as a mechanism to
safeguard stability in a territory’s transitional process of attaining self-
governance. The importance of stability in state-building and nation-
building processes1 and the fundamental difficulties experienced when
attempting to compel a Western understanding of democracy on socie-
ties with a distinct history, different cultural values and religious beliefs
is inter alia reflected by the present situations in Afghanistan and Iraq.
ter XII and XIII of the UN Charter was designed as a mechanism to
safeguard stability in a territory’s transitional process of attaining self-
governance. The importance of stability in state-building and nation-
building processes1 and the fundamental difficulties experienced when
attempting to compel a Western understanding of democracy on socie-
ties with a distinct history, different cultural values and religious beliefs
is inter alia reflected by the present situations in Afghanistan and Iraq.
Despite long years of struggle to establish self-government and de-
mocracy either in states in which the former government was over-
thrown by armed conflict or in territories that were former colonies,
the UN Trusteeship System is to some extent a victim of its own suc-
cess. With the independence of Palau, the last UN Trust Territory, on 1
October 1994 the Trusteeship Council suspended operation a month
later.2 One of the recommendations made by the High-level Panel on
Threats, Challenges and Change in its report on the reform of collective
security and the UN proposes the deletion of Chapter XIII, i.e. the fi-
nal and formal abolition of the Trusteeship Council.3 As the reason for
this recommendation the High-level Panel states that the Trusteeship
Council assisted with ending the era of colonialism and steered many
successful cases of decolonization, but that it was time for the United
Nations to formally turn its back on any references to colonialism and
mocracy either in states in which the former government was over-
thrown by armed conflict or in territories that were former colonies,
the UN Trusteeship System is to some extent a victim of its own suc-
cess. With the independence of Palau, the last UN Trust Territory, on 1
October 1994 the Trusteeship Council suspended operation a month
later.2 One of the recommendations made by the High-level Panel on
Threats, Challenges and Change in its report on the reform of collective
security and the UN proposes the deletion of Chapter XIII, i.e. the fi-
nal and formal abolition of the Trusteeship Council.3 As the reason for
this recommendation the High-level Panel states that the Trusteeship
Council assisted with ending the era of colonialism and steered many
successful cases of decolonization, but that it was time for the United
Nations to formally turn its back on any references to colonialism and
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 This, however, does not mean that colonialism in the broader sense of for-
eign authority over non-self governing territories had ended completely.
Yet, in contrast to the era of colonialism the circumstances as well as inter-
national perception of such administration are different, particularly be-
cause of the general recognition of a right to self-determination for all peo-
ples, and cases of foreign administration are considerably fewer.
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.
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 This, however, does not mean that colonialism in the broader sense of for-
eign authority over non-self governing territories had ended completely.
Yet, in contrast to the era of colonialism the circumstances as well as inter-
national perception of such administration are different, particularly be-
cause of the general recognition of a right to self-determination for all peo-
ples, and cases of foreign administration are considerably fewer.
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.
Matz, Civilization and the Mandate System under
the League of Nations 49
to counter any
potential attempts to return to such mentalities by abolishing the Trusteeship Council.4
Nevertheless, the experiences made with UN trusts may serve either as examples of how to assist a nation with the
establishment of stable structures of
democratic self-governance or of what mistakes should be avoided. However, to draw practical
conclusions for the future of statebuilding, it is important to also examine the historical development of the administration of territories on the way
to eventual self-government prior to the foundation of the United Nations.
The UN trusteeship approach was not the first attempt undertaken
by the international community to stabilize emerging states in times of
their establishment, particularly, in the process of decolonialization. In
addition to some approaches to international territorial administration
prior to World War I,5 the League of Nations elaborated a so-called
“Mandate System” to govern non-self-governing entities and to super-
vise powers performing colonial and post-colonial administration in
such territories.6
by the international community to stabilize emerging states in times of
their establishment, particularly, in the process of decolonialization. In
addition to some approaches to international territorial administration
prior to World War I,5 the League of Nations elaborated a so-called
“Mandate System” to govern non-self-governing entities and to super-
vise powers performing colonial and post-colonial administration in
such territories.6
4 Ibid. As a consequence of this recommendation, it is
questionable whether
a proposal made
by the Secretary-General in 1997, Report of the SecretaryGeneral - 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 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 Se-
curity: 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.).
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 Se-
curity: 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 The existing literature on the League of Nation’s Mandate
System is exten-
sive and ranges
from a large number of early monographies such as Q.
Wright, Mandates under the League of Nations, 1930, which must be con-
sidered the most comprehensive work in this field; D. Hall, Mandates De-
pendencies 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 Institu-
tions: 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
Wright, Mandates under the League of Nations, 1930, which must be con-
sidered the most comprehensive work in this field; D. Hall, Mandates De-
pendencies 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 Institu-
tions: 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
50 Max
Planck UNYB 9 (2005)
The main underlying philosophy of the Mandate System itself can
be traced back to the trusteeship concept established under British law
and is to a certain extent analogous to the concept of tutelage or guardi-
anship known from private law.7 In international relations the idea of
administering over-sea territories as trusts developed mainly in regard
to British colonial policy during the late 18th century and was more
widely explored during the 19th century.8 The question whether differ-
ent models for political trusteeship offer solutions to current difficul-
ties, e.g. with regard to the governance of so-called “failed states” has
resurfaced in recent years.9
be traced back to the trusteeship concept established under British law
and is to a certain extent analogous to the concept of tutelage or guardi-
anship known from private law.7 In international relations the idea of
administering over-sea territories as trusts developed mainly in regard
to British colonial policy during the late 18th century and was more
widely explored during the 19th century.8 The question whether differ-
ent models for political trusteeship offer solutions to current difficul-
ties, e.g. with regard to the governance of so-called “failed states” has
resurfaced in recent years.9
The experiences with the League of Nations Mandate System as one
of the first international concepts of political trusteeship modeled on a
common law trust serve as a background to the UN Trusteeship Sys-
tem. To some extent the Trusteeship System was a “natural evolution”10
of the Mandate System. Due to the historical setting at the times of their
respective creation, the two systems differ in regard to their more spe-
cific aims. While the Mandate System cannot be analyzed without tak-
ing into account the colonial realities at that time and closely related al-
legations that some societies were not yet developed or civilized enough
to determine their political fate by themselves, the Trusteeship System
in times of its operations understood itself as a stabilizing, albeit only
temporary institution to assist with the establishment of structures for
self-government, without denying the general capacity of and right to
self-determination.
of the first international concepts of political trusteeship modeled on a
common law trust serve as a background to the UN Trusteeship Sys-
tem. To some extent the Trusteeship System was a “natural evolution”10
of the Mandate System. Due to the historical setting at the times of their
respective creation, the two systems differ in regard to their more spe-
cific aims. While the Mandate System cannot be analyzed without tak-
ing into account the colonial realities at that time and closely related al-
legations that some societies were not yet developed or civilized enough
to determine their political fate by themselves, the Trusteeship System
in times of its operations understood itself as a stabilizing, albeit only
temporary institution to assist with the establishment of structures for
self-government, without denying the general capacity of and right to
self-determination.
Although from our perspective today the Mandate System seems in-
separably linked to the general policies of colonialism and to such colo-
nial mentalities in particular that survived the first attempts to end co-
lonial rule over certain territories between the two World Wars, the
analysis of certain elements might shed some light on today’s success
separably linked to the general policies of colonialism and to such colo-
nial mentalities in particular that survived the first attempts to end co-
lonial rule over certain territories between the two World Wars, the
analysis of certain elements might shed some light on today’s success
serve as an
introduction to and explanation of the developments of how the
international community has been dealing with non-self-governing territo-
ries from the former colonies to the current situations in Kosovo or Iraq
respectively.
international community has been dealing with non-self-governing territo-
ries from the former colonies to the current situations in Kosovo or Iraq
respectively.
7 F. Ermacora, “Mandates”, in: R. Wolfrum (ed.), United Nations: Law, Poli-
cies
and Practice, 1995, 871 et seq. (871).
8 For a more detailed overview see Deiwert, see note 5, 773
et seq.
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 Po-
litical
Trusteeship”, UCLA J.
Int’l L. & For. Aff. 8 (2002), 385
et seq.
10 Perritt, see above, 396.
Matz, Civilization and the Mandate System under
the League of Nations 51
and failure with
state-building activities under foreign or international governance.
This paper examines the reasons for as well as the function and structure of the historical League of Nations’
Mandate System with regard to its
relevance for the UN Trusteeship System and for current state-building processes with international
involvement or under international supervision. Particular weight is put upon
the issue of civilization of peoples
in its historical, i.e. colonial and post-colonial, and modern context and its
relevance in international law.
The paper first discusses the historical development from colonial
rule to the beginning of the Mandate System (II.) and, in a second step,
the structure and function of different types of mandates (III.). In this
section, particular emphasis is put upon the international experiences
made with the administration of the territory today governed by the
state of Namibia, the former German South West Africa. This inte-
grated case-study shall serve as an illustration of the general implica-
tions as well as of a malfunctioning of the Mandate System. In the sec-
tion following the case-study the paper briefly addresses the develop-
ment from mandates to trusts after the foundation of the United Na-
tions (IV.). Some considerations on the question whether modern post-
conflict state-building can profit from the experiences with models for
political trusteeship in general and the Mandate System in particular are
summed up in the conclusions (V.).
rule to the beginning of the Mandate System (II.) and, in a second step,
the structure and function of different types of mandates (III.). In this
section, particular emphasis is put upon the international experiences
made with the administration of the territory today governed by the
state of Namibia, the former German South West Africa. This inte-
grated case-study shall serve as an illustration of the general implica-
tions as well as of a malfunctioning of the Mandate System. In the sec-
tion following the case-study the paper briefly addresses the develop-
ment from mandates to trusts after the foundation of the United Na-
tions (IV.). Some considerations on the question whether modern post-
conflict state-building can profit from the experiences with models for
political trusteeship in general and the Mandate System in particular are
summed up in the conclusions (V.).
II. From Colonial Rule to
Mandates: Perspectives on
Colonization and Decolonization
Colonization and Decolonization
It is not the
aim of this paper to give a detailed chronological overview
of colonial history and the significance of the Mandate System as a cor-
nerstone of this development.11 Instead, the following subsections at-
tempt briefly to highlight the end of World War I as the political setting
for the creation of the Mandate System by the League of Nations and
of colonial history and the significance of the Mandate System as a cor-
nerstone of this development.11 Instead, the following subsections at-
tempt briefly to highlight the end of World War I as the political setting
for the creation of the Mandate System by the League of Nations and
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, colo-
nial 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 se-
ries 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.
nial 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 se-
ries 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.
52 Max
Planck UNYB 9 (2005)
then to discuss
the various factors that enabled and required the leading
powers to establish and operate a system dealing with former colonies.
powers to establish and operate a system dealing with former colonies.
1. The End of World War I
During World War
I it was realized that the maintenance of future
peace depended to a significant extent upon an internationalization of
colonial policy.12 After the war the question what should become of the
colonies of the conquered belligerents led to controversies. To those
victorious states that were themselves colonial powers such as the
United Kingdom and France the former colonies of Germany and the
Ottoman Empire were perceived as the spoils of war to be shared
among the victors. In fact the United Kingdom, France, Russia, Japan
and Italy had already agreed separately on the allocation of the enemies’
colonies with the clear aim of annexation to enlarge their respective ter-
ritories.13 Hence, from the perspective of the victorious colonial powers
it was clear that the former German and Ottoman colonies would re-
main colonies, albeit under different sovereign authority.
peace depended to a significant extent upon an internationalization of
colonial policy.12 After the war the question what should become of the
colonies of the conquered belligerents led to controversies. To those
victorious states that were themselves colonial powers such as the
United Kingdom and France the former colonies of Germany and the
Ottoman Empire were perceived as the spoils of war to be shared
among the victors. In fact the United Kingdom, France, Russia, Japan
and Italy had already agreed separately on the allocation of the enemies’
colonies with the clear aim of annexation to enlarge their respective ter-
ritories.13 Hence, from the perspective of the victorious colonial powers
it was clear that the former German and Ottoman colonies would re-
main colonies, albeit under different sovereign authority.
The United States with their own colonial history of dependency
from the English Crown and the long and painful struggle for inde-
pendence were generally opposed to annexation of the colonial territo-
ries by the victors.14 By the United States’ political influence, particular
by President W. Wilson’s programmatic approach to establish safe-
guards for future peace,15 the idea of - if not full and immediate at least
from the English Crown and the long and painful struggle for inde-
pendence were generally opposed to annexation of the colonial territo-
ries by the victors.14 By the United States’ political influence, particular
by President W. Wilson’s programmatic approach to establish safe-
guards for future peace,15 the idea of - if not full and immediate at least
12 Upthegrove, see note 6.
13 D. Rauschning, “Mandates”, EPIL III (1997), 280 et seq. (280).
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 assis-
tance with the administration of a peoples’ territory and colonial rule is of-
ten difficult to draw.
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 assis-
tance with the administration of a peoples’ territory and colonial rule is of-
ten difficult to draw.
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.
Matz, Civilization and the Mandate System under
the League of Nations 53
eventual or
gradual - self-determination of societies and decolonization of dependent territories found its way into
the political deliberations for
post-war international relations.
Before the United Nations was founded, it was again the US Ameri-
can President F.D. Roosevelt, who proclaimed together with the British
Prime Minister W. Churchill that they would respect the right of all
people to choose the form of government they wished to live under.16
However, at the time of the foundation of the League of Nations such a
perspective was far from being a common understanding, despite first
attempts to change colonial policies. The proposed change rather fo-
cused on finding compromise between existing and potential colonial
powers to prevent possible acts of aggression against one another and
not on the liberation of peoples from foreign domination, since the is-
sue of controversy about over-sea territories was perceived a likely rea-
son for future aggression and a threat to world peace.17
can President F.D. Roosevelt, who proclaimed together with the British
Prime Minister W. Churchill that they would respect the right of all
people to choose the form of government they wished to live under.16
However, at the time of the foundation of the League of Nations such a
perspective was far from being a common understanding, despite first
attempts to change colonial policies. The proposed change rather fo-
cused on finding compromise between existing and potential colonial
powers to prevent possible acts of aggression against one another and
not on the liberation of peoples from foreign domination, since the is-
sue of controversy about over-sea territories was perceived a likely rea-
son for future aggression and a threat to world peace.17
The origins of the League of Nations and the origin of the Mandate
System are closely connected with the efforts of two men, Wilson who
proposed the League of Nations on the one hand and the South-African
General J.C. Smuts on the other. Smuts made the main proposals for the
administration of territories under the supervision of the League of Na-
tions that were to some extent incorporated into the Mandate System.18
However, originally Smuts had only envisaged a system of international
control based upon non-annexation and self-determination for those
territories formerly under domination of Russia, Austria and the Otto-
man Empire. With regard to the former German colonies Smuts op-
posed any concepts of self-determination and clearly favored annexa-
System are closely connected with the efforts of two men, Wilson who
proposed the League of Nations on the one hand and the South-African
General J.C. Smuts on the other. Smuts made the main proposals for the
administration of territories under the supervision of the League of Na-
tions that were to some extent incorporated into the Mandate System.18
However, originally Smuts had only envisaged a system of international
control based upon non-annexation and self-determination for those
territories formerly under domination of Russia, Austria and the Otto-
man Empire. With regard to the former German colonies Smuts op-
posed any concepts of self-determination and clearly favored annexa-
16 The joint declaration known as the Atlantic Charter, 1941, is accessible
online at
<http://usinfo.state.gov/usa/infousa/facts/democrac/53.htm>, last visited
6 March 2005.
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”.
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 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. 
54 Max
Planck UNYB 9 (2005)
tion.19
Most likely, South-African interests in the territory of German South West Africa, which South-Africa had
occupied in the course of the
war, played a significant role in this distinction.
The Mandate System that was developed and eventually established
by the Covenant of the League of Nations (the Covenant)20 was a com-
promise to meet a political dilemma that comprised a variety of factors.
The difficult political background to the creation of the Mandate Sys-
tem and the at least partially ambiguous response by the League of Na-
tions justifies the question whether the Mandate System was designed
to negate colonialism or to recreate it in an albeit different form and set-
ting.21
by the Covenant of the League of Nations (the Covenant)20 was a com-
promise to meet a political dilemma that comprised a variety of factors.
The difficult political background to the creation of the Mandate Sys-
tem and the at least partially ambiguous response by the League of Na-
tions justifies the question whether the Mandate System was designed
to negate colonialism or to recreate it in an albeit different form and set-
ting.21
Indeed the issue whether colonial authority should be maintained by different powers or whether some other form
of foreign government was to be
established was the crucial question after the peace negotiations at the end of World War I. Article 119
of the Versailles Peace Treaty 191922
withdrew authority over her former colonies from the German Reich by providing that:
“Germany
renounces in favour of the Principal Allied and Associ-
ated Powers all her rights and titles over her oversea possessions.”
ated Powers all her rights and titles over her oversea possessions.”
In a similar process the Ottoman Empire lost authority over her ter-
ritories in Northern Africa. In order to inter alia prevent destabilization
of the territories that were liberated from German and Ottoman colo-
nial authority but considered to be not yet capable of self-government,
the victorious powers established a kind of condominium over most of
these former colonies.23 The League of Nations created a legal basis for
agreement on administration of the relevant territories by establishing
the Mandate System in one lengthy article of their newly adopted stat-
ritories in Northern Africa. In order to inter alia prevent destabilization
of the territories that were liberated from German and Ottoman colo-
nial authority but considered to be not yet capable of self-government,
the victorious powers established a kind of condominium over most of
these former colonies.23 The League of Nations created a legal basis for
agreement on administration of the relevant territories by establishing
the Mandate System in one lengthy article of their newly adopted stat-
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 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
<http://www.ku.edu/carrie/docs/texts/leagnat.html>, last vis-
ited 6 March
2005.
21 Anghie, see note 6, 568.
22 CTS Vol. 225, 188 et seq.
23 Some territories formerly under Turkish rule, e.g. Armenia and Kurdistan,
never became mandates.
Matz, Civilization and the Mandate System under
the League of Nations 55
ute: article 22
of the Covenant.24 In its para. 1, article 22 of the Cove-
nant emphasizes as one of the core principles the well-being and devel-
opment of peoples living in those colonies that as a result of the war
have lost their former colonial sovereign as a sacred trust of civilization.
The central provision for the legal concept of the Mandate System is es-
tablished by para. 2 that refers to the notion of sacred trust:
nant emphasizes as one of the core principles the well-being and devel-
opment of peoples living in those colonies that as a result of the war
have lost their former colonial sovereign as a sacred trust of civilization.
The central provision for the legal concept of the Mandate System is es-
tablished by para. 2 that refers to the notion of sacred trust:
“The best method
of giving practical effect to this principle is that the tutelage of such peoples should be entrusted
to advanced nations who by reason of
their resources, their experiences or their geographical position can best undertake this responsibility,
and who are willing to accept it, and that
this tutelage should be exercised by them as Mandatories on behalf of the League.”
Although decolonization is not explicitly referred to, the overall
concept expressed by article 22 of the Covenant may be regarded as the
first manifestation of the ultimate goal to abrogate the colonial system
that was still being pursued by many European states. A reflection of
the goal to end colonialism is that the Mandate System does not explic-
itly promote continued or new colonial power. The circumstance that
colonial powers had to give up their legal position and transfer struc-
tures into a regulated mandate or trusteeship is one of the most impor-
tant issues in the decolonization process, although it is only a first step
on the way to self-government of formerly dependent territories. Addi-
tionally, the Mandate System distinguishes different stages of develop-
ment and links them to potential self-determination for the most devel-
oped, thus allowing a process of gradual self-government to at least
some societies.25 This first legal attempt to initiate a process of decolo-
nization later found further elaboration in Chapters XI and XII of the
UN Charter and the Decolonization Declaration of the UN General
Assembly.26
concept expressed by article 22 of the Covenant may be regarded as the
first manifestation of the ultimate goal to abrogate the colonial system
that was still being pursued by many European states. A reflection of
the goal to end colonialism is that the Mandate System does not explic-
itly promote continued or new colonial power. The circumstance that
colonial powers had to give up their legal position and transfer struc-
tures into a regulated mandate or trusteeship is one of the most impor-
tant issues in the decolonization process, although it is only a first step
on the way to self-government of formerly dependent territories. Addi-
tionally, the Mandate System distinguishes different stages of develop-
ment and links them to potential self-determination for the most devel-
oped, thus allowing a process of gradual self-government to at least
some societies.25 This first legal attempt to initiate a process of decolo-
nization later found further elaboration in Chapters XI and XII of the
UN Charter and the Decolonization Declaration of the UN General
Assembly.26
24 Article 22 is reprinted as an Annex to this article.
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 Man-
datory until “they
are able to stand alone” and recognizes their independ-
ence on a provisional basis. Yet, the distinction between different territories
and different degrees of self-determination has rightly been criticized as in-
consistent and arbitrary, see D. Raič, Statehood and the Law of Self-
Determination, 2002, 196.
ence on a provisional basis. Yet, the distinction between different territories
and different degrees of self-determination has rightly been criticized as in-
consistent and arbitrary, see D. Raič, Statehood and the Law of Self-
Determination, 2002, 196.
26 Declaration on the Granting of Independence to Colonial Countries and
Peoples, A/RES/1514 (XV) of 14 December 1960.
56 Max
Planck UNYB 9 (2005)
At the same time, the Mandate System may be perceived as an in-
strument of imperial power policy,27 because it continued the practice
of foreign rule over the former colonies based upon an assessment of
capability and civilization according to the leading states’ perspectives
on African and Asian peoples. In contrast to the formal principles one
might even state that some of the victors actually increased the size of
their overseas empires without any serious commitment to leading the
native population to obtain control over their political future.28 These
two perspectives on the same system - progress in a decolonization
process on the one hand and manifestation of imperial rule over peoples
on the other - most precisely reflect the compromise-like character of
the Mandate System. In order to better understand the further underly-
ing reasons for the establishment of mandates for government over
peoples in African and Asian territories after the end of World War I, a
variety of interrelated issues has to be discussed and put into perspec-
tive and relation, namely the relation between colonial rule and interna-
tional law, the evolution of a right to self-determination and different
standards of civilization.
strument of imperial power policy,27 because it continued the practice
of foreign rule over the former colonies based upon an assessment of
capability and civilization according to the leading states’ perspectives
on African and Asian peoples. In contrast to the formal principles one
might even state that some of the victors actually increased the size of
their overseas empires without any serious commitment to leading the
native population to obtain control over their political future.28 These
two perspectives on the same system - progress in a decolonization
process on the one hand and manifestation of imperial rule over peoples
on the other - most precisely reflect the compromise-like character of
the Mandate System. In order to better understand the further underly-
ing reasons for the establishment of mandates for government over
peoples in African and Asian territories after the end of World War I, a
variety of interrelated issues has to be discussed and put into perspec-
tive and relation, namely the relation between colonial rule and interna-
tional law, the evolution of a right to self-determination and different
standards of civilization.
2. Colonial Rule and International Law
The relationship
between colonialism and international law comprises a
variety of further legal and political issues. Definitive approaches to the
different issues have changed over time as have the relationships be-
tween them. Hence, any analysis must give special attention to the legal
and political views of the relevant time under review. In principle, a
right to self-determination of peoples is closely connected to the issue
of (state) sovereignty and discussions on both topics were, at the time
of the League of Nations, very closely tied to views on different degrees
of civilization.
variety of further legal and political issues. Definitive approaches to the
different issues have changed over time as have the relationships be-
tween them. Hence, any analysis must give special attention to the legal
and political views of the relevant time under review. In principle, a
right to self-determination of peoples is closely connected to the issue
of (state) sovereignty and discussions on both topics were, at the time
of the League of Nations, very closely tied to views on different degrees
of civilization.
The realities of colonialism at the time of the foundation of the
League of Nations cannot be discussed without examining the (Euro-
pean) opinion on different standards and forms of civilization. Neither
can the issue of decolonization be examined without referring to the
beginning universality of international law and the understanding of
state sovereignty. The issue of state sovereignty is also linked to civiliza-
tion, since the definition of sovereignty as power over a territory under
League of Nations cannot be discussed without examining the (Euro-
pean) opinion on different standards and forms of civilization. Neither
can the issue of decolonization be examined without referring to the
beginning universality of international law and the understanding of
state sovereignty. The issue of state sovereignty is also linked to civiliza-
tion, since the definition of sovereignty as power over a territory under
27 Ermacora, see note 7, 871.
28 T.M. Franck, The
Power of Legitimacy among Nations, 1990, 160.
Matz, Civilization and the Mandate System under
the League of Nations 57
a leader was
adapted to exclude (most) African and Asian societies by a reference to a necessary degree of
civilization.29
a. Colonialism and the Right to
Self-Determination at the Time of
the League of Nations
the League of Nations
In our political
relations today colonialism in the narrow sense of the
meaning seems to have been overcome, even if the foreign policy of
some states is criticized as being an expression of neo-imperialist ideas.
Nevertheless, as long as there exist non-self governing territories,30 the
United Nations continues to deal with the implementation of the De-
colonization Declaration of 1960,31 e.g. by regularly evaluating the re-
port of the Special Political and Decolonization Committee.32 The ac-
knowledgement of the general right to self-determination of peoples
and the integrity and sovereign equality of all states are the main reason
why colonial rule over territories is no longer recognized and approved
by the community of states. Instead the establishment of (new) colonial
rule by a state over a territory not part of its own and against the will of
the people of the territory would in most cases be regarded an in-
fringement of universal international law and be treated accordingly by
the UN Security Council.
meaning seems to have been overcome, even if the foreign policy of
some states is criticized as being an expression of neo-imperialist ideas.
Nevertheless, as long as there exist non-self governing territories,30 the
United Nations continues to deal with the implementation of the De-
colonization Declaration of 1960,31 e.g. by regularly evaluating the re-
port of the Special Political and Decolonization Committee.32 The ac-
knowledgement of the general right to self-determination of peoples
and the integrity and sovereign equality of all states are the main reason
why colonial rule over territories is no longer recognized and approved
by the community of states. Instead the establishment of (new) colonial
rule by a state over a territory not part of its own and against the will of
the people of the territory would in most cases be regarded an in-
fringement of universal international law and be treated accordingly by
the UN Security Council.
In our times almost all surface of the earth, with exemption of Ant-
arctica and few territories whose status is unclear, belongs to the terri-
tory of some sovereign states, even if certain borders continue to be
questioned. Consequently, any attempt by a state to establish colonial
arctica and few territories whose status is unclear, belongs to the terri-
tory of some sovereign states, even if certain borders continue to be
questioned. Consequently, any attempt by a state to establish colonial
29 On the link between sovereignty and civilization and the struggle of
Euro-
pean 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 Particularly in the Pacific region several small island territories are
adminis-
tered by foreign
authority, e.g. Tokelau that is administered by New Zea-
land. On the neglected issue of “anachronistic colonial domination” over
such micro-territories see Y. Collart, “La Societé des Nations et le colonial-
isme - Le Mandat international: Une vielle idée pour demain?”, in: The
League of Nations in Retrospect - Proceedings of the Symposium, 1983, 384
et seq.
land. On the neglected issue of “anachronistic colonial domination” over
such micro-territories see Y. Collart, “La Societé des Nations et le colonial-
isme - Le Mandat international: Une vielle idée pour demain?”, in: The
League of Nations in Retrospect - Proceedings of the Symposium, 1983, 384
et seq.
31 See note 26.
32 The latest resolution on the issue is A/RES/59/136 of 10 December 2004.
58 Max
Planck UNYB 9 (2005)
rule by
annexation of a territory belonging to another sovereign state
without consent would be a breach of the prohibition of the use of
force established by Article 2 UN Charter. In the age of colonialism all
territory not governed by a recognized nation was considered terra nul-
lius, despite the fact that it was inhabited by native peoples. The ques-
tion whether or not a territory was terra nullius when coming under the
rule of a colonial power is the same as the one concerning the relation
between certain governments and indigenous populations, e.g. in Aus-
tralia, New Zealand or the United States.
without consent would be a breach of the prohibition of the use of
force established by Article 2 UN Charter. In the age of colonialism all
territory not governed by a recognized nation was considered terra nul-
lius, despite the fact that it was inhabited by native peoples. The ques-
tion whether or not a territory was terra nullius when coming under the
rule of a colonial power is the same as the one concerning the relation
between certain governments and indigenous populations, e.g. in Aus-
tralia, New Zealand or the United States.
In the case of Australia the High Court explicitly recognized that at
the time of the discovery of the continent and the subsequent settle-
ment of people of European origin the territory had not been terra nul-
lius only because it was not governed by a recognized state.33 However,
from the perspective of recognized international law at the time before
the creation of the League of Nations the evaluation of the status of ter-
ritory inhabited by “savages” was clearly different. Not only was terri-
tory considered to be no-man’s-land, if no other European power exer-
cised governance, neither were the people recognized as societies with a
right to self-determination, despite the evolution of the principle as
such.
the time of the discovery of the continent and the subsequent settle-
ment of people of European origin the territory had not been terra nul-
lius only because it was not governed by a recognized state.33 However,
from the perspective of recognized international law at the time before
the creation of the League of Nations the evaluation of the status of ter-
ritory inhabited by “savages” was clearly different. Not only was terri-
tory considered to be no-man’s-land, if no other European power exer-
cised governance, neither were the people recognized as societies with a
right to self-determination, despite the evolution of the principle as
such.
A right to self-determination of the people and even their right to
resistance against oppression and, in the case of American independence
the right to free themselves from unjust colonial rule, had been postu-
lated by the American Declaration of Independence, of 4 July 177634
and the French Déclaration des Droits de l’Homme et du Citoyen, of
26 August 178935, however, these rights were not easily recognized uni-
versally. Even the French postulate of equal human rights for all people,
while not explicitly distinguishing between different peoples, tied the
issue of sovereignty to the nation. Nations, however, were at that time
those recognized as belonging to the family of (civilized) nations.
resistance against oppression and, in the case of American independence
the right to free themselves from unjust colonial rule, had been postu-
lated by the American Declaration of Independence, of 4 July 177634
and the French Déclaration des Droits de l’Homme et du Citoyen, of
26 August 178935, however, these rights were not easily recognized uni-
versally. Even the French postulate of equal human rights for all people,
while not explicitly distinguishing between different peoples, tied the
issue of sovereignty to the nation. Nations, however, were at that time
those recognized as belonging to the family of (civilized) nations.
Hence, it must
be presumed that while all French people and poten-
tially the other European people were considered free and equal, such a
tially the other European people were considered free and equal, such a
33 See the Decision by the High Court of Australia in Mabo and others v.
Queensland (no. 2), 1992, HCA 23.
34 An online version of the Declaration of Independence of the thirteen
colonies can
be accessed at <http://www.law.indiana.edu/uslawdocs/
declaration.html>, last visited 6 March
2005.
35 An English online version of the French Declaration of the Human Rights
can be accessed
at <http://www.elysee.fr/instit/text1.htm>, last visited 6 March 2005.
Matz, Civilization and the Mandate System under
the League of Nations 59
notion with all
their consequences for internal and external relations
was largely denied in regard to societies of a non-European origin. The
explicit reference to the right to self-determination and equal human
rights of the peoples in dependent territories in the preambles of later
French constitutions, namely the one of 1946 and 1958 further creates
doubt whether the original declaration extended to non-European so-
cieties.
was largely denied in regard to societies of a non-European origin. The
explicit reference to the right to self-determination and equal human
rights of the peoples in dependent territories in the preambles of later
French constitutions, namely the one of 1946 and 1958 further creates
doubt whether the original declaration extended to non-European so-
cieties.
At the time of the creation of the League of Nations, a right to self-
determination was first introduced into international relations by some
legal scholars and politicians, yet without general recognition. Wilson,
who referred to safety for all peace-loving nations of the world and
equal treatment of all peoples in his Fourteen Points of 8 January 191836
and elaborated on the issue in several further speeches, was not able to
achieve explicit recognition of a right to self-determination in the
Covenant.37 This failure must be qualified as significant, since many
minority groups which had believed in the promises of self-governance
as an absolute principle with which the allied powers had provoked re-
sistance to destabilize their enemies, were dissatisfied when they found
themselves excluded from the privileged categories effectively granting
self-determination.38
determination was first introduced into international relations by some
legal scholars and politicians, yet without general recognition. Wilson,
who referred to safety for all peace-loving nations of the world and
equal treatment of all peoples in his Fourteen Points of 8 January 191836
and elaborated on the issue in several further speeches, was not able to
achieve explicit recognition of a right to self-determination in the
Covenant.37 This failure must be qualified as significant, since many
minority groups which had believed in the promises of self-governance
as an absolute principle with which the allied powers had provoked re-
sistance to destabilize their enemies, were dissatisfied when they found
themselves excluded from the privileged categories effectively granting
self-determination.38
When the American and French revolutions resulted in the liberal theories of governments deriving their
legitimacy only from the consent of the governed and the supreme authority of the people, the implications for the people living under the rule of
colonial powers were at first rather
insignificant, since the European colonial powers concluded that peoples in colonial territories were incapable
of governing themselves and
benefited from the imperial power.39
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. Conse-
quently, he called for an - at least - “free, open-minded, and absolutely im-
partial 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 Four-
teen Points.
that colonialism would not be abolished on a short term basis. Conse-
quently, he called for an - at least - “free, open-minded, and absolutely im-
partial 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 Four-
teen Points.
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 Raič, see note 25, 189.
39 C.E. Toussaint, The
Trusteeship System of the United Nations, 1956, 5.
60 Max
Planck UNYB 9 (2005)
b. The
Linkage between Sovereignty and Civilization in 19th and
early 20th Century Theory and Practice
early 20th Century Theory and Practice
The rise and
decline of colonial rule just like the acknowledgement of a
right to self-determination are closely tied to the issue of civilization of
peoples. The main underlying question in this context is why colonial
authorities but also the Mandate System denied some peoples the right
to immediate self-governance and subsequent recognition as sovereign
and equal subjects of the evolving international law. In addition to eco-
nomic considerations, the spreading of Western civilization as well as of
Christianity were the main reasons for colonialism of allegedly uncivi-
lized peoples within certain territories by, particularly, Spain, Portugal,
France, the United Kingdom and the Netherlands.40 Concerning the
American continent and its native inhabitants the US Supreme Court
noted in 1823 in Johnson v. Mackintosh41 that:
right to self-determination are closely tied to the issue of civilization of
peoples. The main underlying question in this context is why colonial
authorities but also the Mandate System denied some peoples the right
to immediate self-governance and subsequent recognition as sovereign
and equal subjects of the evolving international law. In addition to eco-
nomic considerations, the spreading of Western civilization as well as of
Christianity were the main reasons for colonialism of allegedly uncivi-
lized peoples within certain territories by, particularly, Spain, Portugal,
France, the United Kingdom and the Netherlands.40 Concerning the
American continent and its native inhabitants the US Supreme Court
noted in 1823 in Johnson v. Mackintosh41 that:
“(...) the
character and religion of its inhabitants offered an apology
for considering them as people over whom the superior genius of
Europe might claim an ascendancy. The potentates of the old world
found no difficulty in convincing themselves that they made ample
compensation to the inhabitants of the new world , by bestowing on
them civilization and Christianity, in exchange for unlimited inde-
pendence.”
for considering them as people over whom the superior genius of
Europe might claim an ascendancy. The potentates of the old world
found no difficulty in convincing themselves that they made ample
compensation to the inhabitants of the new world , by bestowing on
them civilization and Christianity, in exchange for unlimited inde-
pendence.”
The general understanding by colonial powers that the spreading of
Western civilization was a benefit for the “uncivilized” peoples in the
colonial territories was only slowly and gradually overcome by a differ-
ent perception of humanity. Whereas the claim of superiority due to a
higher degree of civilization first resulted in alleged rights to civilize
and exploit territories, moral change resulted in the notion of a duty of
the civilized nations to assist and protect peoples who had not yet
reached the same level of development. Still, civilization was the main
element of distinguishing between peoples and nations and the resulting
inequality between peoples and societies was not countered but legal-
ized by international law and its recognized notion of sovereignty as a
foundation of international law.42
Western civilization was a benefit for the “uncivilized” peoples in the
colonial territories was only slowly and gradually overcome by a differ-
ent perception of humanity. Whereas the claim of superiority due to a
higher degree of civilization first resulted in alleged rights to civilize
and exploit territories, moral change resulted in the notion of a duty of
the civilized nations to assist and protect peoples who had not yet
reached the same level of development. Still, civilization was the main
element of distinguishing between peoples and nations and the resulting
inequality between peoples and societies was not countered but legal-
ized by international law and its recognized notion of sovereignty as a
foundation of international law.42
40 Ibid.
41 8 Wheat. 543 (1823).
42 On the linkage between concepts of state sovereignty and inequality in
in-
ternational law see B. Kingsbury, “Sovereignty
and Inequality”, EJIL 9
(1998), 599 et seq.
Matz, Civilization and the Mandate System under
the League of Nations 61
From the paternalistic perspective of 19th and early 20th century
political thinking, a process of decolonization meant that a society first
had to be educated to be civilized and then be granted self-
determination before it could be recognized as an equal sovereign part-
ner in international relations. While, as mentioned above, one of the
most obvious reasons for colonial power is economic interest, i.e. use of
the dependent territories for the exploitation of raw materials and as
markets for homeland goods, this was not the only reason for denying
self-government to a territory’s people. From the perspective of the co-
lonial powers pre and post World War I the question why not to grant
self-determination to peoples in their colonies was most likely an-
swered with a paternalistic notion of “they are not ready for it”. In this
context, one has to thoroughly examine for what a people must be
“ready” in order to gain self-governance, what preconditions must be
met and, first of all, who, if anyone at all, is competent to decide on
such issues. A foreign decision on preconditions for self-governance,
even if today elaborated by the United Nations, could easily come into
conflict with a peoples’ equal right to self-determination as we under-
stand it today.
political thinking, a process of decolonization meant that a society first
had to be educated to be civilized and then be granted self-
determination before it could be recognized as an equal sovereign part-
ner in international relations. While, as mentioned above, one of the
most obvious reasons for colonial power is economic interest, i.e. use of
the dependent territories for the exploitation of raw materials and as
markets for homeland goods, this was not the only reason for denying
self-government to a territory’s people. From the perspective of the co-
lonial powers pre and post World War I the question why not to grant
self-determination to peoples in their colonies was most likely an-
swered with a paternalistic notion of “they are not ready for it”. In this
context, one has to thoroughly examine for what a people must be
“ready” in order to gain self-governance, what preconditions must be
met and, first of all, who, if anyone at all, is competent to decide on
such issues. A foreign decision on preconditions for self-governance,
even if today elaborated by the United Nations, could easily come into
conflict with a peoples’ equal right to self-determination as we under-
stand it today.
A normative understanding of sovereignty at the turn of the 19th
century like today is understood to comprise independence and author-
ity in the form of supremacy over territory and supremacy over per-
sons.43 Colonies lack sovereignty by definition because they are gov-
erned and administered by another sovereign state on which they are
fully dependent. The issue of sovereignty as one of the preconditions to
become a recognized subject of international law is of vital importance
when analyzing relations between European states and non-European
territories in the 19th and early 20th century. Sovereign states, already
at the turn of the 19th century, could rely upon equality in relation to
other sovereign states.44 As Oppenheim stated:
century like today is understood to comprise independence and author-
ity in the form of supremacy over territory and supremacy over per-
sons.43 Colonies lack sovereignty by definition because they are gov-
erned and administered by another sovereign state on which they are
fully dependent. The issue of sovereignty as one of the preconditions to
become a recognized subject of international law is of vital importance
when analyzing relations between European states and non-European
territories in the 19th and early 20th century. Sovereign states, already
at the turn of the 19th century, could rely upon equality in relation to
other sovereign states.44 As Oppenheim stated:
“In entering the
Family of Nations a state comes as an equal to
equals [...]. The quality before International Law of all member-
equals [...]. The quality before International Law of all member-
43 L. Oppenheim, International
Law, Vol. 1, 1905, 101.
44 In recent times, however, this principle has been questioned from the
per-
spective of legitimacy and representation of
people. In some fields of inter-
national
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.
62 Max
Planck UNYB 9 (2005)
states of the
family of nations is an invariable quality derived from their International Personality.”45
Statehood and equality, however, as already indicated by reference
to a membership in the “family of nations” were further linked to the
prior recognition as sovereign states.46 The theory of recognition that
evolved during the 18th century and transformed into a constituent
precondition for membership in what was in 19th century language
called the “family of nations” and what in today’s terminology is
marked as the “international community” served to exclude societies
from the privilege of sovereign equality in international law.47
to a membership in the “family of nations” were further linked to the
prior recognition as sovereign states.46 The theory of recognition that
evolved during the 18th century and transformed into a constituent
precondition for membership in what was in 19th century language
called the “family of nations” and what in today’s terminology is
marked as the “international community” served to exclude societies
from the privilege of sovereign equality in international law.47
Likewise the UN Charter states in Article 2 para. 1 that “the Or-
ganization is based on the principle of the sovereign equality of all its
Members”. From this it follows, that entities that were not recognized
as Member States of the family of nations or that do not qualify for
membership in the United Nations today, could not and cannot auto-
matically benefit from recognition and equal treatment. While it be-
comes clear that sovereignty and equality in international law are
closely linked, this does not as such explain why territories were denied
membership in the family of nations even if they had political structures
that allowed territorial and personal supremacy; i.e. why they were de-
nied recognition.
ganization is based on the principle of the sovereign equality of all its
Members”. From this it follows, that entities that were not recognized
as Member States of the family of nations or that do not qualify for
membership in the United Nations today, could not and cannot auto-
matically benefit from recognition and equal treatment. While it be-
comes clear that sovereignty and equality in international law are
closely linked, this does not as such explain why territories were denied
membership in the family of nations even if they had political structures
that allowed territorial and personal supremacy; i.e. why they were de-
nied recognition.
In principle, a traditional definition of sovereignty and the resulting
right to equal treatment contradicts the circumstance that many non-
European territories were first colonized and later administered by
Mandatories, including those inhabited by societies that were politically
organized and engaging in diplomatic relations. The main reason for
denying non-European peoples and their political organization in a cer-
tain territory recognition as sovereign subjects of international law was
the introduction of civilization as an additional condition for member-
ship in the family of (civilized) nations. By this shift, civilization and
membership in the family of civilized nations became the decisive fac-
tors for the recognition of sovereign states; not because the definition of
sovereignty was modified but because civilization of society was added
right to equal treatment contradicts the circumstance that many non-
European territories were first colonized and later administered by
Mandatories, including those inhabited by societies that were politically
organized and engaging in diplomatic relations. The main reason for
denying non-European peoples and their political organization in a cer-
tain territory recognition as sovereign subjects of international law was
the introduction of civilization as an additional condition for member-
ship in the family of (civilized) nations. By this shift, civilization and
membership in the family of civilized nations became the decisive fac-
tors for the recognition of sovereign states; not because the definition of
sovereignty was modified but because civilization of society was added
45 Oppenheim, see note 43, 160 et seq.
46 On statehood and personality in international law in relation to a right
to
self-determination see Raič, see note 25.
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 Honour of Wang Tieya, 1993, 31 (36
et seq.).
Matz, Civilization and the Mandate System under
the League of Nations 63
as a
precondition to be allowed into the family of nations.48 This infor-
mal doctrine of a “membership test” that founded upon the distinction
between European and Christians and all others and that was promoted
by the Eurocentric thinking was sometimes described as the “standard
of civilization”.49 Different standards of civilization and, in this case,
the European standard of civilization were used to define societies and
states inside and societies outside a group defined by the standard.50
mal doctrine of a “membership test” that founded upon the distinction
between European and Christians and all others and that was promoted
by the Eurocentric thinking was sometimes described as the “standard
of civilization”.49 Different standards of civilization and, in this case,
the European standard of civilization were used to define societies and
states inside and societies outside a group defined by the standard.50
Hence, even if a territory would have qualified as a state according
to structures of territorial and personal supremacy, it was denied recog-
nition and equal treatment if it was not “civilized”, unless it was for the
benefit of the European authority. Despite the denial of recognition as a
sovereign and equal state, European colonial powers recognized treaties
concluded with local leaders, if they transferred sovereignty to the for-
eign authority. The contradiction between not recognizing sovereignty
due to a lack of membership in the family of civilized nations, while at
the same time referring to the establishment of legal authority due to a
transfer of sovereignty by treaty with a former leader, cannot be
solved.51 From this theoretical outset that, in practice, allowed coloni-
zation and other forms of administrative authority over “uncivilized”
societies in accordance with international law, it is a long way to grant
independence to the relevant societies and to recognize them as sover-
eign and equal members of the community of states.
to structures of territorial and personal supremacy, it was denied recog-
nition and equal treatment if it was not “civilized”, unless it was for the
benefit of the European authority. Despite the denial of recognition as a
sovereign and equal state, European colonial powers recognized treaties
concluded with local leaders, if they transferred sovereignty to the for-
eign authority. The contradiction between not recognizing sovereignty
due to a lack of membership in the family of civilized nations, while at
the same time referring to the establishment of legal authority due to a
transfer of sovereignty by treaty with a former leader, cannot be
solved.51 From this theoretical outset that, in practice, allowed coloni-
zation and other forms of administrative authority over “uncivilized”
societies in accordance with international law, it is a long way to grant
independence to the relevant societies and to recognize them as sover-
eign and equal members of the community of states.
One step in the direction of such a development was the recognition
of a right to self-determination of all peoples. The postulate of the
equality of peoples that shared a common right to self-determination
called for the formation of new states which would then in turn enjoy
the principle of equality of all states. Yet, the acknowledgement of an
equal right to self-determination for all peoples necessarily meant abol-
ishing standards of civilization. When the League of Nations was
founded, the Japanese proposal to include a clause on racial equality
that would have set the basis for self-determination of non-European
peoples was rejected and demonstrated the weak position of even the
of a right to self-determination of all peoples. The postulate of the
equality of peoples that shared a common right to self-determination
called for the formation of new states which would then in turn enjoy
the principle of equality of all states. Yet, the acknowledgement of an
equal right to self-determination for all peoples necessarily meant abol-
ishing standards of civilization. When the League of Nations was
founded, the Japanese proposal to include a clause on racial equality
that would have set the basis for self-determination of non-European
peoples was rejected and demonstrated the weak position of even the
48 Anghie, see note 29.
49 Kingsbury, see note 42, 605.
50 G.W. Gong, The
Standard of ‘Civilization’ in International Society, 1984,
3.
51 On the issue see also O. Yasuaki, “When was the Law of International So-
ciety Born? - An
Inquiry of the History of International Law from an In-
tercivilizational Perspective”, J. History Int’l L. 2 (2000), 1 et seq. (3 et
seq.).
tercivilizational Perspective”, J. History Int’l L. 2 (2000), 1 et seq. (3 et
seq.).
64 Max
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already
recognized Asian and African states in the Versailles peace process on the one hand and a profound and
general resistance to racial equality as a political or even legal principle on
the other.52
It follows from the combination of normative and informal doc-
trinal elements that, at the time of the establishment of the Mandate
System, only being a member in the allegedly civilized family of nations
together with power over a territory under the authority of a leader
could result in recognition as a sovereign state. Only those states quali-
fied as subjects of international law and hence qualified for membership
in the League of Nations, and were allowed to create and implement a
Mandate System for the well-being of the uncivilized former colonies.
It was only in retrospect that a concept of sovereignty that was inherent
in every people was referred to by some.53 The idea that mandated ter-
ritories had sovereignty but that this sovereignty was temporarily de-
prived of actual expression was not common when the Mandate System
was created but was introduced later to explain contradictions in legal
and political theory.
trinal elements that, at the time of the establishment of the Mandate
System, only being a member in the allegedly civilized family of nations
together with power over a territory under the authority of a leader
could result in recognition as a sovereign state. Only those states quali-
fied as subjects of international law and hence qualified for membership
in the League of Nations, and were allowed to create and implement a
Mandate System for the well-being of the uncivilized former colonies.
It was only in retrospect that a concept of sovereignty that was inherent
in every people was referred to by some.53 The idea that mandated ter-
ritories had sovereignty but that this sovereignty was temporarily de-
prived of actual expression was not common when the Mandate System
was created but was introduced later to explain contradictions in legal
and political theory.
c. Approaches to Different Standards of
Civilization
When setting
aside the common and “natural” understanding that
dominated 19th and early 20th century thinking that African and Asian
peoples were uncivilized, the central difficulty that remains is to define
the content of the term “civilization” or a “standard of civilization”.
Obviously, approaches to defining the meaning of civilization strongly
depend upon the time and situation, the cultural background as well as
upon philosophical considerations. In general, the understanding of
what constitutes civilization varies considerably with the relevant con-
text in which the question is examined. In the context of admittance to
the family of nations the standard of civilization also gained a legal di-
mension, albeit without much agreement in legal writing as to how to
define such a standard.54
dominated 19th and early 20th century thinking that African and Asian
peoples were uncivilized, the central difficulty that remains is to define
the content of the term “civilization” or a “standard of civilization”.
Obviously, approaches to defining the meaning of civilization strongly
depend upon the time and situation, the cultural background as well as
upon philosophical considerations. In general, the understanding of
what constitutes civilization varies considerably with the relevant con-
text in which the question is examined. In the context of admittance to
the family of nations the standard of civilization also gained a legal di-
mension, albeit without much agreement in legal writing as to how to
define such a standard.54
When international law introduced the requirement of civilization as
a precondition to be recognized as an actor, different approaches as to
a precondition to be recognized as an actor, different approaches as to
52 See Kingsbury, see note 42, 607.
53 E.g. in the separate opinion of ICJ Vice-President Ammoun in the case Le-
gal Consequences
for States of the Continued Presence of South Africa in
Namibia (South
West Africa) Notwithstanding Security Council Resolu-
tion 276 (1970),
ICJ Reports (1971), 16 et seq. (67 et seq.).
54 Kingsbury, see note 42, 605.
Matz, Civilization and the Mandate System under
the League of Nations 65
what constituted
the necessary degree of civilization existed, although it
was in principle agreed that it had to be a standard of civilization in the
European sense. In essence the importance of being a member of the
civilized part of the world in colonial and post-colonial times does not
define the preconditions for being recognized as civilized other than be-
ing as European as the European powers at the time of the League of
Nations. Consequently, European values, standards and modes of be-
havior had to be copied and, furthermore, nations had to assimilate in a
commercial sense, i.e. they had to engage in constant commercial rela-
tions with the European states.55 Likewise international law evolved
from a “law of Christian nations” to a “public law of Europe” to a “law
of civilized states” including the assimilated non-European states.56
was in principle agreed that it had to be a standard of civilization in the
European sense. In essence the importance of being a member of the
civilized part of the world in colonial and post-colonial times does not
define the preconditions for being recognized as civilized other than be-
ing as European as the European powers at the time of the League of
Nations. Consequently, European values, standards and modes of be-
havior had to be copied and, furthermore, nations had to assimilate in a
commercial sense, i.e. they had to engage in constant commercial rela-
tions with the European states.55 Likewise international law evolved
from a “law of Christian nations” to a “public law of Europe” to a “law
of civilized states” including the assimilated non-European states.56
First of all the encounter of European and non-European cultures in
Africa and Asia but also with native Americans, native Australians or
with New Zealand’s natives was exactly that: a clash of different cul-
tures. In the end European culture and a European understanding of
standards of civilization prevailed. However, the superiority that re-
sulted in defining what amounted to civilization according to its own
cultural standards was not established by an assessment of the values of
the different cultural convictions - if suchlike would be possible at all -
but by the accompanying military force and superiority. By the combi-
nation of military superiority with the missionary spreading of culture
and religion non-European societies had no choice but to accept the
standard of “civilization” as something worth attaining57 in order to ul-
timately be granted self-determination. Only assimilation promised
recognition.
Africa and Asia but also with native Americans, native Australians or
with New Zealand’s natives was exactly that: a clash of different cul-
tures. In the end European culture and a European understanding of
standards of civilization prevailed. However, the superiority that re-
sulted in defining what amounted to civilization according to its own
cultural standards was not established by an assessment of the values of
the different cultural convictions - if suchlike would be possible at all -
but by the accompanying military force and superiority. By the combi-
nation of military superiority with the missionary spreading of culture
and religion non-European societies had no choice but to accept the
standard of “civilization” as something worth attaining57 in order to ul-
timately be granted self-determination. Only assimilation promised
recognition.
It was hardly questioned by the Eurocentric perspective on interna-
tional law that peoples living in Africa and Asia were uncivilized if
compared with the European societies or societies descendant from the
European peoples such as America or Australia and New Zealand. Al-
though certain African and Asian states were recognized due to their
standard of civilization, which was e.g. in the case of the recognition of
Japan mainly demonstrated by military might, they remained outside
the inner circle of European actors: tolerated but not considered fully-
fledged Member States.58
tional law that peoples living in Africa and Asia were uncivilized if
compared with the European societies or societies descendant from the
European peoples such as America or Australia and New Zealand. Al-
though certain African and Asian states were recognized due to their
standard of civilization, which was e.g. in the case of the recognition of
Japan mainly demonstrated by military might, they remained outside
the inner circle of European actors: tolerated but not considered fully-
fledged Member States.58
55 Abi-Saab, see note 47, 36 et seq.
56 Gong, see note 50, 238.
57 Ibid., 98.
58 Abi-Saab, see note 47, 37.
66 Max
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The Mandate System reflects the distinction between the civilized
and the uncivilized by referring to tutelage as a sacred trust of civiliza-
tion that can only extend - although not explicitly referred to as such -
to the uncivilized or not yet sufficiently civilized societies. Despite its
careful wording, the idea behind the establishment of different types of
mandate was clearly based upon allegations that some peoples were not
civilized enough to be able to govern themselves on a short-term or
even medium-term basis.
and the uncivilized by referring to tutelage as a sacred trust of civiliza-
tion that can only extend - although not explicitly referred to as such -
to the uncivilized or not yet sufficiently civilized societies. Despite its
careful wording, the idea behind the establishment of different types of
mandate was clearly based upon allegations that some peoples were not
civilized enough to be able to govern themselves on a short-term or
even medium-term basis.
The Eurocentric understanding common at that time that the peo-
ples in the dependent territories of Africa and Asia were too uncivilized
to establish public order, public administration, stable governmental
structures, a civil society, education and a viable economy was prolifer-
ated by political and legal opinion and writing at that time. Nineteenth
century classification of “humanity” distinguished either between the
“civilized”, “semi-civilized” and the “uncivilized” or in a different ter-
minology between “civilized humanity”, “barbarous humanity” and
“savage humanity”.59
ples in the dependent territories of Africa and Asia were too uncivilized
to establish public order, public administration, stable governmental
structures, a civil society, education and a viable economy was prolifer-
ated by political and legal opinion and writing at that time. Nineteenth
century classification of “humanity” distinguished either between the
“civilized”, “semi-civilized” and the “uncivilized” or in a different ter-
minology between “civilized humanity”, “barbarous humanity” and
“savage humanity”.59
Reasons for such a common understanding that was reflected in
European societies in general, can partially be explained with reference
to socio-cultural implications at that time. Contacts to African and
Asian people were, at least for the ordinary European citizen, very lim-
ited. Relations to non-European societies and cultures were often re-
stricted to tales of seafarers and adventurers. The fact that, mainly Afri-
can, people were exhibited by their participation in shows held inter
alia in German and Austrian zoos60 further promoted the picture of ex-
otic but savage peoples and assisted the manifestation of a common un-
derstanding of superiority of the (European) “civilization”.
European societies in general, can partially be explained with reference
to socio-cultural implications at that time. Contacts to African and
Asian people were, at least for the ordinary European citizen, very lim-
ited. Relations to non-European societies and cultures were often re-
stricted to tales of seafarers and adventurers. The fact that, mainly Afri-
can, people were exhibited by their participation in shows held inter
alia in German and Austrian zoos60 further promoted the picture of ex-
otic but savage peoples and assisted the manifestation of a common un-
derstanding of superiority of the (European) “civilization”.
59 See ibid., 38 for further categories and references to
late 19th century
sources.
60 In the late 19th and early 20th century shows with “exotic” people were a
great success
throughout Europe. The German zoo Hagenbeck in Ham-
burg, for example, held more than 60 so-called “Völkerschauen”. In these
shows members of African, South-American and other native peoples per-
formed “tribal dances” or were exhibited in their allegedly normal sur-
roundings 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 fünf-
zig Pfennig um die Welt - Die Hagenbeckschen Völkerschauen, 1989; L.
Dittrich/ A. Rieke-Müller, Carl Hagenbeck (1844-1913) - Tierhandel und
Schaustellungen im deutschen Kaiserreich, 1998.
burg, for example, held more than 60 so-called “Völkerschauen”. In these
shows members of African, South-American and other native peoples per-
formed “tribal dances” or were exhibited in their allegedly normal sur-
roundings 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 fünf-
zig Pfennig um die Welt - Die Hagenbeckschen Völkerschauen, 1989; L.
Dittrich/ A. Rieke-Müller, Carl Hagenbeck (1844-1913) - Tierhandel und
Schaustellungen im deutschen Kaiserreich, 1998.
Matz, Civilization and the Mandate System under
the League of Nations 67
From our perspective today, “civilization” and a “high standard of
civilization” might be equaled with the implementation of certain hu-
man rights standards. However, taking into account the violence and
unrestricted brutality with which allegedly civilized states fought
against each other during World War I, it is questionable whether at the
time of the Mandate System there was any linkage between civilization
and humanity in more concrete forms. In essence “civilization” at the
time of the Mandate System was a notion of cultural arrogance if not a
tendency towards racism that perceived as uncivilized those peoples
that did not share European culture, religion and traditions.
civilization” might be equaled with the implementation of certain hu-
man rights standards. However, taking into account the violence and
unrestricted brutality with which allegedly civilized states fought
against each other during World War I, it is questionable whether at the
time of the Mandate System there was any linkage between civilization
and humanity in more concrete forms. In essence “civilization” at the
time of the Mandate System was a notion of cultural arrogance if not a
tendency towards racism that perceived as uncivilized those peoples
that did not share European culture, religion and traditions.
d. Implications for Current Policies
Although
democracy as the result of a process of self-determination of
a people to govern their affairs internally and externally, is the indispen-
sable foundation of many states that are important actors in the interna-
tional arena, this development is relatively young. The idea to protect
societies from undemocratic forms of government does not explain the
historical reasons for denying self-government and is questionable even
today. In the high time of colonial powers, most of the states exercising
authority over overseas territories were monarchies with more or less
strong approaches to democratic self-government of their own people.
A lack of ability to democratically govern themselves at that time and
even directly after World War I, when democratic republics were
strengthened, could not have been the decisive factor. Instead civiliza-
tion and the lack thereof was turned into the central issue that served as
an interrelating factor for the issues of colonial rule, tutelage, sover-
eignty and self-determination.
a people to govern their affairs internally and externally, is the indispen-
sable foundation of many states that are important actors in the interna-
tional arena, this development is relatively young. The idea to protect
societies from undemocratic forms of government does not explain the
historical reasons for denying self-government and is questionable even
today. In the high time of colonial powers, most of the states exercising
authority over overseas territories were monarchies with more or less
strong approaches to democratic self-government of their own people.
A lack of ability to democratically govern themselves at that time and
even directly after World War I, when democratic republics were
strengthened, could not have been the decisive factor. Instead civiliza-
tion and the lack thereof was turned into the central issue that served as
an interrelating factor for the issues of colonial rule, tutelage, sover-
eignty and self-determination.
Relics of the distinction between the civilized and the uncivilized
peoples remain in the texts of current international law, although they
have lost their practical relevance. The most prominent example is given
by Article 38 para. 1 lit. c. of the Statute for the ICJ.61 This article refers
to “general principles of law recognized by civilized nations” as one of
the sources of international law to be applied by the court. The provi-
sion with its reference to civilized nations has its origin in article 38 of
the Statute for the Permanent Court of International Justice (PCIJ),62
the ICJ’s predecessor, that was adopted on 13 December 1920. The
PCIJ served as the dispute settlement institution for the Member States
peoples remain in the texts of current international law, although they
have lost their practical relevance. The most prominent example is given
by Article 38 para. 1 lit. c. of the Statute for the ICJ.61 This article refers
to “general principles of law recognized by civilized nations” as one of
the sources of international law to be applied by the court. The provi-
sion with its reference to civilized nations has its origin in article 38 of
the Statute for the Permanent Court of International Justice (PCIJ),62
the ICJ’s predecessor, that was adopted on 13 December 1920. The
PCIJ served as the dispute settlement institution for the Member States
61 UNCIO Vol. 15, 355 et seq.
62 LNTS Vol. VI No. 170, Statute.
68 Max
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of the League of
Nations and its statute clearly reflects the perception of international law at the time of its
creation.
The reference to civilization to define the sources of law is a clear re-
flection of the origins of international law in the Westphalian system of
sovereign states. Although each source named in Article 38 para. 1 of
the ICJ Statute was originally linked to a standard of (European) civili-
zation, the frequent use of the phrase “recognized by civilized nations”
started to become an issue of embarrassment in international law and
international relations in the 20th century.63 The fact that the reference
to general principles of law of only the civilized nations as a source of
international law was not deleted from the later Statute for the ICJ
demonstrates that the Eurocentric era of international law was not yet
completely over when the UN was founded, despite the acknowledge-
ment of a right to self-determination and efforts to promote decoloni-
zation.
flection of the origins of international law in the Westphalian system of
sovereign states. Although each source named in Article 38 para. 1 of
the ICJ Statute was originally linked to a standard of (European) civili-
zation, the frequent use of the phrase “recognized by civilized nations”
started to become an issue of embarrassment in international law and
international relations in the 20th century.63 The fact that the reference
to general principles of law of only the civilized nations as a source of
international law was not deleted from the later Statute for the ICJ
demonstrates that the Eurocentric era of international law was not yet
completely over when the UN was founded, despite the acknowledge-
ment of a right to self-determination and efforts to promote decoloni-
zation.
Today, the term “civilized nations” in Article 38 para. 1 lit. c. ICJ
Statute is understood to have no limiting or in any way restrictive char-
acter but refers - if not to all recognized states of the world - at least to
all UN Member States.64 This understanding reflects that a practice of
differentiating between the civilized and others has formally been given
up in international legal relations and that the exclusively Eurocentric
perspective on law has been overcome despite continuing economic and
political dependencies between developed and developing states. Yet,
the issue of different standards of civilizations might resurface even in
our times, either as a “clash of civilizations” or as the question whether
globalization forces a diverse cultural system to conform to a Western
standard.65
Statute is understood to have no limiting or in any way restrictive char-
acter but refers - if not to all recognized states of the world - at least to
all UN Member States.64 This understanding reflects that a practice of
differentiating between the civilized and others has formally been given
up in international legal relations and that the exclusively Eurocentric
perspective on law has been overcome despite continuing economic and
political dependencies between developed and developing states. Yet,
the issue of different standards of civilizations might resurface even in
our times, either as a “clash of civilizations” or as the question whether
globalization forces a diverse cultural system to conform to a Western
standard.65
With a view to current world relations one might all too easily apply
the measuring stick of a Western understanding of democracy to deter-
mine whether societies are capable of governing themselves or whether
foreign assistance in a broad sense of meaning is necessary. From a per-
spective that often has a decidedly paternalistic notion, a people that is
not ready for democracy must be protected from instability or from vil-
lainous tyrants. According to such a line of argumentation a people re-
quires guidance towards democratic self-government that can only be
granted by some kind of external administrative authority. This, how-
the measuring stick of a Western understanding of democracy to deter-
mine whether societies are capable of governing themselves or whether
foreign assistance in a broad sense of meaning is necessary. From a per-
spective that often has a decidedly paternalistic notion, a people that is
not ready for democracy must be protected from instability or from vil-
lainous tyrants. According to such a line of argumentation a people re-
quires guidance towards democratic self-government that can only be
granted by some kind of external administrative authority. This, how-
63 D.P. Fidler, “The Return of the Standard of Civilization”, Chi. J. Int’l L.
(2001), 137 et
seq. (138).
64 W. Heintschel von Heinegg, in: K. Ipsen, Völkerrecht, 2004, §17, para. 2.
65 On this issue see Fidler, see note 63, 137 et seq.
Matz, Civilization and the Mandate System under
the League of Nations 69
ever, leads to a
distinction between the “able” and the “unable”, the
“knowing” and the “unknowing” that is more or less equivalent to the
distinction between the “civilized” and the “uncivilized”, which has - at
least formally - been abolished from modern political theory. In both
cases, post World War I and today, the underlying scenario - Western
nations use international law to impose policies, institutions and values
embedded in Western civilization upon non-Western societies66 - is vir-
tually the same.
“knowing” and the “unknowing” that is more or less equivalent to the
distinction between the “civilized” and the “uncivilized”, which has - at
least formally - been abolished from modern political theory. In both
cases, post World War I and today, the underlying scenario - Western
nations use international law to impose policies, institutions and values
embedded in Western civilization upon non-Western societies66 - is vir-
tually the same.
With a view to world politics of the last years the tendency is to replace the former distinction between civilized
and uncivilized societies with a
distinction between undemocratically and democratically governed peoples. Whether such a distinction is
an advisable criteria for modern
world politics is questionable. The relevant questions are caught in the dilemma between actively
promoting human rights standards
and respecting the integrity of states even if they are qualified as “failed states” by parts of the world
community.
III. Structure and Function of the Mandate
System
The conceptual
structure of the Mandate System demonstrates its over-
riding objective not to treat the detached colonies as spoils of war to be
transferred under new colonial rule but to create a system of controlled
administration under supervision of the League of Nations. The system
clearly is of an international nature, although the direct administrative
authority is vested in single Member States, the Mandatories, in contrast
to an approach of direct international government.67 The balance of a
Mandatory’s power on the one hand and supervision and control by the
League of Nations on the other reflects the political compromise and
shows certain deficiencies. The League of Nations itself had no legal
competencies to transfer the administration of mandated territories un-
riding objective not to treat the detached colonies as spoils of war to be
transferred under new colonial rule but to create a system of controlled
administration under supervision of the League of Nations. The system
clearly is of an international nature, although the direct administrative
authority is vested in single Member States, the Mandatories, in contrast
to an approach of direct international government.67 The balance of a
Mandatory’s power on the one hand and supervision and control by the
League of Nations on the other reflects the political compromise and
shows certain deficiencies. The League of Nations itself had no legal
competencies to transfer the administration of mandated territories un-
66 Ibid., 139.
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 Na-
tions and its Member States in the Post Cold War Era: Legal Bases and Im-
plications for National Law”, Max Planck UNYB 8 (2004), 291 et seq.
tions and its Member States in the Post Cold War Era: Legal Bases and Im-
plications for National Law”, Max Planck UNYB 8 (2004), 291 et seq.
70 Max
Planck UNYB 9 (2005)
der its direct
control should the Mandatory fail to comply with obligations under the mandate.68
1. Governing Principles: Non-Annexation and “Sacred
Trust”
Different levels
of objectives and goals have to be distinguished when
examining the Mandate System. One of the main political ideas behind
the system was the prevention of exploitation of native peoples in de-
pendent territories. This objective was supplemented by the one to
promote the well-being and development of the people. These political
deliberations were implemented and supported by a number of princi-
ples. Primarily, two elements formed the core of the Mandate System:
the principle of non-annexation of the territory on the one hand and its
administration as a “sacred trust of civilisation” on the other. While
these considerations addressed some problems, e.g. the general restric-
tion of the powers of the Mandatories, they raised others, particularly
with regard to who had sovereignty over the territory.
examining the Mandate System. One of the main political ideas behind
the system was the prevention of exploitation of native peoples in de-
pendent territories. This objective was supplemented by the one to
promote the well-being and development of the people. These political
deliberations were implemented and supported by a number of princi-
ples. Primarily, two elements formed the core of the Mandate System:
the principle of non-annexation of the territory on the one hand and its
administration as a “sacred trust of civilisation” on the other. While
these considerations addressed some problems, e.g. the general restric-
tion of the powers of the Mandatories, they raised others, particularly
with regard to who had sovereignty over the territory.
The circumstance that the Mandatories had to administer the man-
dated territories without annexation, while to some extent countering
imperial desires of the existing colonial powers, did not solve the ques-
tion of whether or not and to what degree any entity had sovereignty
over the territories at all. The mandated territories were considered not
yet capable of sovereignty, which would have meant self-determination
in all respects. Under colonial rule the governed colonies by definition
lack sovereignty. Yet, in these cases sovereignty and jurisdiction is with
the colonial power. The Mandatories, as opposed to colonial authori-
ties, administered the territories in accordance with the terms of the
mandate and on behalf of the League of Nations. Hence, the perform-
ance of rights according to the mandate can only relate to conferred
rights and not to original ones held by the Mandatory. At the same time
the conferral of administrative rights does not necessarily transfer sov-
ereignty. Furthermore, in order to be transferred from the League of
Nations to a Mandatory it must have first been attributed to the organi-
zation.
dated territories without annexation, while to some extent countering
imperial desires of the existing colonial powers, did not solve the ques-
tion of whether or not and to what degree any entity had sovereignty
over the territories at all. The mandated territories were considered not
yet capable of sovereignty, which would have meant self-determination
in all respects. Under colonial rule the governed colonies by definition
lack sovereignty. Yet, in these cases sovereignty and jurisdiction is with
the colonial power. The Mandatories, as opposed to colonial authori-
ties, administered the territories in accordance with the terms of the
mandate and on behalf of the League of Nations. Hence, the perform-
ance of rights according to the mandate can only relate to conferred
rights and not to original ones held by the Mandatory. At the same time
the conferral of administrative rights does not necessarily transfer sov-
ereignty. Furthermore, in order to be transferred from the League of
Nations to a Mandatory it must have first been attributed to the organi-
zation.
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.
could act as a potential Administrating Authority within the Trusteeship
System.
Matz, Civilization and the Mandate System under
the League of Nations 71
This, however, must be denied when interpreting the Covenant. The
Covenant is silent on the issue of new sovereignty over the territories.
Article 22 only mentions that they have ceased to be under the sover-
eignty of the states governing them before the war. From the further
wording it follows that the territories themselves are not ready for sov-
ereignty. No indications are given that “tutelage” involved sovereignty.
The League of Nations’ involvement in the Mandate System and the
position of a supervisor over the Mandatories did neither transfer terri-
torial sovereignty to the institution itself nor, as already explained, to
the Mandatory. As a result, the mandated territories remained entities
that were governed by international law without being recognized sub-
jects of international law. Mention has already been made of - later -
theories of “dormant” sovereignty that at all times lay with the people
in dependent territories but that was only re-established69 when the ter-
ritory became independent.
Covenant is silent on the issue of new sovereignty over the territories.
Article 22 only mentions that they have ceased to be under the sover-
eignty of the states governing them before the war. From the further
wording it follows that the territories themselves are not ready for sov-
ereignty. No indications are given that “tutelage” involved sovereignty.
The League of Nations’ involvement in the Mandate System and the
position of a supervisor over the Mandatories did neither transfer terri-
torial sovereignty to the institution itself nor, as already explained, to
the Mandatory. As a result, the mandated territories remained entities
that were governed by international law without being recognized sub-
jects of international law. Mention has already been made of - later -
theories of “dormant” sovereignty that at all times lay with the people
in dependent territories but that was only re-established69 when the ter-
ritory became independent.
The principle of administration as a “sacred trust of civilisation” was
designed to prevent a practice of imperial exploitation of the mandated
territory in contrast to former colonial habits. Instead, the Mandatory’s
administration should assist in developing the territory for the well-
being of its native people. A difficulty with the concept of “sacred
trust” is its lack of definable content and its - from our perspective to-
day - decidedly paternalistic tone. If anything, it can serve as a negative
definition to detect the abuse of power, e.g. if in the case of the exploita-
tion of gold and silver or minerals for the benefit of the Mandatory the
latter is not treating the territory as a “sacred trust”. Apart from this,
the term is without specific legal or even political meaning but rather af-
firms a moral duty to care. Although the idea behind the system is re-
flected by the use of the term “sacred trust”, it does not give guidance
on how to actually perform the Mandatory’s function. Furthermore, it
cannot serve as a measuring stick when controlling a Mandatory’s per-
formance. This changed only when, after the creation of the United Na-
tions and the establishment of the principle of self-determination, what
designed to prevent a practice of imperial exploitation of the mandated
territory in contrast to former colonial habits. Instead, the Mandatory’s
administration should assist in developing the territory for the well-
being of its native people. A difficulty with the concept of “sacred
trust” is its lack of definable content and its - from our perspective to-
day - decidedly paternalistic tone. If anything, it can serve as a negative
definition to detect the abuse of power, e.g. if in the case of the exploita-
tion of gold and silver or minerals for the benefit of the Mandatory the
latter is not treating the territory as a “sacred trust”. Apart from this,
the term is without specific legal or even political meaning but rather af-
firms a moral duty to care. Although the idea behind the system is re-
flected by the use of the term “sacred trust”, it does not give guidance
on how to actually perform the Mandatory’s function. Furthermore, it
cannot serve as a measuring stick when controlling a Mandatory’s per-
formance. This changed only when, after the creation of the United Na-
tions and the establishment of the principle of self-determination, what
69 Technically it was for most territories not even a re-establishment of
sover-
eignty 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.
72 Max
Planck UNYB 9 (2005)
was formerly
called a “sacred trust” was equaled with speedy development of structures for self-government.70
2. Establishment and Classification of
Mandates
All mandates71
were established by a Mandate Agreement, which set the terms for the administration by the Mandatory
Power. By such a procedure rights
and duties of the Mandatories were specified for each territory. Article 22 of the Covenant in
accordance with its overall aim to guarantee the well-being and development of the peoples inhabiting the former colonies provides that:
“the character
of the mandate must differ according to the stage of
the development of the people, the geographical situation of the ter-
ritory, its economic conditions and other similar circumstances”.
the development of the people, the geographical situation of the ter-
ritory, its economic conditions and other similar circumstances”.
Different groups of territories are further elaborated upon by article
22 paras 4-6 Covenant with reference to the different stages of cultural,
political and economic development as well as certain particularities
that require varied degrees of administration. Such differences are in
further detail recognized by the specific mandates. Article 22 of the
Covenant and the different mandate agreements have led to the classifi-
cation of dependent territories as A, B and C mandates according to the
degree of involvement of the Mandatory and the corresponding degree
of self-governance.
22 paras 4-6 Covenant with reference to the different stages of cultural,
political and economic development as well as certain particularities
that require varied degrees of administration. Such differences are in
further detail recognized by the specific mandates. Article 22 of the
Covenant and the different mandate agreements have led to the classifi-
cation of dependent territories as A, B and C mandates according to the
degree of involvement of the Mandatory and the corresponding degree
of self-governance.
The so-called A mandates consisted of former Ottoman Empire
colonies and comprised Iraq, Palestine including Transjordan, and Syria
including Lebanon. According to article 22 para. 4 Covenant the socie-
ties living in these territories had developed in such a way that “their
existence as independent nations can be provisionally recognized”. Al-
though formally mandated territories, these A mandates were only
nominally governed by foreign authority as the Mandatory was offer-
ing advice and support in the process of self-government.
colonies and comprised Iraq, Palestine including Transjordan, and Syria
including Lebanon. According to article 22 para. 4 Covenant the socie-
ties living in these territories had developed in such a way that “their
existence as independent nations can be provisionally recognized”. Al-
though formally mandated territories, these A mandates were only
nominally governed by foreign authority as the Mandatory was offer-
ing advice and support in the process of self-government.
In contrast to the relatively far-reaching self-determination of the
societies in A mandates, authorities that were mandated with category
B mandates had far greater powers over the administration of the terri-
tory. Mandatory states exercised full administrative control under the
societies in A mandates, authorities that were mandated with category
B mandates had far greater powers over the administration of the terri-
tory. Mandatory states exercised full administrative control under the
70 Franck, see note 28, 160.
71 For the distribution of mandates and figures concerning the area of the
ter-
ritories and their population (as of 1938) see
Hall, see note 6, 295.
Matz, Civilization and the Mandate System under
the League of Nations 73
supervision of
the League of Nations’ organs that were responsible for the Mandate System. Category B mandates
included the British and French rule over
Cameroon and Togo72, German East Africa (Tanganyika) and Rwanda-Burundi.
By its concept and degree of power, rule over C Mandate territories came closest to colonial rule. The relation
between the Mandatory state and the
mandated territory reminds of the relation between imperium and dominium.73 Article 22 Covenant
names South-West Africa and certain
South Pacific islands as being best administered as integral parts of the
Mandatory’s territory:
“owing to the
sparseness of their population, or their small size, or their remoteness from the centres of
civilization, or their contiguity to the territory of the Mandatory … ”.
Australia was mandated with the former German territories South of the equator, Japan with those North of the
equator. Nauru was mandated to the
United Kingdom, Western Samoa to New Zealand and former German South West Africa came under the Mandate of
the Union of South Africa. The last mandate became a particularly problematic matter of international politics and
international law and shall be given a closer look in some of the following sections.74
3. The Main Institutional Features of the
Mandate System
According to
article 22 para. 7 of the Covenant Mandatories had to re-
port annually on the situation in the territories they administered, as
part of the balance between relatively far-reaching powers and League
of Nations supervision. Those reports had to be submitted to the
Council. However, in accordance with Article 22 para. 9 of the Cove-
nant, the League of Nations established the so-called Permanent Man-
dates Commission to examine the annual reports and to advise the
Council on matters related to the Mandate System. The creation of re-
porting requirements as part of a compliance procedure and compliance
control has experienced growing approval in international human rights
law and international environmental law in the last decades. To this ex-
port annually on the situation in the territories they administered, as
part of the balance between relatively far-reaching powers and League
of Nations supervision. Those reports had to be submitted to the
Council. However, in accordance with Article 22 para. 9 of the Cove-
nant, the League of Nations established the so-called Permanent Man-
dates Commission to examine the annual reports and to advise the
Council on matters related to the Mandate System. The creation of re-
porting requirements as part of a compliance procedure and compliance
control has experienced growing approval in international human rights
law and international environmental law in the last decades. To this ex-
72 In both cases parts of the territories were mandated to the United
Kingdom
and others to
France.
73 Ermacora, see note 7, 872.
74 Infra at III. 4.
74 Max
Planck UNYB 9 (2005)
tent reporting
requirements are still considered a modern and viable
tool of institutions. However, a reporting scheme is hardly sufficient, if
it is not accompanied by further means to influence the behavior of
states should they fail either their reporting obligations or their sub-
stantial duties.
tool of institutions. However, a reporting scheme is hardly sufficient, if
it is not accompanied by further means to influence the behavior of
states should they fail either their reporting obligations or their sub-
stantial duties.
In the case of the Mandate System the degree of actual control was relatively low. Although the Permanent
Mandates Commission reviewed the
reports, it did not verify the situation in the mandated territories. Neither was the Permanent Mandates
Commission itself competent to decide
on formal or substantial deficiencies concerning compliance with the relevant mandates.
Another element already introduced by the Mandate System that is
experiencing a revival in current international relations consists of the
possibility for individuals to submit petitions. The right of petition was
not expressly referred to in the Covenant. Nor was mention of such a
right made by the texts of the different mandates. The Council estab-
lished the system by the adoption of a Procedure in Respect of Petitions
in 1923.75 The system inter alia served as a means of gathering addi-
tional information about the situation in a particular mandated territory
for the Permanent Mandates Commission.76 In our times such a mecha-
nism was inter alia introduced with the creation of the World Bank In-
spection Panel to enhance accountability. However, the petition system
that formed part of the Mandate System hardly functioned as an effec-
tive procedure to achieve a change of policy of the Mandatory. Petitions
from inhabitants of the mandated territory were only accepted if they
were transmitted by the Mandatory itself, which could either suppress
petitions because inhabitants lacked trust in the Mandatory or because
the Mandatory in fact refrained from transmitting such petitions.
experiencing a revival in current international relations consists of the
possibility for individuals to submit petitions. The right of petition was
not expressly referred to in the Covenant. Nor was mention of such a
right made by the texts of the different mandates. The Council estab-
lished the system by the adoption of a Procedure in Respect of Petitions
in 1923.75 The system inter alia served as a means of gathering addi-
tional information about the situation in a particular mandated territory
for the Permanent Mandates Commission.76 In our times such a mecha-
nism was inter alia introduced with the creation of the World Bank In-
spection Panel to enhance accountability. However, the petition system
that formed part of the Mandate System hardly functioned as an effec-
tive procedure to achieve a change of policy of the Mandatory. Petitions
from inhabitants of the mandated territory were only accepted if they
were transmitted by the Mandatory itself, which could either suppress
petitions because inhabitants lacked trust in the Mandatory or because
the Mandatory in fact refrained from transmitting such petitions.
4. The Example of German South West Africa
(Namibia)
In addition to
the case studies performed by other contributions to this
Volume, the following subsections focus on governance of the territory
of the former German South West Africa to illustrate the setting and
Volume, the following subsections focus on governance of the territory
of the former German South West Africa to illustrate the setting and
75 Reprinted in Hall, see note 6, 314 et seq.
76 S. Slonim, South
West Africa and the United Nations: An International
Mandate in Dispute, 1973, 47.
Matz, Civilization and the Mandate System under
the League of Nations 75
some of the
failures of the Mandate System of the League of Nations.77
In contrast to other case studies, this article with its focus on the Man-
date System and the issue of civilization does not attempt to draw the
full and chronological picture of events from the negotiation of the
Mandate for the territory to its independence. Rather this paper con-
centrates on briefly summarizing the main steps undertaken by the
League of Nations and later the United Nations in regard to Namibia
insofar as they are relevant for an assessment of the Mandate System
and its deficiencies and a discussion on potential future models for trus-
teeship and state-building.
In contrast to other case studies, this article with its focus on the Man-
date System and the issue of civilization does not attempt to draw the
full and chronological picture of events from the negotiation of the
Mandate for the territory to its independence. Rather this paper con-
centrates on briefly summarizing the main steps undertaken by the
League of Nations and later the United Nations in regard to Namibia
insofar as they are relevant for an assessment of the Mandate System
and its deficiencies and a discussion on potential future models for trus-
teeship and state-building.
As mentioned above, the Union of South Africa that was in this
context represented by General Smuts played a significant role in creat-
ing the Mandate System. From the beginning South Africa expressed
her will to be mandated with the territory of the former German colony
South West Africa that lies adjacent to her own territory. When the
Mandate System was initiated, “His Britannic Majesty” was mandated
with the former German territory and, since the mandate was “to be
exercised on his behalf by the Government of the Union of South Af-
rica”,78 the latter administered it for more than half a century to great
international concern regarding the means of administration and the
political system established.
context represented by General Smuts played a significant role in creat-
ing the Mandate System. From the beginning South Africa expressed
her will to be mandated with the territory of the former German colony
South West Africa that lies adjacent to her own territory. When the
Mandate System was initiated, “His Britannic Majesty” was mandated
with the former German territory and, since the mandate was “to be
exercised on his behalf by the Government of the Union of South Af-
rica”,78 the latter administered it for more than half a century to great
international concern regarding the means of administration and the
political system established.
The general acceptance of the name “Namibia” that stems from the
Namib Desert instead of the former designation of the territory as
“South West Africa” results from a UN General Assembly Resolution
in 1968.79 Acceptance of the name by the community of states under-
lined the formal recognition of the territory’s right to rid itself from
both its colonial label and from administration as part of the South Af-
rican state territory. By such a proceeding the United Nations meant to
emphasize the Namibian people’s claim to self-determination. The need
for explicit re-statements of Namibia’s special, international status has
Namib Desert instead of the former designation of the territory as
“South West Africa” results from a UN General Assembly Resolution
in 1968.79 Acceptance of the name by the community of states under-
lined the formal recognition of the territory’s right to rid itself from
both its colonial label and from administration as part of the South Af-
rican state territory. By such a proceeding the United Nations meant to
emphasize the Namibian people’s claim to self-determination. The need
for explicit re-statements of Namibia’s special, international status has
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 As-
pects 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.
pects 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 Preamble to the Mandate for German South West Africa, reprinted in Slo-
nim, see note
76, 369 et seq.
79 A/RES/2372 (XXII) of 12 June 1968.
76 Max
Planck UNYB 9 (2005)
to be seen in
the context of the long-term controversy between South Africa and the League of Nations and,
particularly, the UN over the administration
of the former colony that began shortly after it became a mandated territory and ended with Namibia’s
independence and full recognition as a
sovereign state in 1990.80
a. The Controversy about the Status of Namibia
as a Mandated
Territory: The Question of Sovereignty
Territory: The Question of Sovereignty
When Germany had
to renounce all rights concerning overseas territo-
ries according to article 119 of the Versailles Peace Treaty, the former
German protectorate of South West Africa was classified a type C Man-
date. On 17 December 1920 the Government of the Union of South Af-
rica represented by the King of England was mandated with the ad-
ministration of the territory. According to the regulation in article 22
para. 6 of the Covenant, South West Africa was allowed to administer
the territory as part of its own. The far-reaching powers of the Manda-
tory are also referred to by article 2 of the German South West Africa
Mandate according to which:
ries according to article 119 of the Versailles Peace Treaty, the former
German protectorate of South West Africa was classified a type C Man-
date. On 17 December 1920 the Government of the Union of South Af-
rica represented by the King of England was mandated with the ad-
ministration of the territory. According to the regulation in article 22
para. 6 of the Covenant, South West Africa was allowed to administer
the territory as part of its own. The far-reaching powers of the Manda-
tory are also referred to by article 2 of the German South West Africa
Mandate according to which:
“The Mandatory
shall have full power of administration and legislation over the territory subject to the present
Mandate as an integral portion of the
Union of South Africa, and may apply the laws of the Union of South Africa to the territory […]”.
Apart from that general outline, the degree of administration and
control was to be defined by the Council of the League of Nations in
accordance with article 22 para. 8 of the Covenant. This article is also
referred to in the preamble of the Mandate for German South West Af-
rica. As mentioned above, category C mandates come closest to colonial
rule, due to the far-reaching powers of the Mandatory, although the
principle of the “sacred trust” was meant to prevent colonial exploita-
tion. The example of Namibia demonstrates the difficulties to define the
legal status of class C mandates. Despite the circumstance that the
Mandatory state was allowed to exercise full administrative and legisla-
tive powers as if the territory was a portion of its own, in legal terms
this did not result in an annexation of the territory. However, the ap-
parent contradiction between the principle of non-annexation and de
lege lata treatment as part of the Mandatory’s territory leads to a de
facto annexation. In the case of Namibia the de facto annexation to-
control was to be defined by the Council of the League of Nations in
accordance with article 22 para. 8 of the Covenant. This article is also
referred to in the preamble of the Mandate for German South West Af-
rica. As mentioned above, category C mandates come closest to colonial
rule, due to the far-reaching powers of the Mandatory, although the
principle of the “sacred trust” was meant to prevent colonial exploita-
tion. The example of Namibia demonstrates the difficulties to define the
legal status of class C mandates. Despite the circumstance that the
Mandatory state was allowed to exercise full administrative and legisla-
tive powers as if the territory was a portion of its own, in legal terms
this did not result in an annexation of the territory. However, the ap-
parent contradiction between the principle of non-annexation and de
lege lata treatment as part of the Mandatory’s territory leads to a de
facto annexation. In the case of Namibia the de facto annexation to-
80 Namibia was admitted to membership of the United Nations on 23 April
1990.
Matz, Civilization and the Mandate System under
the League of Nations 77
gether with the
profound difficulties in defining the issue of sovereignty for class C mandates resulted in a lack of
clear rejection of South African
claims in the time of the League of Nations.
The mandated territory remained a particular subject of international law: neither sovereign itself nor
formally a part of another sovereign state’s territory. Yet, the League of Nations was doubtful how to react when South Africa challenged exactly
this conclusion. The wording of the
Mandate for German South West Africa81 is already ambiguous as far as the issue of sovereignty over
the territory is concerned, since
it does not clearly reject South African claims to sovereignty over the territory, but instead affirms full
powers.82
In 1926, six years after the beginning of the mandate, South-Africa
first formally claimed the possession of sovereignty and initiated a con-
troversy with the League of Nations that resulted in a very vague inter-
pretation of South African sovereignty over the territory which was ac-
cepted by South Africa.83 The granting of factual power and the fic-
tional treatment of the territory as if it were part of the Mandatory’s
state territory together with relatively weak institutional control, how-
ever, paved the way for a more obvious abuse of powers in the decades
to come.
first formally claimed the possession of sovereignty and initiated a con-
troversy with the League of Nations that resulted in a very vague inter-
pretation of South African sovereignty over the territory which was ac-
cepted by South Africa.83 The granting of factual power and the fic-
tional treatment of the territory as if it were part of the Mandatory’s
state territory together with relatively weak institutional control, how-
ever, paved the way for a more obvious abuse of powers in the decades
to come.
The initial reasons why, according to the League of Nations, the ter-
ritory was to be administered by another state - a society allegedly too
uncivilized to take its governance into its own hands - differed consid-
erably from the later South-African reasons for not leading the territory
towards self-determination and independence. Due to the common
border with the territory it was mandated with, South-Africa claimed a
threat to national security by Soviet Union influences on organizations
operating in the territory, namely the South West Africa People’s Or-
ganization (SWAPO).84
ritory was to be administered by another state - a society allegedly too
uncivilized to take its governance into its own hands - differed consid-
erably from the later South-African reasons for not leading the territory
towards self-determination and independence. Due to the common
border with the territory it was mandated with, South-Africa claimed a
threat to national security by Soviet Union influences on organizations
operating in the territory, namely the South West Africa People’s Or-
ganization (SWAPO).84
81 See note 78.
82 Ermacora, see note 7, 875. This difficulty, although it became most
appar-
ent 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 Ermacora, see note 7, 875.
84 Belfiglio, see note 77, 507.
78 Max
Planck UNYB 9 (2005)
Hence, the reason for continued administration was South-African
national-security and not the well-being of the people of the mandated
territory and their education towards self-government. Although the
Mandate for German South West Africa misses a provision that the ter-
ritory’s population should be gradually led to self-governance, article
22 para. 6 Covenant refers to the interests of the population that are to
be safeguarded and not to the political interests of the Mandatory state.
In addition to the questionable reasons for continuing administration of
the territory by the Mandatory, the treatment of the indigenous popula-
tion of South West Africa, whose interest article 22 para. 6 Covenant
explicitly mentions, gave rise to concern when South-Africa introduced
a system of apartheid in Namibia that contradicted the duty to safe-
guard the well-being of the native population.
national-security and not the well-being of the people of the mandated
territory and their education towards self-government. Although the
Mandate for German South West Africa misses a provision that the ter-
ritory’s population should be gradually led to self-governance, article
22 para. 6 Covenant refers to the interests of the population that are to
be safeguarded and not to the political interests of the Mandatory state.
In addition to the questionable reasons for continuing administration of
the territory by the Mandatory, the treatment of the indigenous popula-
tion of South West Africa, whose interest article 22 para. 6 Covenant
explicitly mentions, gave rise to concern when South-Africa introduced
a system of apartheid in Namibia that contradicted the duty to safe-
guard the well-being of the native population.
b. The Termination of the Mandate
When the League
of Nations dissolved and the United Nations was
created the controversy about the status of Namibia entered into a new
round. Although the League of Nations under which the Mandate Sys-
tem was established no longer existed, in legal terms the mandates con-
tinued. In principle, three different options existed in regard to Manda-
tories and their relation to the community of states and the newly
founded United Nations: (1.) to terminate the mandate and leave the
territories in a state of self-determination and independence; (2.) to
transfer the mandates into the UN Trusteeship System and continue
administration under its conditions; or (3.) to continue the mandate
without transfer and without the League of Nations institutional set-
ting. The last mentioned option is the one with the most difficult legal
status with regard to control of the Mandatory’s continuous admini-
stration.
created the controversy about the status of Namibia entered into a new
round. Although the League of Nations under which the Mandate Sys-
tem was established no longer existed, in legal terms the mandates con-
tinued. In principle, three different options existed in regard to Manda-
tories and their relation to the community of states and the newly
founded United Nations: (1.) to terminate the mandate and leave the
territories in a state of self-determination and independence; (2.) to
transfer the mandates into the UN Trusteeship System and continue
administration under its conditions; or (3.) to continue the mandate
without transfer and without the League of Nations institutional set-
ting. The last mentioned option is the one with the most difficult legal
status with regard to control of the Mandatory’s continuous admini-
stration.
South Africa explicitly refrained from formally transferring her ad-
ministration of the territory she had been mandated with into the UN
Trusteeship System as envisaged by Article 77 of the Charter, despite
numerous resolutions adopted by the UN General Assembly to the ef-
fect that South Africa was obliged to put the territory under UN Trus-
teeship.85 Nevertheless, in addition to the declaration that South Africa
ministration of the territory she had been mandated with into the UN
Trusteeship System as envisaged by Article 77 of the Charter, despite
numerous resolutions adopted by the UN General Assembly to the ef-
fect that South Africa was obliged to put the territory under UN Trus-
teeship.85 Nevertheless, in addition to the declaration that South Africa
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 Na-
South Africa to enter into a trusteeship agreement with the United Na-
Matz, Civilization and the Mandate System under
the League of Nations 79
would comply
with her obligations of the mandate, she also issued re-
ports to the Trusteeship Council. When criticism within the United Na-
tions concerning South Africa’s administration of Namibia grew sig-
nificantly in 1949, South Africa stopped the submission of reports argu-
ing that she was not obliged to report to the United Nations but had
only done so on a voluntary basis.86 Despite the controversy about the
administration of the territory and reporting obligations, South Africa,
once again, confirmed her determination to continue authority in ac-
cordance with the spirit of the mandate.
ports to the Trusteeship Council. When criticism within the United Na-
tions concerning South Africa’s administration of Namibia grew sig-
nificantly in 1949, South Africa stopped the submission of reports argu-
ing that she was not obliged to report to the United Nations but had
only done so on a voluntary basis.86 Despite the controversy about the
administration of the territory and reporting obligations, South Africa,
once again, confirmed her determination to continue authority in ac-
cordance with the spirit of the mandate.
In its Advisory Opinions the ICJ upheld the opinion that the man-
dated territory continued to have an international status, since the man-
date was not terminated with the League of Nation’s dissolution on 18
April 1946.87 Although the court explicitly stated that South Africa was
not competent to alter the status of the territory unilaterally, this did
not abrogate South Africa’s claim to sovereignty over the territory and
the related lack of intent to lead the territory to self-determination and
eventual self-government. Furthermore, criticism concerning the ques-
tion whether South Africa ruled for the well-being of the people in the
mandated territory rose significantly when the Mandatory prepared to
establish a regime based upon apartheid that extended to the territory.
dated territory continued to have an international status, since the man-
date was not terminated with the League of Nation’s dissolution on 18
April 1946.87 Although the court explicitly stated that South Africa was
not competent to alter the status of the territory unilaterally, this did
not abrogate South Africa’s claim to sovereignty over the territory and
the related lack of intent to lead the territory to self-determination and
eventual self-government. Furthermore, criticism concerning the ques-
tion whether South Africa ruled for the well-being of the people in the
mandated territory rose significantly when the Mandatory prepared to
establish a regime based upon apartheid that extended to the territory.
Since Advisory Opinions do not result in decisions that are legally
binding, the ICJ opinions did not lead to any change of behavior on
part of the Mandatory. Furthermore, South Africa’s refusal to submit to
supervision and to cooperation in this respect, contrasted with any ef-
fective supervisory powers by the United Nations. Since the territory
of Namibia was not transferred into the Trusteeship System, the institu-
tion of the Trusteeship Council had no competencies in this matter. The
rather weak powers the League of Nations had held in regard to super-
vision of the Mandatories were now considered to lie with the UN
General Assembly.
binding, the ICJ opinions did not lead to any change of behavior on
part of the Mandatory. Furthermore, South Africa’s refusal to submit to
supervision and to cooperation in this respect, contrasted with any ef-
fective supervisory powers by the United Nations. Since the territory
of Namibia was not transferred into the Trusteeship System, the institu-
tion of the Trusteeship Council had no competencies in this matter. The
rather weak powers the League of Nations had held in regard to super-
vision of the Mandatories were now considered to lie with the UN
General Assembly.
When South Africa showed no signs of intent to comply with the
obligations under the mandate, Ethiopia and Liberia, relying upon arti-
cle 7 of the 1920 Mandate,88 submitted claims to the ICJ stating that
obligations under the mandate, Ethiopia and Liberia, relying upon arti-
cle 7 of the 1920 Mandate,88 submitted claims to the ICJ stating that
tions, see
International Status of South West Africa, ICJ Reports 1950, 128 et seq. (139 et seq. and 144).
86 On the different positions see A/RES/337 (IV) of 6 December 1949.
87 See e.g. International Status of South West Africa, ICJ Reports 1950, 128
et
seq.
88 In its relevant part, the article reads as following: “The Mandatory
agrees
that, if any dispute whatever should arise
between the Mandatory and an-
80 Max
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South Africa
seriously violated her duties as a Mandatory. The ICJ’s de-
cisions in this matter revealed the weaknesses of proceedings according
to the Statute for the ICJ in general and did little to establish trust in the
efficient settling of disputes in international law. Although the ICJ had
on a preliminary basis in 1962 rejected South Africa’s claim that the ap-
plicants lacked standing to bring the case before the court, it dismissed
the applicants’ claim four years later finding that they lacked a legal in-
terest in the settling of the matter.89
cisions in this matter revealed the weaknesses of proceedings according
to the Statute for the ICJ in general and did little to establish trust in the
efficient settling of disputes in international law. Although the ICJ had
on a preliminary basis in 1962 rejected South Africa’s claim that the ap-
plicants lacked standing to bring the case before the court, it dismissed
the applicants’ claim four years later finding that they lacked a legal in-
terest in the settling of the matter.89
In contrast thereto, the United Nations was held to have such an in-
terest in claiming compliance with the obligations accepted by South
Africa under the mandate. However, the United Nations as an interna-
tional organization was excluded from applying for a binding court de-
cision. According to article 34 para. 1 of the ICJ Statute only states can
be parties to dispute settlement procedures. Likewise, the obligation to
follow a decision made by the ICJ extends only to states that are parties
to the relevant dispute, Article 94 UN Charter. In accordance with Ar-
ticle 96 para. 1 UN Charter the only means to achieve a ruling by the
ICJ on the matter was the application for another non-binding Advi-
sory Opinion by the General Assembly or the Security Council.
terest in claiming compliance with the obligations accepted by South
Africa under the mandate. However, the United Nations as an interna-
tional organization was excluded from applying for a binding court de-
cision. According to article 34 para. 1 of the ICJ Statute only states can
be parties to dispute settlement procedures. Likewise, the obligation to
follow a decision made by the ICJ extends only to states that are parties
to the relevant dispute, Article 94 UN Charter. In accordance with Ar-
ticle 96 para. 1 UN Charter the only means to achieve a ruling by the
ICJ on the matter was the application for another non-binding Advi-
sory Opinion by the General Assembly or the Security Council.
Finally, lacking effective judicial possibilities to influence South Af-
rica’s behavior concerning the territory, the United Nations decided on
27 October 1966 to terminate the mandate because of South Africa’s
constant lack of fulfillment of her obligations under the mandate.90 As a
consequence of the termination of the mandate, the United Nations
claimed that the territory had come under direct responsibility of the
United Nations and on 19 May 1967 the organization established the
UN Council for South West Africa that was later designated as the UN
Council for Namibia.91 The UN Security Council quickly recognized
the mandate’s termination and reacted to the new situation by calling
upon South Africa to withdraw her administration over the territory as
the continuation of South African presence in Namibia was contrary to
rica’s behavior concerning the territory, the United Nations decided on
27 October 1966 to terminate the mandate because of South Africa’s
constant lack of fulfillment of her obligations under the mandate.90 As a
consequence of the termination of the mandate, the United Nations
claimed that the territory had come under direct responsibility of the
United Nations and on 19 May 1967 the organization established the
UN Council for South West Africa that was later designated as the UN
Council for Namibia.91 The UN Security Council quickly recognized
the mandate’s termination and reacted to the new situation by calling
upon South Africa to withdraw her administration over the territory as
the continuation of South African presence in Namibia was contrary to
other 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 Inter-
national Justice provided for by Article 14 of the Covenant of the League
of Nations.”
application of the provisions of the Mandate, such dispute, if it cannot be
settled by negotiation, shall be submitted to the Permanent Court of Inter-
national Justice provided for by Article 14 of the Covenant of the League
of Nations.”
89 South West Africa, Second Phase, ICJ Reports 1966, 6 et seq.,
particularly
paras 15 et seq.
90 A/RES/2145 (XXI) of 27 October 1966.
91 As to the composition of the Council, see D.S. Haase, “Namibia Council”,
in: Wolfrum, see note 7, 1995, 914 et seq.
Matz, Civilization and the Mandate System under
the League of Nations 81
international
law and therefore illegal.92 Furthermore, the Security
Council stated that due to the illegality of South African presence in
Namibia, all acts taken by the South African Government in relation to
Namibia after the termination of the Mandate were illegal and void.93
Council stated that due to the illegality of South African presence in
Namibia, all acts taken by the South African Government in relation to
Namibia after the termination of the Mandate were illegal and void.93
When the Security Council requested another Advisory Opinion by the ICJ to clarify the legality of the
termination of the mandate and its consequences, the court confirmed the UN’s position.94 In its
Advisory Opinion the ICJ held that:
“the continued
presence of South Africa in Namibia being illegal, South Africa is under obligation to withdraw
its administration from Namibia
immediately”.95
By S/ES/301 (1971) of 20 October 1971 the United Nations en-
dorsed the court’s conclusions, but just like previous resolutions
adopted by the General Assembly or the Security Council on the issue,
South Africa disregarded the decision and the ICJ’s opinion. The vote
taken by the 29th General Assembly to deprive South Africa of its seat
in the Assembly as a sanction to her continuous refusal to comply with
United Nations and the ICJ’s decisions on Namibia did not lead to the
expulsion from the United Nations as such and did not result in a
change of behavior on South Africa’s part.
dorsed the court’s conclusions, but just like previous resolutions
adopted by the General Assembly or the Security Council on the issue,
South Africa disregarded the decision and the ICJ’s opinion. The vote
taken by the 29th General Assembly to deprive South Africa of its seat
in the Assembly as a sanction to her continuous refusal to comply with
United Nations and the ICJ’s decisions on Namibia did not lead to the
expulsion from the United Nations as such and did not result in a
change of behavior on South Africa’s part.
c. Namibia’s Independence
In the light of
the circumstance that South Africa did not give up her
factual authority over the Namibian territory, the United Nations un-
dertook a variety of political strategies to pave the way for eventual in-
dependence. What seemed impossible at the time of the League of Na-
tions - an immediate right to self-determination for the Namibian peo-
ple - was reaffirmed constantly and accompanied by more concrete ac-
tion. The concept of administration as a “sacred trust of civilisation”
had changed over the years. With the creation of the United Nations
and its Trusteeship System foreign authority over territories was in this
context understood as assistance to the realization of the peoples’ right
factual authority over the Namibian territory, the United Nations un-
dertook a variety of political strategies to pave the way for eventual in-
dependence. What seemed impossible at the time of the League of Na-
tions - an immediate right to self-determination for the Namibian peo-
ple - was reaffirmed constantly and accompanied by more concrete ac-
tion. The concept of administration as a “sacred trust of civilisation”
had changed over the years. With the creation of the United Nations
and its Trusteeship System foreign authority over territories was in this
context understood as assistance to the realization of the peoples’ right
92 S/RES/264 (1969) of 20 March 1969 and S/RES/269 (1969) of 12 August
1969.
93 S/RES/276 (1970) of 30 January 1970.
94 Legal Consequences for States of the Continued Presence of South Africa
in Namibia
(South West Africa) notwithstanding Security Council Resolu-
tion 276 (1970),
ICJ Reports 1971, 16 et seq.
95 Ibid., para. 133.
82 Max
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to
self-determination. South Africa, however, still relied upon the dis-
tinction between civilization represented by the white South African
Government and the “uncivilized” natives. She had apparently not fol-
lowed this new understanding when she refused to transfer Namibia
into the Trusteeship System and instead acted in accordance with her
divergent comprehension of civilization.96 The refusal to transfer the
territory into Trusteeship together with the refusal to withdraw from
Namibia and to grant it independence openly contradicted South Af-
rica’s proclaimed policy of self-determination.
tinction between civilization represented by the white South African
Government and the “uncivilized” natives. She had apparently not fol-
lowed this new understanding when she refused to transfer Namibia
into the Trusteeship System and instead acted in accordance with her
divergent comprehension of civilization.96 The refusal to transfer the
territory into Trusteeship together with the refusal to withdraw from
Namibia and to grant it independence openly contradicted South Af-
rica’s proclaimed policy of self-determination.
When political pressure rose significantly in the 1970s this was only
to a lesser extent due to a different or stronger interpretation of the
right to self-determination compared to the time of the founding of the
United Nations, but mainly due to the many new states that had
emerged during the process of world-wide decolonization. These states
were particularly sensitive concerning questions of foreign and illegal
rule over territories. The result from a debate that was dominated by
“militant Africans”97 consisted of a resolution that endorsed a report on
resort to “armed struggle” that at least partially contradicted the UN
Charter.98
to a lesser extent due to a different or stronger interpretation of the
right to self-determination compared to the time of the founding of the
United Nations, but mainly due to the many new states that had
emerged during the process of world-wide decolonization. These states
were particularly sensitive concerning questions of foreign and illegal
rule over territories. The result from a debate that was dominated by
“militant Africans”97 consisted of a resolution that endorsed a report on
resort to “armed struggle” that at least partially contradicted the UN
Charter.98
The UN Council for Namibia that was established as the legal ad-
ministering authority until the territory’s independence was a subsidi-
ary organ of the General Assembly according to Article 22 of the Char-
ter. Although the Council for Namibia was charged with inter alia ad-
ministrative and legislative functions until a Namibian legislative as-
sembly was established, its actions failed to gain any influence on the
internal affairs of the territory due to South Africa’s refusal to recog-
nize competencies of the Council for Namibia. However, in regard to
the external affairs of the territory the Council for Namibia was more
successful in representing Namibia in conferences and concerning in-
ternational treaties convened under the auspices of the United Na-
tions.99
ministering authority until the territory’s independence was a subsidi-
ary organ of the General Assembly according to Article 22 of the Char-
ter. Although the Council for Namibia was charged with inter alia ad-
ministrative and legislative functions until a Namibian legislative as-
sembly was established, its actions failed to gain any influence on the
internal affairs of the territory due to South Africa’s refusal to recog-
nize competencies of the Council for Namibia. However, in regard to
the external affairs of the territory the Council for Namibia was more
successful in representing Namibia in conferences and concerning in-
ternational treaties convened under the auspices of the United Na-
tions.99
The main role of the United Nations in the question of Namibia and
the right to self-governance of its people lay in the search for a political
solution. In particular the Security Council emphasized the need for
the right to self-governance of its people lay in the search for a political
solution. In particular the Security Council emphasized the need for
96 Belfiglio, see note 77, 512.
97 Ibid., 513.
98 See A/RES/31/146 of 20 December 1976.
99 For an overview see E. Klein, “Namibia”, EPIL III (1997), 485 et seq. (488
et seq.).
Matz, Civilization and the Mandate System under
the League of Nations 83
free elections
under UN supervision and control.100 To achieve this aim, the United Nations and the South African
Government had to cooperate, which led to the peculiar situation that the
United Nations as the de iure administrator had to negotiate with the
illegal but de
facto administrator of the territory in order to finally establish a
situation of selfdetermination
for the Namibian people.
Only when Canada, France, Germany, the United Kingdom and the
United States as the five Western members of the Security Council in
1978 formed the so-called “Contact Group” and made concrete pro-
posals for achieving Namibia’s independence by the end of 1978 could
the assent by South Africa and SWAPO101 be attained. The Contact
Group’s diplomatic efforts have to be regarded as an “extra-UN” initia-
tive that responded to the failure of the United Nations to solve the
Namibian problem. Yet, it did not operate without linkage to the
United Nations. Not only did the United Nations take up the main
Contact Group’s proposals in its Security Council Resolution 435
(1978), the proposals also foresaw an institutional role for the United
Nations in the independence process. The most important institutional
proposal made by the Contact Group in relation to the UN’s role in as-
sisting Namibia in the time of transition from South African rule was
the establishment of the UN Transition Assistance Group (UNTAG).
This institution, when it finally came into operation, consisted of a civil
and a military section to effectively safeguard a peaceful process of self-
determination by free and fair elections.
United States as the five Western members of the Security Council in
1978 formed the so-called “Contact Group” and made concrete pro-
posals for achieving Namibia’s independence by the end of 1978 could
the assent by South Africa and SWAPO101 be attained. The Contact
Group’s diplomatic efforts have to be regarded as an “extra-UN” initia-
tive that responded to the failure of the United Nations to solve the
Namibian problem. Yet, it did not operate without linkage to the
United Nations. Not only did the United Nations take up the main
Contact Group’s proposals in its Security Council Resolution 435
(1978), the proposals also foresaw an institutional role for the United
Nations in the independence process. The most important institutional
proposal made by the Contact Group in relation to the UN’s role in as-
sisting Namibia in the time of transition from South African rule was
the establishment of the UN Transition Assistance Group (UNTAG).
This institution, when it finally came into operation, consisted of a civil
and a military section to effectively safeguard a peaceful process of self-
determination by free and fair elections.
In the years following the first proposals by the Contact Group, the
implementation of Security Council Resolution 435 (1978) was the fo-
cus of UN activities concerning Namibia. South Africa seriously de-
layed the process by attempting to link the implementation of the reso-
lution to withdrawal of Cuban forces from Angola.102 Arguably the
“linkage regime” that was sponsored by the United States, despite the
implementation of Security Council Resolution 435 (1978) was the fo-
cus of UN activities concerning Namibia. South Africa seriously de-
layed the process by attempting to link the implementation of the reso-
lution to withdrawal of Cuban forces from Angola.102 Arguably the
“linkage regime” that was sponsored by the United States, despite the
100
S/RES/385 (1976) of 30 January 1976 that called for such elections was
passed by an unanimous vote.
passed by an unanimous vote.
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.
the United Nations see Klein, see note 99, 489 and Belfiglio, see note 77,
507 et seq.
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.
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.
84 Max
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significant
delays, succeeded eventually, when South Africa, Angola,
Cuba and the United States entered into negotiations.103 A break-
through in diplomatic activities came in 1988, when South Africa, An-
gola and Cuba affirmed the right to self-determination of the people in
the region and South Africa and Cuba promised to withdraw troops
from Namibia and Angola respectively in the tripartite Agreement on
the Independence of Namibia on 22 December 1988.104
Cuba and the United States entered into negotiations.103 A break-
through in diplomatic activities came in 1988, when South Africa, An-
gola and Cuba affirmed the right to self-determination of the people in
the region and South Africa and Cuba promised to withdraw troops
from Namibia and Angola respectively in the tripartite Agreement on
the Independence of Namibia on 22 December 1988.104
The first general elections to a constituent assembly that were rec-
ognized and supervised by the United Nations105 took place in No-
vember 1989. After the elaboration of a Namibian constitution and its
adoption by the Assembly, Namibia finally gained independence on 21
March 1990.
ognized and supervised by the United Nations105 took place in No-
vember 1989. After the elaboration of a Namibian constitution and its
adoption by the Assembly, Namibia finally gained independence on 21
March 1990.
d. UNTAG as a Model for State-Building?
While the United
Nations attempted for decades to pave the way to free
and fair elections with its proposals and resolutions, it ultimately failed
to achieve the essential consent by South Africa, Angola and Cuba for a
political solution. UN efforts, e.g. by the Council for Namibia, were
unsuccessful due to South African resistance. Yet, the United Nations
gained institutional weight again when it was “re-introduced” into the
political process to provide for a mission to ensure that the first elec-
tions were free and fair: UNTAG operated under a Secretary-General
Special Representative for Namibia and performed civil, police and
military tasks. This specific UN function was important to ensure the
final success of decades of struggle for self-determination of the Namib-
ian people.
and fair elections with its proposals and resolutions, it ultimately failed
to achieve the essential consent by South Africa, Angola and Cuba for a
political solution. UN efforts, e.g. by the Council for Namibia, were
unsuccessful due to South African resistance. Yet, the United Nations
gained institutional weight again when it was “re-introduced” into the
political process to provide for a mission to ensure that the first elec-
tions were free and fair: UNTAG operated under a Secretary-General
Special Representative for Namibia and performed civil, police and
military tasks. This specific UN function was important to ensure the
final success of decades of struggle for self-determination of the Namib-
ian people.
One might say that in the context of discussing models for current
and future state-building under international involvement it is not suffi-
cient to step in at a rather late stage of the process to safeguard elec-
tions. It is true that a mission like UNTAG with a largely political
mandate - despite its military section - is not comparable to political
trusteeship. However, it is not the purpose of the contributions to this
and future state-building under international involvement it is not suffi-
cient to step in at a rather late stage of the process to safeguard elec-
tions. It is true that a mission like UNTAG with a largely political
mandate - despite its military section - is not comparable to political
trusteeship. However, it is not the purpose of the contributions to this
103 Soni, see note 77, 565.
104 Doc.
S/20325. An online version of the agreement can be accessed at
<http://www.c-r.org/accord/ang/accord15/c07.shtml>, last visited on 6
<http://www.c-r.org/accord/ang/accord15/c07.shtml>, last visited on 6
March 2005.
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.
operating in Namibia were not recognized due to a lack of freedom and
fairness of procedures.
Matz, Civilization and the Mandate System under
the League of Nations 85
Volume to create
fixed models for state-building. Every case of state-
building differs in regard to its historical and political setting. There can
only be elements that can be defined as desirable in the respective con-
text. One of these elements is the safeguarding of free elections, no mat-
ter how the situation of regime change was actually achieved and how it
has to be assessed from the view of international law. The safeguarding
of free elections is a task for which the United Nations or another
credible and legitimate organization is absolutely necessary to counter
allegations of unilateral (Western) domination likely to occur otherwise.
building differs in regard to its historical and political setting. There can
only be elements that can be defined as desirable in the respective con-
text. One of these elements is the safeguarding of free elections, no mat-
ter how the situation of regime change was actually achieved and how it
has to be assessed from the view of international law. The safeguarding
of free elections is a task for which the United Nations or another
credible and legitimate organization is absolutely necessary to counter
allegations of unilateral (Western) domination likely to occur otherwise.
Particularly with a view to the situation in Iraq, UN involvement at
a later stage, e.g. to safeguard the holding of free elections and to further
accompany the following period of a constitutional development, is
better for the organization’s credibility as well as for the acceptance of
the results in the emerging state in question which helps avoid giving
way to unilateralism that is likely to lead to ressentiments. Yet, with
view to the fuller picture of state-building under international law, a
mission like UNTAG can only be part of a system that takes interna-
tional political trusteeship seriously. Insofar, the UN’s role in Na-
mibia’s struggle for independence has elements of failure, i.e. in the light
of years of unsuccessful attempts to change an occupation illegal under
international law, as well as a success.
a later stage, e.g. to safeguard the holding of free elections and to further
accompany the following period of a constitutional development, is
better for the organization’s credibility as well as for the acceptance of
the results in the emerging state in question which helps avoid giving
way to unilateralism that is likely to lead to ressentiments. Yet, with
view to the fuller picture of state-building under international law, a
mission like UNTAG can only be part of a system that takes interna-
tional political trusteeship seriously. Insofar, the UN’s role in Na-
mibia’s struggle for independence has elements of failure, i.e. in the light
of years of unsuccessful attempts to change an occupation illegal under
international law, as well as a success.
e. League of Nations and UN involvement in the
Issue of Namibia:
A Brief Conclusion
A Brief Conclusion
The only gradual
conceptual difference between administration of class
C mandates and colonial rule, the lack of effective control and the am-
biguous behavior concerning South Africa’s early claim to sovereignty
over Namibian territory are clearly significant failures of the League of
Nations’ Mandate System. Nevertheless, the drafting of the specific
Mandate for German South West Africa contributed to the institutional
weaknesses by lacking any references to the status of the territory as
well as to eventual self-governance of the native people. Consequently,
even at the times when South Africa still affirmed her will to exercise
her powers in the spirit of the mandate, there was hardly any possibility
to insist on granting self-determination to the people and on cutting
back South African competencies by relying on the wording of the
mandate. That South Africa contradicted her own proclaimed policy of
self-determination is a distinct matter.
C mandates and colonial rule, the lack of effective control and the am-
biguous behavior concerning South Africa’s early claim to sovereignty
over Namibian territory are clearly significant failures of the League of
Nations’ Mandate System. Nevertheless, the drafting of the specific
Mandate for German South West Africa contributed to the institutional
weaknesses by lacking any references to the status of the territory as
well as to eventual self-governance of the native people. Consequently,
even at the times when South Africa still affirmed her will to exercise
her powers in the spirit of the mandate, there was hardly any possibility
to insist on granting self-determination to the people and on cutting
back South African competencies by relying on the wording of the
mandate. That South Africa contradicted her own proclaimed policy of
self-determination is a distinct matter.
The denial of an explicit right to self-determination, although it can
be explained by reference to the Eurocentric distinction between the
be explained by reference to the Eurocentric distinction between the
86 Max
Planck UNYB 9 (2005)
civilized and
the uncivilized at the time of the League of Nations, is a
significant shortcoming of the Mandate System that facilitated a de facto
annexation of class C territories. However, despite the circumstance
that the system facilitated the abuse of power by the Mandatory and,
hence, contributed to the illegal occupation, it was first of all South Af-
rica’s lack of will to act in accordance with international law that led to
a continuous refusal of a right to self-determination even after this right
was formally recognized and constantly reaffirmed, i.e. after the foun-
dation of the United Nations. Furthermore, although the case of Na-
mibia reflects the shortcomings of the Mandate System as well as cer-
tain weaknesses of the United Nations, it shall not be overlooked that
Namibia was the only case in which a Mandatory illegally occupied the
territory subjected to administration by the League of Nations.
significant shortcoming of the Mandate System that facilitated a de facto
annexation of class C territories. However, despite the circumstance
that the system facilitated the abuse of power by the Mandatory and,
hence, contributed to the illegal occupation, it was first of all South Af-
rica’s lack of will to act in accordance with international law that led to
a continuous refusal of a right to self-determination even after this right
was formally recognized and constantly reaffirmed, i.e. after the foun-
dation of the United Nations. Furthermore, although the case of Na-
mibia reflects the shortcomings of the Mandate System as well as cer-
tain weaknesses of the United Nations, it shall not be overlooked that
Namibia was the only case in which a Mandatory illegally occupied the
territory subjected to administration by the League of Nations.
The approach that was pursued by the United Nations in regard to Namibia is ambivalent. On the one hand the
peaceful, political solution preferred by the United Nations was in the end
successful; on the other hand the
weakness of the political strategy is reflected by the fact that the process from South Africa’s refusal to
cooperate with the United Nations
in the matter of Namibia until the latter’s independence took almost 40 years. Furthermore, the breakthrough
in diplomatic negotiations was not a result of direct UN involvement, although
the years of political
efforts shall not be underestimated.
It shall not be denied that state and nation-building are processes
that require much time. Yet, in the case of Namibia it was not the actual
transitional period but the political process of achieving a stage of tran-
sition that took the most time. When one takes into consideration that
the United Nations and, in particular, the Security Council were weak-
ened considerably during the time of the Cold War, it is questionable
whether there actually have been missed opportunities that would have
led to a more straight-forward process of independence. In this context
it shall be again noted that South Africa claimed a threat to her national
security by the Soviet Union’s activities in Africa and used this argu-
ment to justify her continuing de facto annexation of Namibia.106 UN
Security Council Resolution 435 that adopted the proposal of the Con-
tact Group was only possible, because the Soviet Union finally agreed
to abstain from a negative vote. The delay in pursuing the process of in-
dependence by the United States and South African linkage of the ques-
tion of Namibia with the withdrawal of Cuban troops from Angola is
another example for the particularities of the Cold War era.
that require much time. Yet, in the case of Namibia it was not the actual
transitional period but the political process of achieving a stage of tran-
sition that took the most time. When one takes into consideration that
the United Nations and, in particular, the Security Council were weak-
ened considerably during the time of the Cold War, it is questionable
whether there actually have been missed opportunities that would have
led to a more straight-forward process of independence. In this context
it shall be again noted that South Africa claimed a threat to her national
security by the Soviet Union’s activities in Africa and used this argu-
ment to justify her continuing de facto annexation of Namibia.106 UN
Security Council Resolution 435 that adopted the proposal of the Con-
tact Group was only possible, because the Soviet Union finally agreed
to abstain from a negative vote. The delay in pursuing the process of in-
dependence by the United States and South African linkage of the ques-
tion of Namibia with the withdrawal of Cuban troops from Angola is
another example for the particularities of the Cold War era.
106 See Belfiglio, see note 77, 507
Matz, Civilization and the Mandate System under
the League of Nations 87
IV. From Mandates to Trusts
As already
mentioned in the context of the case-study on Namibia, the
breakdown of the League of Nations in the course of World War II and
its dissolution on 18 April 1946 did not result in the abrogation of the
Mandate System.107 However, international institutional control over
the Mandatories, while never particularly strong, ended completely. The
ending of institutional supervision destroyed one of the theoretical pil-
lars of the Mandate System: control over those powers mandated with
the administration of a territory and prevention of annexation of the
former colonies. Formally, the Mandate System was only terminated
completely, when the United Nations terminated South Africa’s man-
date for the administration of Namibia in 1966, i.e. when the last man-
date concluded under the League of Nations’ system ended.
breakdown of the League of Nations in the course of World War II and
its dissolution on 18 April 1946 did not result in the abrogation of the
Mandate System.107 However, international institutional control over
the Mandatories, while never particularly strong, ended completely. The
ending of institutional supervision destroyed one of the theoretical pil-
lars of the Mandate System: control over those powers mandated with
the administration of a territory and prevention of annexation of the
former colonies. Formally, the Mandate System was only terminated
completely, when the United Nations terminated South Africa’s man-
date for the administration of Namibia in 1966, i.e. when the last man-
date concluded under the League of Nations’ system ended.
Of the other mandated territories, some gained self-governance
when the League of Nations was dissolved, while controlled interna-
tional administration was re-established for others. Whereas those
mandated territories that had been classified as A mandates, with the
exception of Palestine, were finally granted full independence in addi-
tion to the already established structures for provisional self-
governance, the others, with the exception of Namibia, were voluntarily
transferred into the Trusteeship System established by the newly
founded United Nations.
when the League of Nations was dissolved, while controlled interna-
tional administration was re-established for others. Whereas those
mandated territories that had been classified as A mandates, with the
exception of Palestine, were finally granted full independence in addi-
tion to the already established structures for provisional self-
governance, the others, with the exception of Namibia, were voluntarily
transferred into the Trusteeship System established by the newly
founded United Nations.
When the United Nations was established, political thinking in re-
gard to colonialism and self-determination of peoples in dependent ter-
ritories had changed considerably. After Roosevelt and Churchill had
proclaimed the right to self-government for all peoples of the world in
the Atlantic Charter in 1941,108 the right to self-determination became
one of the central principles of the new collective efforts for world
peace and security. In addition to an acknowledgement of a right to
self-determination, the Trusteeship System sought to lead the Trust Ter-
ritories to “full statehood”,109 i.e. sovereignty and membership in the
community of states and its relevant organizations. This objective goes
further than mere proclamation of a right to self-determination, because
it explicitly recognizes the need to assist with state-building in order to
create sovereign and equal actors in international law.
gard to colonialism and self-determination of peoples in dependent ter-
ritories had changed considerably. After Roosevelt and Churchill had
proclaimed the right to self-government for all peoples of the world in
the Atlantic Charter in 1941,108 the right to self-determination became
one of the central principles of the new collective efforts for world
peace and security. In addition to an acknowledgement of a right to
self-determination, the Trusteeship System sought to lead the Trust Ter-
ritories to “full statehood”,109 i.e. sovereignty and membership in the
community of states and its relevant organizations. This objective goes
further than mere proclamation of a right to self-determination, because
it explicitly recognizes the need to assist with state-building in order to
create sovereign and equal actors in international law.
107
Different Deiwert, see note 5, 779, who claims that the Mandate System
was terminated at this time.
was terminated at this time.
108 See above note 16.
109 Deiwert, see note 5, 779.
88 Max
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When colonial territories started to develop independence move-
ments and the European colonial powers faced difficulties to uphold
colonial rule under the strains of the war and post-war era, public atti-
tude generally shifted away from colonial aspirations.110 The process of
decolonization was fuelled by this circumstance, yet, the creation of the
new UN Trusteeship System was, like its predecessor, again an issue of
controversy from the time of its first discussion at the Yalta Conference
in 1945 onwards and characterized by the necessity of compromise.111
ments and the European colonial powers faced difficulties to uphold
colonial rule under the strains of the war and post-war era, public atti-
tude generally shifted away from colonial aspirations.110 The process of
decolonization was fuelled by this circumstance, yet, the creation of the
new UN Trusteeship System was, like its predecessor, again an issue of
controversy from the time of its first discussion at the Yalta Conference
in 1945 onwards and characterized by the necessity of compromise.111
Inter alia because the relatively sparsely worded provisions on the
Mandate System in the Covenant had led to difficulties of interpretation
and operation of the mandates, after the end of World War II states
aimed to modify the League of Nations’ Mandate System and to regu-
late the new system in considerable detail, without abrogating the prin-
ciple idea of administrating territories on their way to independence.
The idea of political and administrative trusteeship that had already
been an underlying concept of the Mandate System was stressed by the
explicit labeling of the UN institution as the Trusteeship System. This
new institution was established by Chapters XII and XIII of the UN
Charter and was indeed significantly more detailed than the Mandate
System that consisted of only one, albeit lengthy, article in the Cove-
nant.
Mandate System in the Covenant had led to difficulties of interpretation
and operation of the mandates, after the end of World War II states
aimed to modify the League of Nations’ Mandate System and to regu-
late the new system in considerable detail, without abrogating the prin-
ciple idea of administrating territories on their way to independence.
The idea of political and administrative trusteeship that had already
been an underlying concept of the Mandate System was stressed by the
explicit labeling of the UN institution as the Trusteeship System. This
new institution was established by Chapters XII and XIII of the UN
Charter and was indeed significantly more detailed than the Mandate
System that consisted of only one, albeit lengthy, article in the Cove-
nant.
Like its forerunner, the Trusteeship System set up structures for the
administration of certain territories. Yet, in regard to security, oversight
and economic relationships between the trusteeship territory and the
administrating power, the two systems differed considerably.112 A core
element of the system was UN supervision of the administration. Ex-
periences with the Mandate System led to a tightening of institutional
control over the Mandatory’s management. Furthermore, the obliga-
tions imposed upon the administering authority were formulated more
stringently to avoid ambiguity and de facto annexation of territories.
administration of certain territories. Yet, in regard to security, oversight
and economic relationships between the trusteeship territory and the
administrating power, the two systems differed considerably.112 A core
element of the system was UN supervision of the administration. Ex-
periences with the Mandate System led to a tightening of institutional
control over the Mandatory’s management. Furthermore, the obliga-
tions imposed upon the administering authority were formulated more
stringently to avoid ambiguity and de facto annexation of territories.
110 Ibid., 777.
111 Ibid., 777 et seq.
112 Ibid., 778.
112 Ibid., 778.
Matz, Civilization and the Mandate System under
the League of Nations 89
V. Conclusions: Are there
Lessons to be Learnt from the
Mandate System?
Mandate System?
When analyzing
the experiences with
administration of non-self-
governing territories under the League of Nations and the United Na-
tions, it is questionable whether the Mandate System has much to offer
for the establishment of models for current and future transitional re-
gimes under foreign involvement. Certainly, the Mandate System as
such cannot be directly employed as a model for current or future state-
building activities for a variety of reasons. Not only the colonial context
under which it was established, but also the distinction between the
civilized and the uncivilized and the corresponding lack of a right to
self-determination for the latter forbid its immediate application as a
prototype transitional regime. In this context the Mandate System
seems too much a child of its own time to be of significant relevance to-
day.
governing territories under the League of Nations and the United Na-
tions, it is questionable whether the Mandate System has much to offer
for the establishment of models for current and future transitional re-
gimes under foreign involvement. Certainly, the Mandate System as
such cannot be directly employed as a model for current or future state-
building activities for a variety of reasons. Not only the colonial context
under which it was established, but also the distinction between the
civilized and the uncivilized and the corresponding lack of a right to
self-determination for the latter forbid its immediate application as a
prototype transitional regime. In this context the Mandate System
seems too much a child of its own time to be of significant relevance to-
day.
However, it is too narrow a perspective to regard the Mandate Sys-
tem only as the historical predecessor of the Trusteeship System and not
to analyze more closely its elements and, particularly, its many short-
comings with a view to current and future assistance to state-building
processes. The main idea that formed both the Mandate System and the
UN Trusteeship System is the concept of political trusteeship. This un-
derlying concept has to be assessed in regard to its ability to be applied
in the context of modern state-building efforts, i.e. without reference to
past colonial structures. Even if, after an evaluation, one can find no
positive elements in the idea of trusteeship at all, some lessons can at
least be learnt from the deficiencies of the Mandate System with a view
to establishing feasible United Nations missions in the future. Two dif-
ferent issues must be distinguished: the institutional shortcomings and
especially problems concerning effective institutional supervision on
the one hand and the underlying legal and theoretical difficulties that
might also lead to ressentiments on the other.
tem only as the historical predecessor of the Trusteeship System and not
to analyze more closely its elements and, particularly, its many short-
comings with a view to current and future assistance to state-building
processes. The main idea that formed both the Mandate System and the
UN Trusteeship System is the concept of political trusteeship. This un-
derlying concept has to be assessed in regard to its ability to be applied
in the context of modern state-building efforts, i.e. without reference to
past colonial structures. Even if, after an evaluation, one can find no
positive elements in the idea of trusteeship at all, some lessons can at
least be learnt from the deficiencies of the Mandate System with a view
to establishing feasible United Nations missions in the future. Two dif-
ferent issues must be distinguished: the institutional shortcomings and
especially problems concerning effective institutional supervision on
the one hand and the underlying legal and theoretical difficulties that
might also lead to ressentiments on the other.
1. Institutional Conditions
In regard to
institutional failures of the Mandate System one must not
forget that it operated for fewer than twenty years, which - in terms of
state-building processes - is not a long period of time to gain funda-
mental practical experiences. Yet, some problems with the system be-
came apparent even during the relatively short time of its operation.
forget that it operated for fewer than twenty years, which - in terms of
state-building processes - is not a long period of time to gain funda-
mental practical experiences. Yet, some problems with the system be-
came apparent even during the relatively short time of its operation.
90 Max
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The main
shortcoming that was reflected by a number of unresolved or problematic
issues resulted from
the limited competencies
of the League of Nations concerning the Mandate
System. Information about the
situation in the mandated territories was limited, since the League of Nations relied exclusively upon the annual
reports. Inspection visits were
not provided for and never carried out.
Any future foreign involvement has to avoid such weak competen-
cies concerning the supervision of the power undertaking administra-
tive activities. For UN state-building activities under Chapter VII of
the UN Charter the supervision of the involvement is strictly regulated.
Supervision and accountability in regard to the organization113 is also
central for other UN missions that do not come under Chapter VII.
However, if certain single states accept responsibility for state-building
and administration of territories with the approval of the United Na-
tions, supervision and accountability must be safeguarded to avoid a
situation of abuse of powers as experienced under the League of Na-
tions.
cies concerning the supervision of the power undertaking administra-
tive activities. For UN state-building activities under Chapter VII of
the UN Charter the supervision of the involvement is strictly regulated.
Supervision and accountability in regard to the organization113 is also
central for other UN missions that do not come under Chapter VII.
However, if certain single states accept responsibility for state-building
and administration of territories with the approval of the United Na-
tions, supervision and accountability must be safeguarded to avoid a
situation of abuse of powers as experienced under the League of Na-
tions.
That the colonial past and neo-colonial thinking are left behind must
also be expressed by the institutions involved in state and nation build-
ing. A revival of the UN Trusteeship Council is not feasible, no matter
how effective the concept of trusteeship may be, since the institution it-
self is, in the mind of many former colonies, inseparably linked to a
slow and painful and not always successful process of decolonization.
Hence, one will have to distinguish between certain ideas and lessons
learnt from the Mandate System of the League of Nations and the UN
Trusteeship System, e.g. the political trusteeship model itself, on the one
hand and the institutional setting on the other.
also be expressed by the institutions involved in state and nation build-
ing. A revival of the UN Trusteeship Council is not feasible, no matter
how effective the concept of trusteeship may be, since the institution it-
self is, in the mind of many former colonies, inseparably linked to a
slow and painful and not always successful process of decolonization.
Hence, one will have to distinguish between certain ideas and lessons
learnt from the Mandate System of the League of Nations and the UN
Trusteeship System, e.g. the political trusteeship model itself, on the one
hand and the institutional setting on the other.
2. The Legal Dimension
With a view to
the legal dimension of difficulties future trusteeship
models have to face, the issues of sovereignty and self-determination
remain particularly prominent examples. These issues were already
problematic at the times of the Mandate System, yet the difficulties have
slightly changed. At the creation of the League of Nations the issue of
models have to face, the issues of sovereignty and self-determination
remain particularly prominent examples. These issues were already
problematic at the times of the Mandate System, yet the difficulties have
slightly changed. At the creation of the League of Nations the issue of
113
Whether accountability should not foremost be owed to the people living
in the administered territory is a question to be distinguished from the ac-
countability in relation to the organization approving the administration,
in the administered territory is a question to be distinguished from the ac-
countability in relation to the organization approving the administration,
e.g. the United Nations or in early times the
League of Nations.
Matz, Civilization and the Mandate System under
the League of Nations 91
sovereignty was
an issue of concern, both because a Eurocentric under-
standing of international law aimed at the exclusion of “uncivilized” na-
tions from the definition of a sovereign state and because it was unclear
who held sovereignty over a mandated territory. Today the issue is
problematic, because political trusteeship may be contradictory to state
sovereignty, despite the latter’s flexibility and modifiable understand-
ing.
standing of international law aimed at the exclusion of “uncivilized” na-
tions from the definition of a sovereign state and because it was unclear
who held sovereignty over a mandated territory. Today the issue is
problematic, because political trusteeship may be contradictory to state
sovereignty, despite the latter’s flexibility and modifiable understand-
ing.
The UN Trusteeship System with Article 78 of the Charter explic-
itly states that no member of the United Nations can be put under trus-
teeship due to the principle of sovereign equality. In essence, such a
concept must be valid for other forms of political trusteeship as well. In
the context of failed states and particularly after an invasion and occu-
pation of states, like Iraq, however, the occupied state may be said to at
least partially lose sovereignty. Hence, the situation may be equivalent
to the “dormant” sovereignty of mandated territories that is revived at
the moment of independence or the ending of an occupation. To assess
the legality of trusteeship concepts in such a case one would have to
analyze the situation under which a state loses sovereignty as well as the
following establishment of political trusteeship. It seems questionable,
whether occupation that was initially not in accordance with the UN
Charter could be turned into legal trusteeship, since the legalization of
an unlawful loss of sovereignty by the concept of trusteeship might
pose a general threat to collective security and the principle of sovereign
equality that continues to be one of the foundations of the international
community. In contrast thereto one might understand political trustee-
ship, at least if it follows a certain set of criteria, as providing for a
(new) doctrine for international intervention into the affairs of sover-
eign states.114 In this case, however, the concept of an intervention that
aims at trusteeship to defend human rights or re-establish internal self-
determination by temporarily also denying external self-determination
and sovereignty must be fixed by clear criteria in the UN Charter to
counter unilateralism and allegations of neo-colonialism.
itly states that no member of the United Nations can be put under trus-
teeship due to the principle of sovereign equality. In essence, such a
concept must be valid for other forms of political trusteeship as well. In
the context of failed states and particularly after an invasion and occu-
pation of states, like Iraq, however, the occupied state may be said to at
least partially lose sovereignty. Hence, the situation may be equivalent
to the “dormant” sovereignty of mandated territories that is revived at
the moment of independence or the ending of an occupation. To assess
the legality of trusteeship concepts in such a case one would have to
analyze the situation under which a state loses sovereignty as well as the
following establishment of political trusteeship. It seems questionable,
whether occupation that was initially not in accordance with the UN
Charter could be turned into legal trusteeship, since the legalization of
an unlawful loss of sovereignty by the concept of trusteeship might
pose a general threat to collective security and the principle of sovereign
equality that continues to be one of the foundations of the international
community. In contrast thereto one might understand political trustee-
ship, at least if it follows a certain set of criteria, as providing for a
(new) doctrine for international intervention into the affairs of sover-
eign states.114 In this case, however, the concept of an intervention that
aims at trusteeship to defend human rights or re-establish internal self-
determination by temporarily also denying external self-determination
and sovereignty must be fixed by clear criteria in the UN Charter to
counter unilateralism and allegations of neo-colonialism.
In regard to the issue of self-determination at least the external com-
ponent is threatened, if foreign administration is imposed upon a peo-
ple. At the time of the League of Nations such a right was not yet ac-
knowledged but it may be seen as one of the Mandate System’s ultimate
goals to prepare a people to exercise such a right. Even the UN Trustee-
ship System did not seem to find a conflict between self-determination
and governance by an Administering Authority, since it appears that in
ponent is threatened, if foreign administration is imposed upon a peo-
ple. At the time of the League of Nations such a right was not yet ac-
knowledged but it may be seen as one of the Mandate System’s ultimate
goals to prepare a people to exercise such a right. Even the UN Trustee-
ship System did not seem to find a conflict between self-determination
and governance by an Administering Authority, since it appears that in
114 Perritt, see note 9, 471 et seq.
92 Max
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accordance with
Article 76 lit. b. of the Charter a right to self-
determination is
held in suspension until the Administering Authority
has created circumstances that allow for its exercise.115 In contrast
thereto, however, one might understand the right to self-determination
to be an obstacle to political trusteeship, at least if the relevant people
do not chose a political status that allows for assistance in a transitional
period.116
has created circumstances that allow for its exercise.115 In contrast
thereto, however, one might understand the right to self-determination
to be an obstacle to political trusteeship, at least if the relevant people
do not chose a political status that allows for assistance in a transitional
period.116
3. Perceptions of Foreign Authority and
Ressentiments
Another
important deficiency of the Mandate System that has some relevance even today, albeit on a slightly
different level is how the people
living in administered territories are, first, regarded with a view to their capabilities and, second, involved in a
state-building process as this is
vital for the acceptance and feasibility of foreign administration, i.e. the success of a state-building mission.
If political trusteeship is not to come into conflict with the right to
self-determination, the role of either the United Nations or a regional
organization or a state or group of states “mandated” with political
trusteeship is largely reduced to stabilize a territory in preparation of
free and fair elections that are supervised by the United Nations or an-
other international organization. The tensions arising in this context,
however, have already been mentioned above and include ressentiments
of the people against an electoral system and its performance imposed
upon them by a foreign authority. The time-factor is equally difficult. If
a territory is rushed to elections this might lead to chaos and a result
perceived as illegitimate. If, however, too much time goes by, the or-
ganization or state administering the territory looses credibility con-
cerning respect for self-determination and might be perceived as a neo-
colonial authority sparking resistance and violence.
self-determination, the role of either the United Nations or a regional
organization or a state or group of states “mandated” with political
trusteeship is largely reduced to stabilize a territory in preparation of
free and fair elections that are supervised by the United Nations or an-
other international organization. The tensions arising in this context,
however, have already been mentioned above and include ressentiments
of the people against an electoral system and its performance imposed
upon them by a foreign authority. The time-factor is equally difficult. If
a territory is rushed to elections this might lead to chaos and a result
perceived as illegitimate. If, however, too much time goes by, the or-
ganization or state administering the territory looses credibility con-
cerning respect for self-determination and might be perceived as a neo-
colonial authority sparking resistance and violence.
The perception of the administration by the Mandatories in the
mandated territories was in many cases that of a colonial rule. The lack
of equality of the Mandatories and the people in the mandated territo-
mandated territories was in many cases that of a colonial rule. The lack
of equality of the Mandatories and the people in the mandated territo-
115 Deiwert, see note 5, 802.
116 If the
people chose to transfer authority to a foreign or international insti-
tution, its exercise is not problematic. This was the case e.g. in Cambodia
where the UN Transitional Authority in Cambodia (UNTAC) was man-
dated with duties including foreign affairs, finance and defence. See also the
contribution by L. Keller in this Volume.
tution, its exercise is not problematic. This was the case e.g. in Cambodia
where the UN Transitional Authority in Cambodia (UNTAC) was man-
dated with duties including foreign affairs, finance and defence. See also the
contribution by L. Keller in this Volume.
Matz, Civilization and the Mandate System under
the League of Nations 93
ries that was
explicitly laid down in the Covenant is one reason for this
perception and should be an important enough reason not to directly
apply the Mandate System as a model for today’s situation. However,
some similarities that may be dangerous for stable state-building proc-
esses remain. Although a right to self-determination is universally ac-
knowledged as far as internal self-determination is concerned, we some-
times experience references to the ability of peoples to wisely use that
right. A distinction between the “knowing” (West) and the “unknow-
ing” reminds us of the overcome distinction between the civilized
(West) and the uncivilized in the context of the League of Nations.
perception and should be an important enough reason not to directly
apply the Mandate System as a model for today’s situation. However,
some similarities that may be dangerous for stable state-building proc-
esses remain. Although a right to self-determination is universally ac-
knowledged as far as internal self-determination is concerned, we some-
times experience references to the ability of peoples to wisely use that
right. A distinction between the “knowing” (West) and the “unknow-
ing” reminds us of the overcome distinction between the civilized
(West) and the uncivilized in the context of the League of Nations.
In particular the issue of democracy and democratization that does
not come from within but is imposed on a people by the administering
foreign power sometimes seems to rely on such a distinction. The dan-
ger that results from alleging that our understanding of democracy is
the primacy of the civilized peoples that has to be brought to those “not
yet able to stand for themselves” leads back to considerations rooting in
the era of colonialism. Such a proceeding will almost certainly lead to
ressentiments against foreign rule whether under UN supervision or not
and should therefore be avoided.
not come from within but is imposed on a people by the administering
foreign power sometimes seems to rely on such a distinction. The dan-
ger that results from alleging that our understanding of democracy is
the primacy of the civilized peoples that has to be brought to those “not
yet able to stand for themselves” leads back to considerations rooting in
the era of colonialism. Such a proceeding will almost certainly lead to
ressentiments against foreign rule whether under UN supervision or not
and should therefore be avoided.
Likewise, one of the main difficulties experienced with modern
state-building activities is a lack of clarity about the objectives and the
relationship between the authority and the governed people. If the only
objective pursued with foreign governance of non-self governing terri-
tories in our times is a process of creating stable structures for self-
government, any behavior that reflects self-interest of the administrat-
ing power has to be avoided by all means to avoid lack of credibility
and the corresponding creation of ressentiments.117 When, as a result,
models for future state-building must build upon clear and straight-
forward procedures for creating self-government that nevertheless re-
frain from necessarily imposing Western standards and from involving
self-interest of the administrating power, one must conclude that mod-
els must involve either the United Nations or regional organizations,
since unilateral administration will in most cases not be suitable to
achieve this - in any case particularly difficult - task.
state-building activities is a lack of clarity about the objectives and the
relationship between the authority and the governed people. If the only
objective pursued with foreign governance of non-self governing terri-
tories in our times is a process of creating stable structures for self-
government, any behavior that reflects self-interest of the administrat-
ing power has to be avoided by all means to avoid lack of credibility
and the corresponding creation of ressentiments.117 When, as a result,
models for future state-building must build upon clear and straight-
forward procedures for creating self-government that nevertheless re-
frain from necessarily imposing Western standards and from involving
self-interest of the administrating power, one must conclude that mod-
els must involve either the United Nations or regional organizations,
since unilateral administration will in most cases not be suitable to
achieve this - in any case particularly difficult - task.
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.”
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.”
94 Max
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Annex
Article 22 Covenant of the League of Nations
(1) To those colonies and
territories which as a consequence of the
late war have ceased to be under the sovereignty of the States which
formerly governed them and which are inhabited by peoples not yet
able to stand by themselves under the strenuous conditions of the mod-
ern world, there should be applied the principle that the well-being and
development of such peoples form a sacred trust of civilisation and that
securities for the performance of this trust should be embodied in this
Covenant.
late war have ceased to be under the sovereignty of the States which
formerly governed them and which are inhabited by peoples not yet
able to stand by themselves under the strenuous conditions of the mod-
ern world, there should be applied the principle that the well-being and
development of such peoples form a sacred trust of civilisation and that
securities for the performance of this trust should be embodied in this
Covenant.
(2) The best method of giving
practical effect to this principle is that the tutelage of such peoples should be entrusted to advanced nations who by reason of their resources, their
experience or their geographical
position can best undertake this responsibility, and who are willing to accept it, and that this tutelage
should be exercised by them as Mandatories on behalf of the League.
(3) The character of the mandate
must differ according to the stage
of the development of the people, the geographical situation of the ter-
ritory, its economic conditions and other similar circumstances.
of the development of the people, the geographical situation of the ter-
ritory, its economic conditions and other similar circumstances.
(4) Certain communities formerly
belonging to the Turkish Em-
pire have reached a stage of development where their existence as inde-
pendent nations can be provisionally recognized subject to the render-
ing of administrative advice and assistance by a Mandatory until such
time as they are able to stand alone. The wishes of these communities
must be a principal consideration in the selection of the Mandatory.
pire have reached a stage of development where their existence as inde-
pendent nations can be provisionally recognized subject to the render-
ing of administrative advice and assistance by a Mandatory until such
time as they are able to stand alone. The wishes of these communities
must be a principal consideration in the selection of the Mandatory.
(5) Other peoples, especially
those of Central Africa, are at such a
stage that the Mandatory must be responsible for the administration of
the territory under conditions which will guarantee freedom of con-
science and religion, subject only to the maintenance of public order
and morals, the prohibition of abuses such as the slave trade, the arms
traffic and the liquor traffic, and the prevention of the establishment of
fortifications or military and naval bases and of military training of the
natives for other than police purposes and the defence of territory, and
stage that the Mandatory must be responsible for the administration of
the territory under conditions which will guarantee freedom of con-
science and religion, subject only to the maintenance of public order
and morals, the prohibition of abuses such as the slave trade, the arms
traffic and the liquor traffic, and the prevention of the establishment of
fortifications or military and naval bases and of military training of the
natives for other than police purposes and the defence of territory, and
Matz, Civilization and the Mandate System under
the League of Nations 95
will also secure
equal opportunities for the trade and commerce of other Members of the League.
(6) There are territories, such as
South-West Africa and certain of
the South Pacific Islands, which, owing to the sparseness of their popu-
lation, or their small size, or their remoteness from the centres of civili-
sation, or their geographical contiguity to the territory of the Manda-
tory, and other circumstances, can be best administered under the laws
of the Mandatory as integral portions of its territory, subject to the
safeguards above mentioned in the interests of the indigenous popula-
tion.
the South Pacific Islands, which, owing to the sparseness of their popu-
lation, or their small size, or their remoteness from the centres of civili-
sation, or their geographical contiguity to the territory of the Manda-
tory, and other circumstances, can be best administered under the laws
of the Mandatory as integral portions of its territory, subject to the
safeguards above mentioned in the interests of the indigenous popula-
tion.
(7) In every case of mandate, the
Mandatory shall render to the
Council an annual report in reference to the territory committed to its
charge.
Council an annual report in reference to the territory committed to its
charge.
(8) The degree of authority,
control, or administration to be exer-
cised by the Mandatory shall, if not previously agreed upon by the
Members of the League, be explicitly defined in each case by the Coun-
cil.
cised by the Mandatory shall, if not previously agreed upon by the
Members of the League, be explicitly defined in each case by the Coun-
cil.
(9) A permanent Commission shall
be constituted to receive and examine
the annual reports of the Mandatories and to advise the Council on all matters relating to the observance
of the mandates.
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