Donovan Jurisdictional Relationships Between Nations and Their Former Colonies

• Jurisdiction: United States,Federal
• Publication year: 2002
• Citation: Vol. 6 No. 1

Gonzaga Journal of International Law

Gonzaga University 721 N. Cincinnati St. Spokane, WA 99202 Phone 800 986 9585

Cite as: Thomas W. Donovan, Jurisdictional Relationships between Nations and Their Former Colonies, 6 Gonz. J. Int'l L. (2002-03), available at http://www.across-borders.com.

Jurisdictional Relationships Between Nations and Their Former Colonies

By

Thomas W. Donovan[1]

Introduction

Colonialism has greatly influenced international law and inter-governmental relations over the past two hundred years, during the time when many developing nations have experienced the rise and decline of colonialism. Considerable research and historical analysis has sought to explain why many nations espoused, justified, and defended their rule over less-developed nations, but there has been much less successful evaluation of the contemporary after-effects. This is especially true in jurisdictional analysis, and, as a result, there remain many unanswered questions and unresolved controversies about the jurisdictional relationship between former colonial powers and their former possessions.

This paper addresses one overriding question. What jurisdictional ties remain between former colonial powers and former possessions, and what contemporary conditions influence the continuation of those ties? The question has become particularly relevant in recent years, when some nations have attempted to reassert aspects of jurisdictional authority over their former colonies, either on an ad hoc basis or as a matter of continuing socio-cultural, economic, and legal hegemony. We have seen in the past five years dozens of examples, including the highly publicized efforts of Spain to bring to trial Chile's former dictator, General Augusto Pinochet, the trials in Belgium of leaders of the Rwandan genocide, and the campaign in The Netherlands to bring to trial the Suriname military strongman Desire; Bourtese.

But the outcomes of the resulting postcolonial extra-territorial jurisdiction disputes remain uncertain. The traditional notion of territorial-based jurisdiction has been replaced by a jurisdictional array of domestic courts, foreign colonial courts, and international tribunals. The degree to which these courts have succeeded in achieving their goals is influenced by the type of continued relationships that has remained between the former colony and former ruler. The colonial ruler seems more likely to assert jurisdictional authority over the former colony when there is a continuance of immigration trends, economic ties, and exploitation of natural resources, and when there is evidence of human rights abuses and genocide. In the absence of satisfactory mechanisms to address these problems in the former colony, an emerging system of colonial review presents a new mode of global adjudication.

In the following sections, this paper will explore the conditions which influence jurisdictional authority issues between former colonies and their rulers. The next section addresses the development and prevalence of colonialism and the ruling nation's justifications for it. Section III discusses post-colonial relationships from the perspective of relevant international relations theory. Section IV discusses how the major colonial countries are now confronting their own historical complicity by universal jurisdiction legal actions.

I. The Evolution of Colonial Systems

Colonialism originated in the late Eighteenth Century as the preferred system for the exploitation of lesser developed regions.[2] By 1914, European nations dominated almost 85 percent of the world in some form of colony, protectorate, or dominion.[3] As colonialism developed it became an established governing process by which governments, especially economically developed ones in Europe, systematically controlled and exploited lesser-developed areas. Edward Said defined imperialism in Culture and Imperialism as "the practice, the theory, and the attitudes of a dominating metropolitan center ruling a distant territory; "colonialism[]" . . . is the implanting of settlements on distant territory."[4]

A. Justifications and Legitimization for Colonialism

Colonialist nations believed they had good reasons to promote and develop this system. There were profits to be made in forced trade and natural resource exploitation.[5] Their military and geo-political influence was increased.[6] Their prestige, especially vis-a-vis other European powers, was enhanced,[7] and finally, there was racism.[8] The ruling nation held itself and its people to be inherently superior, its task, therefore, was to help the people of the colony toward civilization,[9] and it was undertaken in the cause of religion and enlightenment.[10] The conventional tenet of white colonizers held that there was an obligation[11] to "rule subordinate, inferior, and less advanced peoples."[12] It was commonly referred to as the "white man's burden."

Because Europeans viewed their cultures, government, administrative and educational systems as superior, they deemed it worthwhile to transplant these institutions to their colonies and to supplant whatever institutions had existed in the pre-colonial region[13] This was especially true in Africa. Even though European colonialism had only seventy years in Africa, because of the organization and strength of many of these supplanted governmental institutions, "[colonialism] had a profound impact on indigenous African cultures and institutions."[14]

The colonial powers, and the international organizations which they founded and maintained, further sanctioned this system. The League of Nations endorsed colonialism through what was called a "Mandate" system of governance.[15] The idea of a mandate can be viewed as "the institutional manifestation of. . . .protection by a colonizing power and that their interests and lands should be looked after in trust by that power."[16] The League of Nations Covenant Article 22 states "the well being and development" of the peoples subject to mandate formed a "sacred trust for civilization."[17]

A later form of colonialism was the "Trusteeship," which stemmed from Article 75 of the United Nations Charter.[18] The U.N. Charter provided a much more precise set of obligations than were contained in the earlier mandate system. Article 76(b) describes one of the basic objectives as the promotion of the "political, economic, social, and educational advancement of the inhabitants."[19] Trusteeships were supervised by the General Assembly which generally gave colonial governments a very wide range of options through vague language and directives. Nevertheless, by the end of World War II, the wave of nationalist sentiment in most colonies was inexorable.

B. Dissolution of Colonialism and Consequential Intervention

The pressure on colonial powers to relinquish their holds on their colonies was accompanied by a gradual shift away from the beliefs that sought to legitimize colonial rule. Direct colonial control was no longer possible. As Nkrumah stated "[n]o Imperial power has ever granted independence to a colony unless the forces were such that no other course was possible, and there are for many instances where independence was only achieved by a war of liberation."[20]

Nationalism in the colonies was asserted in the localities, but finally espoused by the United Nations with the 1960 Declaration on the Granting of Independence to Colonial Countries and Peoples.[21] The Declaration stressed that "all peoples have the right to self-determination."[22] By the 1970s, most colonies had achieved political independence. Most of the colonial powers had gradually, or sometimes abruptly, abandoned their colonies in favor of home rule, even though many of the new nations were not yet politically, economically or socially viable.

The former colonial power no longer had to justify its rule on the basis of racial or cultural inferiority; it claimed a laissez-faire approach to its former subject. The dominant nation's public stance tended to be apologetic.[23] It usually maintained its stated objective of seeking to help the former colony to progress developmentally.[24] However, when the former colony seems incapable of assuming basic government functions or caring for its people, the former ruler considered itself compelled to consider some forms of intervention.

After independence, many former colonies found it increasingly difficult to perform basic governmental functions and deliver essential services to their populations; resulting in severe societal problems.[25] These states are deemed "failed" or "failing", and according to Robert Oakley, former Ambassador at large for the United States, even "Twice-Failed" when a state repeatedly does not succeed in asserting its sovereignty and basic services for citizens.[26] Certain scholars have asserted a return to the League of Nations sponsored Trusteeship or models of governance, whereby a single former colonial country is responsible for ensuring basic services.[27] Others have asserted different levels of intervention in the failing state where there is "simply is no alternative in nations where governments have crumbled and the most basic conditions for civilized life have disappeared."[28]

William Pfaff, in his article, A New Colonialism? Europe Must Go Back into Africa, asserts that it should be the responsibility of the former...