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The Juridical Expression of the Sacred Trust of Civilization

Published online by Cambridge University Press:  28 March 2017

Charles H. Alexandrowicz
Charles H. Alexandrowicz*
Affiliation:
École Pratique des Hautes Études, Sorbonne
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American Journal of International Law , Volume 65 , Issue 1 , January 1971 , pp. 149 - 159
Copyright
Copyright © American Society of International Law 1971 

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References

1 South West Africa Cases, Second Phase, [1966] I.C.J. Rep. 6; 61 A.J.I.L. 116 (1967).

2 South West Africa Cases, loc. cit. note 1 above, at 34.

3 Emphasis supplied.

4 Lord McNair in his separate opinion in the South West Africa Case of 1950 described mandates as valid in rem and thus permanent and capable of surviving the disappearance of the League of Nations. International Status of South West Africa, [1950] I.C.J. Rep. 128, at 156–157.

5 Ibid, at 478.

6 See, for instance, Wagner, H. R., The Life and Writings of Bartolomé de las Casas (1967)Google Scholar; Wright, , Mandates Under the League of Nations 2–23 (1930)Google Scholar.

7 Zanzibar acceded later to the Berlin Act of 1885. Turkey, being the suzerain of a number of African dependencies, participated throughout in the Conference. See 29 H. R. Exec. Docs. (1884–1885), No. 247 (48th Cong., 2nd Sess.), p. 179 (hereinafter cited as H. R. Exec. Doc.).

8 See particularly the writings of Dr. Herman Hesse: Schutzvertrage (1905), relating to South West African treaties of protection; and Rechtsgültigkeit der Konzessionen (1906), relating to the legal validity of concessions.

9 Alexandrowicz, , “The Afro–Asian World and the Law of Nations,” 123 Hague Academy, Recueil des Cours 117–124 (1968, I)Google Scholar.

10 H. R. Exec. Doc, op. cit. note 7 above, at 1–179.

11 John Adam Kasson (1822–1910) had become, on President Lincoln’s election, Assistant Postmaster General, in which position he was instrumental in convening the World Postal Congress in Paris in 1863. He was elected to Congress in 1862 but later entered the diplomatic profession. In 1877 he was appointed U. S. Minister to Vienna, and in 1884 to Berlin. See 10 Dictionary of American Biography 260–261 (1933).

12 The reason for U. S. participation in the Berlin Conference was, apart from its interest in freedom of trade in Africa, its intimate connection with the Republic of Liberia, established thanks to the initiative of American colonization societies which settled free American Negroes on the West Coast of Africa. This colony of settlers under U. S. protection achieved independent statehood in 1847. See Mr. Kasson’s reference to Liberia, in Exec. Doc, op. cit. note 7 above, at 14–18. In 1862 the United States concluded a treaty with Liberia. See 1 Malloy, , Treaties, Conventions, International Acts, Protocols and Agreements between the United States and Other Powers, 1776–1909, p. 1050 (1910)Google Scholar.

13 H. R. Exec. Doc, op. cit. note 7 above, at 7. Emphasis supplied.

14 Ibid, at 10.

15 Ibid, at 167.

16 In 1884 the International Association of the Congo issued a declaration relating to the acquisition of territories from “the legitimate sovereigns in the Basin of the Congo.” The U. S. Secretary of State recognized the flag of the Association in the same year. 1 Malloy, op. cit. note 12 above, at 327; 3 A.J.I.L. Supp. 5 (1909).

17 The British Ambassador at the Berlin Conference, Sir Edward Mallet, declared at its session on Nov. 15, 1884, that “the welfare of the natives is not to be neglected.” It must be remembered that they “are not represented at this Conference and that, nevertheless, the decisions of this body will be of the gravest importance to them.” H. R. Exec. Doc, op. cit. note 7 above, at 34.

18 Ibid, at 169.

19 Ibid. at 157.

20 1 Hertslet, The Map of Africa by Treaty 49, 103, 345 (3d ed., 1909). See, for instance, the Treaty of 1877 between Great Britain and King Samoo Bullom for the promotion of “commerce and civilization” and the Treaty of 1885 between Great Britain and the King of Malin which was “to promote to his subjects the advantages of civilization.” The Charter of the Imperial British East Africa Company of 1888 stated trade and good government and the advancement of civilization to be among the objectives of the Company. The General Act of the Conference of Berlin relates to trade and civilization. 2 Hertslet at 468.

21 3 Hertslet, cited above, at 780.

22 H. R. Exec. Doc, op. cit. note 7 above, at 83.

23 Emphasis supplied.

24 2 Hertslet, op. cit. note 20, at 484–485; see also 3 A.J.I.L. Supp. 24 (1909).

25 As to the views of certain writers to the contrary, see Hague Academy, Recueil des Cours, op. cit. note 9 above, at 194.

26 Ibid, at 193.

27 H. R. Exec. Doc, op. cit. note 7 above, at 177. Emphasis supplied.

28 E.g., Southern Rhodesia under King Lobengula, or Madagascar. Hague Academy, Recueil des Cours, op. cit. note 9 above, at 195.

29 2 Hertslet, op. cit. note 20 above, at 488. See also 3 AJ.I.L. Supp. 29 (1909).

30 Lindley, M. F., The Acquisition and Government of Backward Territories in International Law 333 (1926)Google Scholar.

31 Lindley, ibid, at 334.

32 The British Labor Party supported President Wilson’s policy. See Louis, W. R., “The South–West African Origins of the Sacred Trust 1914–19,” 66 African Affairs 20–39 (1967)CrossRefGoogle Scholar.

33 See Louis, cited above, at 35, and South West Africa Cases, 4 I.C.J. Pleadings, Oral Arguments, Documents 235 (1966). The Applicants in the South West Africa case introduced “the organized international community” theory in the proceedings. This meant that the enforcement of the sacred trust became the responsibility of the organized international community, a concept distinct from that of the League of Nations. 5 I.C.J. Pleadings, etc. 36–37 (1966). While it is true to say that the international community, i.e., the family of nations, is different from the League of Nations, it is not the former but the Conferences of Berlin (1885) and of Brussels (1890) which, prior to the mandate system, gave legal expression to the sacred trust of civilization. Through the Acts of these Conferences the contracting parties assumed the rô1e of guardians of African communities from which they had acquired territory on the basis of bilateral treaties. Ethiopia and Liberia became contracting parties to the Brussels Act and thus acquired a legal interest in the conduct of the guardianship, of which the mandate system was a further legal expression. Ethiopia and Liberia did not refer in their pleadings to the official guardianship proclaimed at the Berlin Conference or to the consequences of their accession to the Brussels Act. But this did not justify the categorical statement of the Court that the mandate system is the sole juridical expression of the sacred trust of civilization and that the latter has no “residual juridical content.”

34 Lindley, op. cit. note 30 above, at 335.

35 Bemis, S. F., Diplomatic History of the United States 576 (4th ed., 1955)Google Scholar, states that the principle of trust, as envisaged by the Berlin Conference of 1885, carries the “germ of the idea of international mandate.” Art. 6 of the Berlin Act states that “All the Powers exercising sovereign rights or influence in the aforesaid territories bind themselves to watch over the preservation of the native tribes, and to care for the improvement of the conditions of their moral and material well–being . . . .” The Brussels Act of 1890 refers to “assuring to that vast continent the benefits of peace and civilisation . . . .” The author of a League of Nations publication on the mandate system, which was referred to in the proceedings before the I.C.J., states that while the Brussels Act created legal obligations as to the slave trade and other matters, there are no legal obligations in the Berlin Act, a view not reconcilable with the term “bind” in the Berlin Act. See 4 I.C.J. Pleadings, etc., op. cit. note 33, at 233, citing League of Nations, The Mandates System; Origins—Principles—Application 9, 10 (League of Nations Pub. 1945, VI.A. 1.).

36 See 26 A.J.I.L. 91, note 6 (1932), and Starke, J. G., Introduction to International Law 164 (1967)Google Scholar.

37 Dugard, John, “The Revocation of the Mandate for South West Africa,” 62 A.J.I.L. 78–97 (1968)Google Scholar.

38 See, e.g., the remarks of the representatives of Ghana, Iraq, Ceylon, and the United Arab Republic, General Assembly, 21st Sess., 1419th Meeting, U.N. Doc. A/PV. 1419 (1966).

See also General Assembly Resolutions 2498 (XXIV), Oct. 31, 1969, 2517 and 2518 (XXIV), Dec. 1, 1969, General Assembly, 24th Sess., Official Records, Supp. No. 30, at 65 and 68, U.N. Doc. A/7630 (1970), in which the General Assembly, relying on earlier Security Council resolutions, condemned the Government of South Africa for its refusal to withdraw its administration from Namibia (South West Africa).

39 See Higgins, R., “The International Court and South West Africa: The Implications of the Judgment,” 42 International Affairs 573 (1966)CrossRefGoogle Scholar.