Saving Failed States: Sometimes a Neocolonialist NotionAuthor(s): Ruth GordonSource: Proceedings of the Annual Meeting (American Society of International Law), Vol. 91,Implementation, Compliance and Effectiveness (APRIL 9-12, 1997), pp. 420-422Published by: American Society of International LawStable URL: http://www.jstor.org/stable/25659160 .

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420 ASIL Proceedings, 1997

inhibitions of down-trodden races."25 While the Bengali "race" was disparaged for its

"popular complexes, exclusiveness, suspicion and a sort of defensive aggressiveness," West Pakistanis were seen as "probably the greatest mixture of races found anywhere in the world."26

It was this "race-ed" construction of a "state-nation" that culminated in the 1971

genocide of Bengalis by the Pakistani military and the secession of Bangladesh. International law is implicated in this story at two levels. First, international legal concepts of "nationhood," "statehood," and "self-determination," necessitate construction of official "state-nations," which in many situations is a "race-ed" process. Second, international legal concepts of "sovereignty," "exclusive territorial jurisdiction" and "noninterference in internal affairs" shield from critique and intervention the brutality and oppression that accompanies the building of "state-nations."

To conclude, any comprehensive examination of modern international law must take account of the colonial encounter and the continuing relationship of empire. Modern international law grew in the temporal and spatial context of modernity and the modern

world system, both of which, in turn, are inherently connected with the colonial encounter. Foundational concepts and categories of modern international law were forged to facilitate relationships of empire, and following formal decolonization they helped constitute postcolonial states in forms that enable internal cultural domination and

brutality. To the extent that race is implicated both in the relationship of empire and in the construction of "state-nations" in postcolonial societies, critical race perspectives are not just relevant but indispensable to the study of modern international law.

Saving Failed States: Sometimes a Neocolonialist Notion

by Ruth Gordon*

A new concept has recently entered the international legal and political discourse: that of disintegrating, collapsed or failed nation-states. My focus has been Africa, where some governments appear to be having increasing difficulties performing basic

governmental functions. Whether these scenarios are due to civil war, already-weak states that are teetering without superpower support or interest, or simply the breakdown of artificial entities created in the wake of decolonization, the international community may confront the prospect of entities that can no longer provide for the health, safety and

welfare of their inhabitants. A largely discarded doctrine has been resurrected to address this problem: international trusteeship.1 It is a concept that should remain buried,

however, because trusteeship is a form of colonialism. And despite what its adherents

advocate, colonialism can never be truly benign. It is a system whose time has gone. I realize that there are enormous financial and political obstacles to the United

Nations' undertaking this course of action. I also realize that it is not being advocated by the United Nations or UN member states. Yet I am astonished that colonialism would be

suggested by anyone as a solution to any problem at the dawn of the twenty-first century.

25 Mohammad Ayub Khan, Friends not Masters 187 (1967). Mohammad Ayub Khan was the

praetorian dictator of Pakistan from 1958 to 1969. 26 Id Professor, Villanova University School of Law. 1 Gerald B. Helman & Steven R. Ratner, Saving Failed States, 89 Foreign Pol'y 3 (1992); Robert D.

Kaplan & William Pfaff, A New Colonialism, 74 foreign Aff. 2 (1995); Paul Johnson, Colonialism's Back?And

Not a Moment Too Soon, N.Y. times, Apr. 18, 1993, ? 6, at 22; Ali Mazrui, The Message of Rwanda: Recolonize

Africa?, New Persp. Q., Fall 1994, at 18.

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Saturday, April 12: Morning All

Thus, I have used this topic to think about issues of race and culture, examine how

international law justified and blessed colonialism, and examine such questions as what

makes a state a state, and a nation a nation. Critical theory has been very helpful because it has helped me question assumptions and presumptions, and to be aware that any view is only one view that is grounded in one particular reality. Critical Race Theory (CRT) also helps me to understand why trusteeship might be proposed for certain peoples and not others, and may also help the international community devise innovative paradigms to deal with a complex problem.

I want to begin by painting a different picture of the founding of the United Nations than we usually posit at our Annual Meetings, where we rightly celebrate this turning point in international cooperation. Yet, just as many in the United States no longer acknowledge or seem even to remember our history of apartheid, it seems to be largely overlooked that in 1945 many of the "We the Peoples" spoken of in the Preamble of the UN Charter were under the yoke of colonial domination. Of course, those holding colonies did not think in terms of "colonial domination." Rather, colonialism was

believed to be a necessary and indeed appropriate system that benefited both ruler and ruled. Colonial powers fully intended to retain their African colonies indefinitely at the close of the Second World War because the idea of independence seemed infeasible. The inhabitants of these colonies were deemed to be "not quite ready for civilization."

Thus, in Chapter 11 of the UN Charter, colonial powers voluntarily undertook, as a sacred trust, the obligation to promote the well-being of the inhabitants of "their" territories and to assist them in developing appropriate political institutions. Colonial

powers would continue to undertake the "white man's burden," and slowly lead their

charges to civilization?to the promised land, as defined by their colonizers. Other Charter principles, such as human rights and self-determination, were believed to be

capable of existing alongside colonialism. This idea of civilizing the natives, of assisting in their progressive development,

stemmed from the complex notions of racial and cultural inferiority and superiority that

undergird the entire colonial enterprise. Throughout the period of colonial conquest and

colonization, justifications for colonialism that were based on European racial superiority reinforced and buttressed the idea of European cultural superiority. The idea that

European civilization was superior was a given; that white people deserved to rule was not questioned. Moreover, Negroes were the lowest of human types and thus the most in need of civilizing by Europe.

International law articulated these ideas by denying sovereignty to certain peoples, who were included in the international legal system only to determine the extent to which

they could be dominated by Europeans. Europeans, however, did possess sovereignty and were thus full members of the international community, and it was from sovereignty that all rights flowed. Indeed, a central idea undergirding trusteeship was to eventually endow trust territories with sovereignty by leading them to self-government or independence. And, of course, it was their colonial benefactors who would show them the way to civilization. Many treatises and articles fully document these concepts both in international law and in the general cultural discourse.2

2 See, e.g., M.F. LlNDLEY, the acquisition AND government of BACKWARD TERRITORY IN

International Law vi (1926); John Westlake, Chapters on the Principles of International Law

(1894); William E. Hall, International Law 100 (J.B. Atlay ed., 5th ed. 1904); 1 L. Oppenheim, International Law: A Treatise 276 (1905); H. Duncan Hall, Mandates, Dependencies and Trusteeship Systems 277 (1955); see also Antony Anghie, "The Heart of My Home": Colonialism, Environmental Damage, and the Nauru Case, 34 harv. Int'l L.J. 445,499-504 (1993).

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422 ASIL Proceedings, 1997

Thus, the fundamental philosophy underpinning colonialism, mandates and trusts was that certain human beings, predominately black and brown peoples, were inferior to

Europeans and incapable of governing themselves. When colonialism is promoted today, are not the very same assumptions being made?: That some groups are entitled to rule

themselves, others to be ruled; some economic and social systems are superior, others inferior? That we, meaning the West, know what is best and how it should be done? And that we are there to teach (and rarely, if ever, to learn)? Is it not promoting what was at the heart of the trusteeship system: How to bring "backward peoples" to self

government? Are we not trying to civilize the nonwhite "other," that is, to assist "the natives" in adopting Western principles, ideas and institutions, which after all are

universal and are the norm? I believe that our views on how to approach and define state disintegration are

shaped by our beliefs regarding the inherent capabilities and incapabilities of certain

peoples. The racial dimension was explicit during the colonial period. I believe that we are shaped by our past, if not wedded to it, and thus these perceptions persist today despite our best efforts, although the locus of our biases is currently more difficult to

pinpoint. Racialism has officially been deemed illegal, and human rights norms include nondiscrimination on the basis of race. But note that the article originally advocating trusteeship as a solution cited the former Yugoslavia and the newly emerging states in the former Soviet Union, among others, as possibilities for trust status.3 Nonetheless the conversation quickly shifted to Africa and remained there. Critical race theory helps us

identify and explain the persistence of race as an ideology that shapes our perceptions of the "other." It also helps us understand how it shapes our institutions and laws.

I do not think we should abandon peoples who desire assistance, however. Rather, I

believe we should shift our focus. Instead of the top-down approach of trusteeship,

perhaps we should start at the bottom and try to begin to help people where they

originate. Critical race theory suggests a paradigm for legitimizing, listening to, and

hearing outsider voices as well as recognizing and questioning our own biases and

assumptions about "the other." This might mean that in devising structures, peoples should be their own designers, with the international community contributing from the sidelines if assistance is desired. Perhaps the West should proceed from the proposition that societies that have been living and surviving for countless generations might have some idea of how to improve their own space and lives. I am saying we should start with

that space. Our task should be to challenge?and perhaps modify?our assumptions, our biases

and the presumption that we know what is best for others, and that our ideas and means

of social organization are the only legitimate forms. Those ideas and systems that are

deemed different and roundly dismissed or ignored should be at the center of the

discussion on how to define and address the problem of disintegrating states. Diverse

cultures and ideas should be at the core of the search for answers, not relegated to the

status of afterthoughts. Perhaps the evolving discourse in regard to indigenous peoples

might serve as a guide. International law and institutions should be about the business of

devising structures and systems to accommodate and respect these differences.

3 Hejman & Ratner, supra note 1.

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