colonialism

What an honor to present my work in progress, “Intersectional Sovereignties: Dr. Aline Chalufour, Woman at Nuremberg – and at Paris, Ottawa, and Dalat” last week in “Global History and International Law”, a months-long seminar under way online.

Organizer of this superb scholarly offering is Dr. Anne-Sophie Schoepfel of the Institut d’études politiques de Paris, better known as SciencesPo. Her affiliation struck me as serendipitous, given that the subject of my paper was a graduate of SciencesPo. Born in 1899, Chalufour was also the 6th woman ever to earn a Ph.D. in international law from the University of Paris. In 1945-1946, she was the only woman lawyer on the French team that joined U.S., British, and Soviet allies in prosecuting vanquished Nazi leaders at Nuremberg.

Chalufour is one of the women on whom I’m focusing in my book-length study of women’s roles at that first Nuremberg trial, before the International Military Tribunal. But the richness of her experiences inspired this separate article.

Among the other highlights in Chalufour’s 90-year life: practice before the Paris Bar; activism in national and international feminist groups; teaching at colonial schools in what’s now Vietnam; serving de Gaulle’s Fighting French as a propagandist in Canada; gathering evidence about war crimes from liberated ex-detainees; taking part as the only French prosecutor in Britain’s first trial on Ravensbrück, a Nazi concentration camp for women; and, starting a few years after Nuremberg, service as a national judge.

My paper considers these episodes in light of of 3 theorizations: 1st, the shared sovereignty of the post-World War periods; 2d, sovereignty dynamics in colonial and imperial sites; and 3d, sovereignties of the person, imagined and corporeal. The paper then examines interrelations among these 3.

Serving as my discussant at last Wednesday’s session was Dr. George Giannakopoulos of King’s College London and NYU London. Numerous other participants offered valuable comments.

This was the 5th session in the seminar, which is slated to run through June 24 and has attracted law and history scholars from Asia and Latin America as well as Europe and North America. Next up, at 3 pm EDT this Wednesday, May 20, are 2 papers within the umbrella theme “Imperial Origins of the World Order”; details here.

What’s more, in due course Dr. Schoepfel and her SciencesPo colleagues are posting edited podcasts of each session. (Update: My own presentation is available at the seminar website and on YouTube.)

Already available at the seminar’s website and its YouTube channel:

  • “Epistemic Communities in Exile: Coining ‘Crimes against Humanity’ at London, 1940-45” by Dr. Kerstin von Lingen of the University of Vienna, Austria and author of a new journal article on this subject, as well as ‘Crimes against Humanity’. Eine Ideengeschichte der Zivilisierung von Kriegsgewalt 1864-1945 (Paderborn 2018), a monograph soon to be available in English. Discussants were Dr. Barak Kushner of the University of Cambridge, England, and Dr. Sabina Ferhadbegović of Imre Kertész Kolleg Jena, Germany.
  • “Genocide in Historical Perspective. The Language of Trangression” by Dr. Dirk Moses, of the University of Sydney, Australia, and author of The Problems of Genocide. Permanent Security and the Language of Transgression (forthcoming Cambridge University Press). Discussant was Dr. Charles Maier of Harvard University.
  • “The Nuremberg Moment. International Trial, American Lawyers and the Racial Question” by Dr. Guillaume Mouralis of Centre Marc Bloch in Berlin, and author of Le Moment Nuremberg. Le procès international, les lawyers et la question raciale (Presses de Sciences Po 2019). Discussant was Dr. Elizabeth Borgwardt of Washington University in St. Louis.

The full list of seminar participants is here; full schedule and registration information, here.

The new print edition of the American Journal of International Law includes my essay on last February’s International Court of Justice decision respecting the Chagos islands. This post describes that publication and takes note of developments since it went to press.

My essay, “International Decisions: Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965,” 113 AJIL 784 (2019), may be accessed at this SSRN link or at the AJIL website.

The essay outlines the ICJ advisory opinion, which is available here. It explains that the Chagos Archipelago, a group of islands located in the Indian Ocean, was considered part of Mauritius when both formed a British colony. But after Mauritius won independence in the mid-1960s, the United Kingdom kept the archipelago, naming it the British Indian Ocean Territory, then forcibly removed its inhabitants and leased it for a US military base, CNIC Naval Support Facility Diego Garcia, that is still there today. The legality and effects of these actions lay at the heart of the ICJ’s advisory proceedings, instituted following a request by the United Nations General Assembly.

The abstract elaborates:

“Decolonization and its quite valid discontents lay at the center of the recent International Court of Justice advisory opinion regarding the territory and populations of the Chagos Archipelago, located in the Indian Ocean. Answering questions posed by the UN General Assembly, the concluded that because these islands were detached from Mauritius as a condition of independence, the decolonization of Mauritius had not been completed in accordance with international law. The Court further ruled unlawful the United Kingdom’s continued administration of the Chagos Archipelago and called upon all UN member states to aid completion of the decolonization process. As detailed in this essay, the advisory opinion contained significant pronouncements on decolonization, on the right of all peoples to self-determination, and on the formation of customary rules respecting both.”

Notably, all on the ICJ bench agreed with the result except for the U.S. judge, Joan E. Donoghue, who maintained that the court ought not to have exercised its discretion to consider the issue on the merits.

Since 2017, for the 1st time in the court’s history, there has been no ICJ judge from the United Kingdom. As my essay indicates, UK officials spoke out against the court’s advisory opinion, framing it as a bilateral dispute over sovereignty, and stating that Britain would not “cede sovereignty to Mauritius” until Britain determined the archipelago “is no longer required for defence purposes.”

After the essay went to press, the United Kingdom reiterated that position in a 30 September 2019 letter to UN Secretary-General António Guterres, requesting that it be circulated to the General Assembly.

Two weeks earlier, Pope Francis had weighed in, on behalf of the Chagossians. In his words:

“Not all things that are right for humanity are right for our pocket, but international institutions must be obeyed.”

Maintaining the current British policy is the Tory government led by Prime Minister Boris Johnson. Its policy stands in contrast with that of Labour, the Tories’ principal rival; as the Guardian reported on Friday:

“Jeremy Corbyn has pledged to renounce British sovereignty of the remote Chagos Islands and respect a UN vote calling for the archipelago to be handed back to Mauritius.”

In short, the immediate fate of the islands may depend – not unlike Brexit – on the Britain’s next general election, set for 12 December.

shipsAMSTERDAM – Newly reopened following a 10-year renovation, the Rijksmuseum now tells tales of globalization. It is thus far different and more provocative than the art-house of old.

A gallery named “The Netherlands Overseas” confronts visitors with the reach of the Dutch, who established the multinational Dutch East India Co. in 1602 and ranged widely for centuries thereafter. Adorning the gallery’s walls are portraits of Dutch ambassadors. One rides horses with a pasha in Persia. Another poses in Jakarta with his half-Japanese wife. In showcases below, an array of artifacts – the blue and white porcelain renowned in China and Delft alike, woolen caps worn by Dutch whalers, silverware that once held coffee, tobacco, spices, and spirits.

Throughout the museum Java and Molucca, India and Australia, Suriname and Brazil, North and West Africa, even Norway and Sweden, are invoked. Colonization is evident, not the least in the depictions of servants, some named, some not, beside the Lowlands envoys. Also present is international law, with major treaties marked by medals and epic paintings. Marked by the rijks_camp2013roomful of model ships above, moreover, is the warfare once conducted in the name of commerce and colonialism.

It is in the 20th C. gallery atop the museum that visitors encounter another sobering aspect of world events. The striped jacket at right once was worn by Isabel Wachenheimer, a 16-year-old German whose Jewish family had sought refuge in Rotterdam from the Nazis. After the Netherlands was occupied, all  were deported to Auschwitz, where her parents perished. She would be liberated at Mauthausen, a concentration camp in Austria where a fifth of the inmates were teenagers. Isabel, who became a U.S. citizen in the ’60s, kept her Mauthausen jacket. It’s described in museumspeak as “Germany, after 1938. Rags printed with blue ink, plastic.”

Did regime-change overreach in Libya seal the awful fate that civilians have endured these last years in Syria? A new article in a Beijing-based law journal, China Legal Science, strongly argues “Yes.”

liAmong the 5 permanent members of the U.N. Security Council are 3 from the West – Britain, France, and the United States – plus China and Russia. The latter 2 countries have incurred much criticism for blocking Council action on Syria. ‘Way back in October 2011, for example, the United States’ Permanent Representative to the United Nations, Susan E. Rice, “storm[ed] out” after the latter 2 P-5 countries refused to join what she called “a watered-down resolution” against Syria. Criticism has tended to center around Russia’s commercial and geopolitical relationships with Syria. But the new article, “Responsibility to Protect: A Challenge to Chinese Traditional Diplomacy” (no. 1-2013, pp. 97-120), indicates that other concerns also have been at play. Asserts Dr. Zhu Wenqi, Professor of International Law at Renmin University (formerly a diplomat in China’s Ministry of Foreign Affairs and an attorney in the Office of the Prosecutor at the International Criminal Tribunal for the Former Yugoslavia, and holder of a doctorate from the University of Paris II):

‘The Council’s failure to take action in the Syrian case is because of reflections by China and Russia upon what happened after the resolutions adopted by the Security Council in the case of Libya.’

Zhu cites Resolution 1970 (Feb. 26, 2011), which imposed certain sanctions against Libya and referred the situation to the International Criminal Court, and Resolution 1973 (Mar. 17, 2011), which authorized member states “to take all necessary measures … to protect civilians.” China voted in favor of 1970 and abstained from voting on 1973. In positing “the Libyan authorities’ responsibility to protect” its people, each resolution invoked the responsibility to protect doctrine. With admirable clarity and conciseness, Zhu recounts the 15-year history of that doctrine, by which:

► 1st, each state has a duty to protect its own population; and

► 2d, should a state fail in its duty, the international community has the responsibility to step in and protect the threatened population.

What happened right after adoption of Resolution 1973? NATO mounted a many-month military operation, which ended only after Libya’s longtime ruler, Muammar Gaddafi, was deposed, put on the run, and ultimately killed. The Security Council had not made regime change an explicit aim in either Resolution 1970 or Resolution 1973; a month into the intervention, however, an op-ed by the leaders of the Western P-5 members insisted that Gaddafi “must go, and go for good.” Zhu writes that this ouster effort led China to criticize the resolutions as “pretextual” and as costly in the numbers of civilians harmed.

The Libya lesson has prompted China to resist calls for intervention in Syria, Zhu states. (credit for AP photo above, captioned “Chinese Ambassador to the UN Li Baodong sitting with his hands down as Security Council members vote on resolution to back an Arab League call for Syria’s Assad to step down, Feb. 4, 2012”) What’s more, it has led China to revert to skepticism toward the doctrine of responsibility to protect. In an account that echoes writings of Judge Xue Hanqin on which I recently posted, Zhu sets out not only the value that China places on the sovereignty guarantees in Article 2(4), (7) of the U.N. Charter, but also the relation of that value to the desire to maintain independence from “‘the remnants of imperialist and colonialist oppression'” (quoting the late Wang Tieya). Quoting from this article, Zhu writes that China’s opposition to regime change in Syria is seen as reinforcing the Charter:

‘In the eyes of many Chinese evaluators, China’s attitude toward the Syrian issue actually demonstrated that China “is assuming more responsibilities and obligations” in international affairs.’

Amid this week’s reports that the United States may be backing off from demands for the resignation of Syria’s President, Bashar al-Assad, the article is timely – and its explication of the Chinese legal perspective on global security has value any time.

Sovereignty is dear to the People’s Republic of China. We international lawyers all know that. But we may have only a vague sense of why; that is, why Chinese jurists hold close to the concept of sovereignty. Nor are we likely to know what China thinks about other aspects op170f international law. I’ve just come across a few essays which provide some answers.

Each was published in the Chinese Journal of International Law by Dr. Xue Hanqin (right), on whose American Society of International Law intervention (video now available here) I recently posted. Xue wrote the articles while she was China’s ambassador to the Netherlands and, in 2 cases, a member of the International Law Commission. Today, she’s a judge on the International Court of Justice. Her status makes her take on China and international law well worth a read.

In “China’s Open Policy and International Law” (2005), and again in “Chinese Observations on International Law” (2007), Xue posited as the structural foundation  the Five Principles of Peaceful Coexistence, agreed upon in 1954 by Burma/Myanmar, China, India, and Indonesia. As she described them, the 5 are:

  1. “mutual respect of sovereignty and territorial integrity”;
  2. “mutual non-aggression”;
  3. “non-intervention in international affairs”;
  4. “equality and mutual benefit”; and
  5. “peaceful-coexistence.”

Xue wrote that China values sovereignty from the perspective of its history – a history marked by decades of invasion and occupation, which came to an end only in the mid-20th C. “I must say frankly,” she wrote in 2005:

‘[T]he first introduction of international law into China from the western world in the late 19th century left the Chinese people with little fond memories, as it was done through cannons and warships.’

cjil(Regarding this history, she referred to the 1990 Hague Academy lectures by the Professor Wang Tieya.) In her 2007 article, Xue situated China within the “viewpoint of the developing countries,” that “international law is based on a foreign legacy.” By this view, the U.N. Charter won acceptance because it enshrined “certain values” that postcolonial states “had been fighting for: sovereignty, equality, democracy, and self-determination.” She argued that the international legal system depends on “diversity of autonomous political communities,” and would falter if all members were forced to adhere to “one single social model.” She expressed concern lest the concept of responsibility to protect become a vehicle for usurping “multilateral mechanisms” for determining whether states may intervene against another. And even as she repeated China’s statements in support of “a just, impartial and effective” International Criminal Court, Xue argued, in the name of sovereignty, against ICC exercise of its Article 12(2) nonconsensual jurisdiction. (My own exploration of that provision is here.)

The 2 essays, along with “International Treaties in the Chinese Domestic Legal System” (2009), which Xue coauthored with Jin Qian, demonstrate the extent to which China has embraced such cooperation. (No doubt this theme is further developed in Xue’s own Hague Academy lecture, published here in 2012.) The country has entered more than 300 multilateral treaties, the vast majority since 1979.  And through a complex process that is neither entirely monist nor entirely dualist, it has implemented treaty obligations domestically – with respect to its World Trade Organization accession alone, China altered nearly 3,000 domestic laws and regulations.

China’s human rights record is, of course, an easy target for outside criticism. Yet Xue’s articles indicate that the framework for compliance is there: China has ratified thematic human rights treaties, such as the Convention on the Rights of the Child and the Convention on the Elimination of All Forms of Discrimination Against Women, as well as comprehensive treaties like the International Covenant on Economic, Social, and Cultural Rights – none of which the United States has ratified. (The countries switched sides on the International Covenant on Civil and Political Rights, with the United States a party and China a nonparty.) Xue further emphasized a 2005 amendment to China’s Constitution, by which Article 33 now provides:

‘The state respects and guarantees human rights.’

Xue acknowledged the growing participation of nongovernmental organizations and other nonstate actors. Indeed, she pointed out that she herself once introduced delegates at a U.N. conference on desertification “our peasants,” whom she’d brought as “grass-roots representatives” of the problem. Yet Xue questioned whether their presence had “changed the basis of decision-making”; in her view, “national interests remain a determining factor for international cooperation.”

China_revisedforState_480_1On these and other critical topics – law in the South China Sea, for instance, or climate change –  reading these 3 essays will help the Westerner contemplate the international legal system from the standpoint of the world’s most populous state.

lemondeThe news out of Paris is all about Mali, as evidenced by this screenshot from LeMonde. That’s because last week France sent troops to fight rebels who’ve held the north for months. It did so on request of the government that still holds power in the southern region where Mali’s capital, Bamako, is located. (The BBC reported that other countries, in the West and in Africa, are lending support to the French efforts, while a New York Times article contended that U.S. missteps helped fuel the crisis.)

Groups holding the north are said to include AQIM, Al-Qaeda in the Islamic Maghreb. Unrest began last April, and drew global attention because of last summer’s destruction of a UNESCO World Heritage site – adobe Timbuktu tombs held sacred by some Muslims but loathed by persons who’d seized the city. In October, a U.N. official alleged that rebels were “buying child soldiers,” among many other human rights offenses.

President François Hollande said (my translation) of last week’s decision:

‘France will respond … strictly within the boundaries of U.N. Security Council resolutions, on request of Malian authorities fighting armed Islamist groups.’

France once was the colonizer of much of West Africa – Mali won independence in 1960 – and LeMonde reports that although there’s evidence of approval in Bamako, an array of Algerian publications have decried what some characterized as a return to a kind of colonialism. These differences of opinion invite further inquiry.

bamakoA great starting place is Bamako, a 2006 film that portrays 2 trials unfolding within the walls of a neighborhood compound. (IntLawGrrl Karen E. Bravo’s review here.) One is a figurative trial – that of a husband, wife, and daughter pulled in different directions by the challenges and lures of modernization. The stops-and-starts of modernization also crop up in the compound: one night, many cluster around the lone TV to watch a Western shoot-’em-up (starring the American actor Danny Glover, a producer of Bamako) titled Death in Timbuktu. The other trial is literal – an outdoor proceeding in which ermine-clad judges hear individual witnesses give evidence in support of an anti-globalization complaint that a partie civile described as “African civil society” has lodged against the World Bank, the International Monetary Fund, and unnamed other international institutions. Immediately at issue is closure of stops on a once-public railroad, occasioned by the railway’s forced privatization – closure that is said to have deprived many Malians of jobs and transport, and to have sent many on a peril-fraught emigration toward hoped-for work on the other side of the Mediterranean. These trials add layers to understanding of today’s news.