Introduction
During the two decades following the Second World War, decolonization slowly transformed the international order from a world of empires to one with postcolonial independent nation-states. The United Nations stood at the centre of this change, as Lydia Walker delineates, both as the international organization with a bureaucracy and as the postwar international order.Footnote 1 Its founding documents such as the Atlantic Charter and the United Nations Declaration had inspired a wave of decolonization claimants, echoing their Wilsonian precursors following the Great War.Footnote 2 The UN provided political legitimacy to postcolonial states through membership in the organization while promising sovereignty and territorial integrity to all its members. This model assumed imperial powers would relinquish control over discrete colonial territories after granting independence through the process of developing self-government or international trusteeship.Footnote 3 While political organs of the UN worked to manage deviations and engaged in projects of nation-building, not all cases of decolonization fitted cleanly into this framework.Footnote 4 Once decolonization claimants exhausted the political process in the bureaucracy, they turned to the final venue of recourse in the UN order — the International Court of Justice.
Between 1955 and 1966, during the highpoint of decolonization and fall of empires, the ICJ heard a series of cases in which those discontented with how decolonization unfolded sought to use international law to negotiate and (re-)contest the edges of postcolonial realities. These cases included whether an imperial power had the right to pass through the territory of a postcolonial state to exercise its sovereignty over colonial exclaves, whether an imperial power must turn over administration of a trust territory to a historically related postcolonial state, whether imperial cartography had binding legal ramifications for postcolonial borders, and whether a League of Nations mandate administrator had to maintain its obligations per the mandate agreement and submit to international accountability.Footnote 5
While many scholars have written on how UN organs served as venues for anticolonial activism, they have not given as much attention on considering whether the International Court of Justice has served as such a venue.Footnote 6 The Court faced the duty of adjudicating the cracks and gaps in the fledgling UN order and ascertaining whether international law permitted the judges to consider a postcolonial order beyond neatly drawn boundaries and absolute understandings of sovereignty. In doing so, the Court marked the boundaries of international law and created precedence to delineate between legitimate and illegitimate forms of decolonization.
This article looks at how international law dealt with these four unresolved disputes arising out of decolonization through the jurisprudence of Vi Kyuin Wellington Koo.Footnote 7 His background as a former politician, diplomat, and statesman distinguished him from his colleagues, who were primarily civil servants, legal scholars, and career litigators. Two other such exceptions are his colleagues on the bench, Sir Muhammad Zafarullah Khan of Pakistan and Sir Percy Spender of Australia.Footnote 8 Prior to his appointment to The Hague, Koo spent over forty years in the Chinese foreign service which included serving as China’s representative to the Paris Peace Conference in 1919 and the San Francisco Conference in 1945.Footnote 9 When Koo recounted, in his South West Africa dissent or Northern Cameroons separate opinion, the historical origins of the League’s mandates system and the UN’s trusteeship system, he told a history in which he had played an active part.Footnote 10
This article sees the International Court of Justice as a space for ongoing decolonization contestations. States and their agents who were discontent with how decolonization unfolded—or had yet to properly unfold—sought to resolve and publicize their disputes at The Hague. Unlike the General Assembly, the Court was neither the first nor foremost destination to advocate for decolonization.Footnote 11 The Court served as the venue of last resort within the UN system. While legal concerns were paramount, these challenges reveal the limits of the international system in accommodating alternative visions for decolonization. As such, this article discusses “edge cases” of decolonization that reached the Court after the exhaustion of other means. I use “edge cases” both in the legal sense—cases where the “applicability and correctness of precedent are not obvious” and the technological metaphor—cases that are outliers on the boundaries of a system.Footnote 12 In other words, these cases do not fit neatly with how the UN envisaged decolonization would manifest into discrete nation-states.Footnote 13 The story follows the perspective of a judge who was himself often discontented, specifically with the Court — he often found himself writing either separate or dissenting opinions — but also with decolonization at large. Since these “edge cases” represent the extremes and not generalizable situations, they do not reveal whether the Court was “colonial” or “anticolonial.” Yet, what they do show, is how the Court during this decade had an aversion to potential exceptions and refrained from ruling in a way that would disrupt the dominant mode of political decolonization. On the other hand, looking back at how Koo approached these “edge cases” shows how actors viewed the possibilities of decolonizing international law, as well as the uneven legacy that the Court left for the international system.
Judge Wellington Koo
Koo’s background and career exhibit a specifically liberal internationalist vision of anticolonialism. While becoming a judge was a late career shift, he brought a wealth of experience to the Court, rooted in his own experiences of imperial inequality. Originally trained as a scholar of international law at Columbia University, his doctoral dissertation discussed the legal ramifications of the “unequal treaties” imposed on Imperial China, which granted extraterritorial rights to westerners, and how they relegated non-westerners in the international order.Footnote 14 As a delegate to the Paris Peace Conference, he tried to raise China out of this semicolonial status and hoped that the League would respect the universality of international law. He famously chose, along with the rest of the Chinese delegation, not to sign the Treaty of Versailles to protest that western powers had given Japan control of the former German concession of Shandong in northeastern China.Footnote 15 As Chinese ambassador to the League, he witnessed the failure of collective security in Geneva, as his calls for the League to intervene and stop Japanese aggression in Manchuria and then in “China Proper” fell on deaf ears.Footnote 16 Undeterred, Koo tried again at Dumbarton Oaks and in San Francisco at the founding of the UN. With China now designated a major power, he insisted, against British objections, that the UN, unlike the League, commit to independence for trust territories.Footnote 17 Crucial to this story, he also insisted (unsuccessfully) that the ICJ have compulsory jurisdiction over all interstate disputes, and encouraged the codification of international law. After affixing the first signature on the UN Charter, Koo continued to participate in UN debates as ambassador to the United States, representing the Nationalist government which had retreated to Taiwan in 1949 after its defeat to the Communists in the Chinese Civil War.
Perhaps it seems obvious that an international jurist would have institutionalist tendencies, but remarkably, even as international institutions consistently failed Koo and his country, he kept returning to them. As a drafter of the UN Charter, he insisted that the document explicitly commit to “the principles of justice and international law.”Footnote 18 To him, the League had failed China in the 1930s due to a lack of genuine commitment to international law and justice. Now in the postwar period, Koo believed that international institutions could provide a way out of imperial domination, but he also, fitting for a judge, thought that it was important to do so based on set legal principles. Understanding this ties together the clear anticolonial tone in Koo’s dissents in South West Africa and Temple of Preah Vihear with his separate concurrences, nominally in favour of imperial powers, in Right of Passage over Indian Territory and Northern Cameroons.
In May 1956, after over four decades in the Chinese foreign service, Koo decided that his second stint in Washington would be his last posting. As fate would have it, however, the sitting Chinese judge on the International Court of Justice, Hsu Mo, passed away that summer, leaving a vacancy on the bench. The election of a judge to the ICJ required a double majority at the UN — a majority in the General Assembly as well as in the Security Council.Footnote 19 Although nations were free to nominate and vote for anyone whom they deem qualified, the major powers had a “gentleman’s agreement” that permanent members of the Security Council would each have a judge. Taipei chose Koo as Hsu’s successor. In private correspondence, Koo claimed that he had had no intentions to suspend his retirement, but that he gave into the pleadings of his government.Footnote 20 The Chinese mission sought to ensure that Koo received the support not only of the major powers, but also from non-western states to shore up some legitimacy for the Nationalists. Maintaining China’s seat also would mean that Asia kept its two seats out of the fifteen on the bench. While Koo left campaigning to China’s UN mission, he enjoyed support from his former colleagues from top American diplomats to the Prime Minister of Iran.Footnote 21
In San Francisco, the framers of the postwar international order believed that diverse representation mattered for the world judiciary. The Statute of the ICJ, often appended after the Charter of the UN in print copies, states that member states should consider “the representation of the main forms of civilization and of the principal legal systems of the world” when electing judges to the Court.Footnote 22 The other Asian judges up until Koo’s election had been either Indian or Pakistani jurists. Pre-partition British India had attempted to get Sir Muhammad Zafarullah Khan on the Court based on the Statute and the argument that India had been a party to the previous Permanent Court of Justice but never had a judge on the bench.Footnote 23 With only half-hearted British support, Zafarullah Khan’s candidacy failed.Footnote 24 He would later nevertheless have a successful career on the Court as post-partition Pakistan’s nominee. In the meantime, independent India managed to put Sir Benegal Narsing Rau on the bench for just one year. India and Pakistan viewed their ICJ bids as proof of their sovereign statehood, much as China saw its seat as a reflection of its great power status. This underscores why the jurisprudence of judges such as Koo, even when in the minority, serves a greater purpose beyond legal scholarship or rulings. Their presence and participation reflected a moment in the early postwar when actors from beyond the West strove to transform the international order into one that could equally work for states beyond the North Atlantic.
Delineating Sovereignty
The first pair of cases Koo heard on the bench concerning decolonization, Right of Passage over Indian Territory and Temple of Preah Vihear, asked the Court to interpret the legal meaning behind international treaties and delineate the limits of territorial sovereignty. In his separate opinion in Right of Passage and dissenting opinion in Preah Vihear, Koo emphasized the importance of carefully considering historical developments as they pertained to legal disputes and acknowledging the reality of power imbalances that might be overshadowed by minute considerations of technical aspects of international law.
Still trying to hold on to its colonies in South Asia, in 1954, Portugal sought to dispatch troops from its coastal colony of Goa to quell uprisings in the enclaves of Dadra and Nagar-Aveli. To reach the enclaves, Portuguese troops needed to pass through Indian territory. India denied passage. Portugal argued that it had both customary and treaty rights to do so and thus brought the case to the ICJ.Footnote 25 On the surface, this appeared a straightforward case in which the Court could decide whether it stood on the side of decolonization or that of empire. After all, Portugal desired passage for colonial control, while separatist activists in the enclaves, aligned with the Indian National Congress, demanded independence through unification with India. Moreover, Portugal claimed that it had the right of passage, including with its armed forces, under existing practice and treaties it had concluded with the British colonial government.
The Court rejected most of India’s preliminary objections, but it deferred two objections to be considered with merits i.e. with the legal evidence of the case. The overruled objections contested Portugal’s right to petition the Court given its non-membership in the UN when the dispute occurred. Meanwhile the remaining two objections claimed the matter was one of Indian domestic jurisdiction and that, accordingly, the dispute fell outside the scope of the Court.Footnote 26 In private deliberations, the judges voted on twenty separate questions all ending up with overlapping majorities and minorities.Footnote 27 Ultimately, the Court found that it had jurisdiction to hear the case and rejected India’s remaining objections. It concluded that Portugal had the right of passage through Indian territory, but that right did not extend to military forces. It then also ruled that India however did not violate its customary and treaty obligations when it refused Portuguese civil passage after Portugal had lost de facto control over the enclaves, as a returned Portuguese presence could create significant unrest in sovereign Indian territory.Footnote 28
The patchwork majority in the judgment led to a wide range of separate and dissenting opinions. A few members of the Court completely disagreed with the outcome and thought India should have fully prevailed. Sir Percy Spender, the future antagonist in South West Africa, thought that the judgment did not go far enough. To him, the merits pointed towards Portugal having full rights including military transit and he argued that India violated its obligations in denying passage even in 1955.Footnote 29
Koo agreed with Spender that the Court should have declared that Portugal’s right of passage included armed personnel and ammunition, though he declined to comment on whether India violated its obligations. He arrived at his conclusion on the right to armed passage through his reading of the historical relationship between the British colonial government and the Portuguese enclaves. Koo began his account with an 1859 incident when the Governor-General of Goa protested to the Governor of Bombay after British authorities disarmed Portuguese troops accompanying a judge traveling from Goa to one of the enclaves. This scandal led to the 1878 Anglo-Portuguese Treaty of Commerce and Extradition which explicitly permitted passage for armed Portuguese units subject to prior authorization. Koo argued that in practice British authorities never interfered with passage — civil or military — if personnel possessed the necessary passes.Footnote 30 His interpretation combined treaty text with the context and customary practice.
As the successor state to British India, Koo opined, the Republic of India inherited under international law its obligations to grant passage to Portugal. India also had, until 1954, allowed relatively hassle-free passage for armed personnel, which went beyond the letter of the treaty. Since this custom had been in place for almost a century, Koo believed that Portugal had the right to expect the maintenance of this practice. This coexisted with Portugal’s sovereign rights to exercise control over its enclaves while doing so in a way that respected the sovereign rights of the surrounding state — British India, later the Republic of India. During oral arguments, the counsel for India asked, “When — where — by whom — did the Indian Union recognize Portugal’s territorial sovereignty?”Footnote 31 Koo dismissed this challenge stating that international law did not require explicit recognition of sovereignty and that India had done so tacitly through engaging with Portugal in negotiations over the future of Portuguese territories on the subcontinent.Footnote 32 This opinion left no ambiguity as to whether a postcolonial state should be bound to international obligations left by its former colonial rulers. For Koo, India was the British Raj’s legal successor.
Koo accepted that this reasoning might seem circular or contradictory. To him, the very nature of international law called for constantly weighing the rights of both parties and applying them based on specific situations. In this case, the right of passage of the enclaves’ sovereign and the right of the sovereign of the surrounding territory to control that area were not contradictory. As customary practice had shown, the peaceful coexistence of those two rights relied on mutual faith and goodwill—that the surrounding state would permit passage under reasonable terms and that the passing state would do so in a way that respected the host country. Never short of metaphors, Koo compared this to how “during the spring thaw a river rising high with water discharges it deep into the ocean and, during the flow of the tide, the ocean pushes its tide water well up the river, without denying the existence of either.” There was no intrinsic conflict, he continued, “for customary international law is no less resourceful than the law of geophysics.”Footnote 33
Right of Passage represents the least anticolonial of Koo’s jurisprudence. He generally agreed with the majority that Portugal had the right to access its enclaves, including militarily to maintain and exercise Portuguese sovereignty. Not only did the opinion call into question the subcontinent’s political unity — which Jawaharlal Nehru claimed as requisite to completing the full decolonization of India — but it also maintained that the postcolonial state should remain bound to an obligation entered by its former colonial ruler with another empire.Footnote 34 Unlike many anticolonial nationalists, Koo did not believe in an absolute, inviolable sense of national sovereignty. This theme briefly resurfaced, again in the context of India, when the Court received a submission from the “Federal Government of Nagaland,” proactively accepting the Court’s jurisdiction. A member state of the UN would usually submit such notice to the Secretary-General in New York and not directly to The Hague. While his colleagues outright rejected the idea, Koo noted to the Registrar of the Court that maybe it should examine first the sovereign status of Nagaland vis-à-vis India. He further raised precedents for semi-sovereign states in international institutions, such as the then-French Protectorate of Vietnam signing the Treaty of San Francisco in 1955 or the UN admitting the Belarusian and Ukrainian Soviet Republics at the San Francisco conference in 1945.Footnote 35 His memo implied that semi-sovereign entities might be able to participate in and receive protection from the Court.
The issue of delineating sovereignty returned when Cambodia filed an application in 1959 asking the Court to adjudicate whether the Temple of Preah Vihear belonged to Cambodia or Thailand. The Temple, known as Preah Vihear in Khmer and Phra Viharn in Thai, is a ninth century Khmer temple, predating the better known and larger Angkor Wat complex built in the twelfth century. It stands on a clifftop along a mountain range that marked the former border between Siam and French Indochina.Footnote 36 The application claimed that a map drawn up by a joint Franco-Siamese boundary commission in 1903 had placed the Temple on the French Cambodian side of the border. As the successor state, Cambodia asked the Court to force Thailand to relinquish control over the Temple based on the map boundary.Footnote 37
Before French colonial rule, Siam had commanded, at different stages, sovereign or suzerain rule over parts of present-day Laos and Cambodia.Footnote 38 The Thai nationalist narrative retroactively viewed the Franco-Siamese boundary demarcation as a cession of territory to the French Empire.Footnote 39 During the Second World War, Thailand allied with Japan and the so-called Greater East Asia Co-Prosperity Sphere. The fall of France in 1940 provided an opportunity for the Thai military government under Field Marshal Plaek Phibunsongkhram to drum up jingoistic sentiments and invade weakened French Indochina to recover what he viewed as “lost territories.”Footnote 40 Japan stepped in to mediate between Thailand and Vichy France, after which Vichy ceded northwestern Cambodia to Thailand. After the end of the war, the United States saved Thailand from defeated power status on the condition that it renounced wartime territorial gains to placate France and the United Kingdom.Footnote 41 Nevertheless Thailand maintained troops it had stationed on the grounds of the Temple of Preah Vihear during the war.
As the French position in Indochina became increasingly untenable in the early 1950s, French authorities gradually ceded civil control to local officials before Norodom Sihanouk of Cambodia declared independence in the fall of 1953. To shore up domestic support and gain international attention, Sihanouk made quarrelling with Thailand and South Vietnam central to his foreign policy.Footnote 42 Phibunsongkhram, the Thai military dictator, had also returned to power as a pro-western anti-communist leader. In this context, the dispute over the Temple reflected Sihanouk’s desire to prove his “neutralist” bona fides in comparison to his pro-American neighbours.Footnote 43 He instructed the Cambodian mission to appeal to the UN against Thai irridentism and threatened to go outside the UN and request military support from Communist China.Footnote 44 Referral to the International Court of Justice was the last of many steps in Sihanouk’s attempts to internationalize the Thai-Cambodian dispute.
On the surface, Temple of Preah Vihear seemed like a rather routine border dispute between two states, and over the preceding decade, the Court had become accustomed to adjudicating them.Footnote 45 The majority judgment approached the merits first in technical terms. Through documentary evidence, it concluded that Cambodia’s submission of French maps, specifically Annex I from the Franco-Siamese Mixed Commission, showed that the Temple stood firmly on the Cambodian side of the border.Footnote 46 The Thai response to the allegations claimed that, although the Annex I map was indeed genuine, Siam never accepted a specific border but rather a general agreement to follow the watershed line. Judges in the majority did not find this argument persuasive. They invoked the principle: he who remained silent is understood to have consented.Footnote 47 Unlike Right of Passage, this case did not prove contentious in private deliberations and an overwhelming nine to three majority ruled in favour of awarding the temple to Cambodia.
Why did Koo find himself in the small minority? His dissenting opinion in this case was primarily directed against the majority’s belief that silence implied consent. He first reconsidered the majority’s documentary analysis. To Koo, it did not appear fully obvious that the Annex I map had the full binding force of a treaty, but instead it was “no more than a conjecture.”Footnote 48 The mandate of the joint commission had been to investigate the conditions of the boundary, not to set in stone anything beyond a general understanding along the watershed line.Footnote 49 Based on this view, the claim that Thailand had acquiesced could not be derived from textual interpretation or cartography alone. Instead, it relied on Thailand tacitly permitting the French to exercise sovereignty over the Temple.
The Cambodian petitioners claimed that Thailand had acted according to the Annex I map. In 1930, a Siamese Prince, Damrong Rajanubhab, visited the temple on an archaeological mission, where he was received by a French colonial official who had also put up a French flag on the temple grounds. The majority viewed this as an example of Siam recognizing French sovereignty over the temple, as Bangkok did not make a diplomatic protest. Koo in his dissent quoted from the recollections of the Prince’s daughter who had accompanied him on that trip. “It was generally known at the time that we only [would] give the French an excuse to seize more territory by protesting. Things had been like that since they came into the river Chao Phya with their gunboats and their seizure of Chanthaburi.”Footnote 50 Koo went on to discuss the behaviour of the French official, noting that, “the display of his national flag by a foreign official, even by a private Occidental, was not an uncommon sight in an Asiatic country during that epoch.” As such it had no legal significance for the sovereignty of the territory. Koo’s allusion to western behaviour in Asia could have come both from his own personal experience growing up next to the international concession in Shanghai as well as from his work on extraterritoriality in China.Footnote 51 That the Prince, instead of voicing his displeasure, sent a message thanking French colonial officials and attached a few photographs, was simply a “customary act of Oriental courtesy.”Footnote 52
This line of argument also extended to how Thailand had acknowledged receipt of copies of the joint commission’s map without explicitly stating it recognized the specific line as the border. Koo argued that Thailand was in no position to lodge a meaningful protest without incurring political repercussions. He remarked that this situation was not unique to Thailand: “It was, generally speaking, the common experience of most Asiatic States in their intercourse with the Occidental Powers during this period of colonial expansion.”Footnote 53 Because of this, he argued the majority’s invocation of a Roman dictum did not apply, as the silent party could not speak. Koo pointed out that when the “relative position of Siam vis-à-vis French Indo-China became less unbalanced,” after the fall of France during the Second World War, Thailand actively exercised sovereignty over the Temple.Footnote 54
In a way, while the case before the Court was Cambodia v. Thailand, Koo’s dissent made it seem as if the case could have been French Indochina v. Thailand. While the other dissenting judges shared the view that the watershed line served as the correct boundary and therefore the Temple should belong to Thailand, they did not mention the difference in applying international law within the context of imperial inequalities.Footnote 55 Koo’s empathy for Asian states acting under duress reflected his own personal and professional experience of growing up and serving a China that had made plenty of treaty concessions in the face of “gunboat diplomacy.” It also shows that he believed countries that had historically suffered from imperialism should be able to expect protection in international law, even if the majority had denied that to Thailand here. The anti- and postcolonial undertones to this dispute did not elude contemporaneous observers. The Thais felt let down by their American allies, as former Secretary of State Dean Acheson, albeit in his personal capacity, served as a counsel for Cambodia.Footnote 56 Sihanouk celebrated the decision as proof of legitimacy for his regime while effusively offering gratitude to his former colonial masters, the French, for supporting the Cambodian litigation with documents and legal counsel.Footnote 57
Two things stand out from these cases regarding delineations of national sovereignty in the era of decolonization. The first is Koo’s logic. While he argued historical conditions had prevented Siam from protesting French acts, he did not extend such grace to the postcolonial Indian government. Instead, he wrote in his separate opinion in Right of Passage that the lack of formal opposition from India regarding Portuguese rule of the enclaves constituted tacit recognition of Portuguese sovereignty. Unlike the power imbalance evident during the Franco-Siamese negotiations, Portugal did not use, implicitly or explicitly, the threat of military force to secure its right of passage. In fact, when it came to the postwar period, Portugal had chosen to lodge its complaint at the Court precisely because it could not defend its rights militarily and sought instead for judicial relief. In this case, perhaps Portugal, despite being the western overseas empire, had more in common with Thailand than with France.
The second aspect is how the actual situation on the ground was resolved. Even after the Cambodian court victory, Sihanouk doubted that Thailand would hand over Preah Vihear. He did not command sufficient military power to take the Temple by force, and officials in Phnom Penh, as well as the diplomatic corps, thought the best Cambodia could gain from the judgment was some decent propaganda.Footnote 58 Many participants at the San Francisco conference, including Koo, had lamented that the UN did not have any meaningful mechanism to enforce the rulings of the Court.Footnote 59 In fact, Thailand ended up respecting the Court’s judgment, withdrawing its forces from the temple, and handing over control to Cambodia.Footnote 60 In respecting the Court’s judgment, Thailand helped set a precedent that disputes under the UN order could indeed be resolved through legal and peaceful means. This was a different story from the subcontinent. Although the Court ruled in favour of Portugal, by the time of the judgment, Portuguese sovereignty over the enclaves had become irrelevant. The denial of armed passage meant Portugal had effectively surrendered the enclaves to Indian nationalists. Meanwhile India no longer viewed negotiations with Portugal or international recourse as effective means to achieve its political desire of uniting the subcontinent. In December 1961, Nehru authorized an armed invasion of Goa and annexed the territory by force.Footnote 61 Comparing the outcomes of these two cases ultimately reflected the limitations confronting the Court in shaping how decolonization would unfold.
Adjudicating the Sacred Trust
The second pair of cases complicating decolonization that came to the Court during Koo’s tenure involved the UN’s trusteeship system and the transformation of colonial territories into independent states. Both Northern Cameroons and South West Africa probed the extent to which the Court was willing to take initiative in judging how trust territories were being administered and whether the international judiciary provided an avenue to contest delayed decolonization and independence. While Northern Cameroons remained relatively academic, the litigation over the status of South West Africa at the Court and its broader struggle at the UN has served as a rallying issue for anti-apartheid activists and international decolonization movements.Footnote 62
After separate plebiscites in northern and southern Cameroons held in February 1961, the people in the northern part voted to join the Federation of Nigeria, while the south chose to join the independent Republic of Cameroon, formerly a French trust territory.Footnote 63 In April, the UN General Assembly passed Resolution 1608 (XV) endorsing the results of the plebiscites and authorized the termination of the trusteeship agreement over the Cameroons.Footnote 64 The Republic of Cameroon disagreed with these results, arguing that postcolonial Cameroon should encompass both the British and French trust territories. The government in Yaoundé filed an application to the International Court of Justice against the United Kingdom. It alleged that the British had violated its obligations under the trusteeship agreement for Northern Cameroons and created the conditions of governance that led Northern Cameroons to join Nigeria instead of the Republic.Footnote 65 Prior to its application, Cameroon, with the help of the French Ambassador in London, asked the British government if it wished to jointly make the application to the Court for judgment. Cameroon’s ambassador to France, Moukouri Kuho, conceded that his government did not think that the Court would overturn the General Assembly resolution. The Republic simply wished to exhaust all possible means of recourse to satisfy those who were upset about the settlement in Northern Cameroons.Footnote 66 British officials meanwhile were confident that they would prevail, though their primary focus was to end the case on preliminary objections and not on merits. Although they believed they had the stronger legal case on merits as well, the Foreign Office feared that a lengthy trial would create negative publicity for the United Kingdom, especially if “unpleasant allegations” against British colonial governance had to be refuted in open Court.Footnote 67 As it did not seek any concrete remedies from the Court, for Cameroon this case was about “saving face.”Footnote 68 For Britain, what was at stake was the potential of “losing face” if the case went south. Therefore, the British government declined the offer to bring a joint petition to the Court.
Given this backstory, nobody found the ruling surprising. Based on preliminary objections, the majority judgment decided that the Court could not consider the merits.Footnote 69 The majority did overrule the British argument that there was no dispute between Cameroon and the United Kingdom. The British respondents had argued that since the trusteeship agreement had ended, if Cameroon had a dispute at all, it should be with the UN, not London.Footnote 70 The Court however found that the difference in understanding of the international situation constituted a dispute between states under international law. Although the Court ultimately had jurisdiction, it chose not to exercise it, as the Court did not believe it should make a purely declaratory judgment that would lead to no remedy and could potentially harm the validity of a decision made in the UN General Assembly.Footnote 71 In this sense, the majority of judges here chose to exercise judicial restraint and defer to the political branch on this question.
By the standards of the Court, this case was quick, short, and academic. Unlike Right of Passage or Temple of Preah Vihear, Koo did not have a substantive issue with the majority, although he used his separate opinion to explore the legal rights and responsibilities of trusteeship. This was driven by the United Kingdom’s claim that its administration of the trust territory was not subject to judicial review. The trusteeship agreement stated in Article 19 that the United Kingdom acknowledged the jurisdiction of the Court in the case of a dispute about the trust territory.Footnote 72 As the Republic of Cameroon had joined the UN prior to the end of the trusteeship agreement, it had the same rights as any other member in overseeing the administration of UN trust territories. While each trust territory had a specific administering power, it governed the territory on behalf of the entire UN.Footnote 73 In his separate opinion, Sir Gerald Fitzmaurice disagreed and argued that the right to oversee the administration of a trust territory did not extend to states that had joined the UN after the start of the trusteeship agreement.Footnote 74 The stakes eluded by the majority judgment lay essentially in the question of whether all members of the UN had equal rights regardless of when they joined. In Koo’s view, there could be no de facto two classes of UN members, “original” and “new” members, the latter of which were primarily newly independent postcolonial states that were more likely to have objections to agreements the organization had made prior to their own statehood and admission. For Koo, Cameroon lacked legal interest not because of a limited reading of Article 19, but because its interests were primarily of a political nature. He concluded by returning to his institutionalist views on trusteeship and celebrated that “one of its most solemn obligations” was the advancement of its inhabitants to independence, which the UN General Assembly resolution had accomplished.
Trusteeship returned in the case concerning South Africa’s administration of the South West Africa League of Nations mandate. The chief architects of the 1966 majority in South West Africa, Sir Percy Spender and Sir Gerald Fitzmaurice, built on their separate opinions in Northern Cameroons for what they saw as limited, textualist readings of mandatory and trusteeship agreements regarding the kind of obligations the administering power had to the international organization, whether League or UN.Footnote 75 Based on the same argument that allowed them to deny Cameroon’s legal interests, Spender and Fitzmaurice worked to reverse the 1962 decision that accepted Ethiopia and Liberia’s legal interests as members of the former League in the administration of South West Africa. As with Northern Cameroons, these two judges sought to engineer a ruling for South West Africa based on jurisdiction that would render moot any considerations of the merits. Across almost sixty pages, the majority declined to consider, on merits, Ethiopia and Liberia’s allegations that South Africa failed to fulfil its treaty obligations as the administrator of the South West Africa Mandate (today independent Namibia). They posited that Ethiopia and Liberia had neither legal rights nor interests in bringing the case to the Court, dismissing the case on standing.Footnote 76 In its judgment, the Court reversed not only its ruling in 1962 upholding the applicants’ right to bring the case to the Court, but also its earlier 1950 advisory opinion that regarded the mandatory agreement for South West Africa as a binding treaty under international law.
Koo worked backwards from the “solemn obligations” of trusteeship in Northern Cameroons to the “sacred trust” in the League’s mandate system pertinent to the South West Africa case. His dissenting opinion began with a history of the mandate system and how it emanated from Woodrow Wilson’s insistence that the Treaty of Versailles renounce annexation by conquest and instead set up a system endowing administering powers with the “sacred trust” to oversee colonial territories dismembered from the German Empire in the interests of their inhabitants.Footnote 77 In this sense, the League had to protect the interests of the people of the mandates. Koo argued that this included not only the Permanent Mandates Commission, but also the League Council, Assembly, and the Permanent Court of International Justice. As the Court upheld in previous decisions concerning South West Africa, the UN, as the successor organization to the League, inherited jurisdiction over the mandate system including the ICJ, which replaced the defunct Permanent Court.Footnote 78 By this logic, Ethiopia and Liberia still had the legal rights to litigate this case at The Hague in the same way that they did four years earlier.
After this preamble, Koo believed it was appropriate to briefly consider the merits of the case in his dissent. This, along similar choices in other dissents, drew the ire of Sir Percy Spender. The court president appended a declaration complaining how the dissents considered at length the merits when he believed they should not have, since the Court had only ruled on jurisdiction.Footnote 79 While he disapproved of his dissenting colleagues in this case, just a few years earlier, Spender had strongly advocated for judges to have the liberty to append whatever kind of separate or dissenting opinions as they saw fit.Footnote 80 Just a year and a half previously, Koo had undertaken a brief investigation into the topic of separate and dissenting opinions and found no useful prescriptive formula.Footnote 81 Spender had agreed with this conclusion and did not find issue with it: that is, until the dissent as a genre became the minority’s response to his majority judgment.Footnote 82
The merits, according to Koo, relied on whether the acceptance of the “sacred trust” in mandate administration implied “a moral or humanitarian obligation” as intended in the League Covenant, even while there was no binding legislation. His dissent emphasized how the administration of a mandate was not supposed to be in the interests of the administrator but rather in the interests of the inhabitants. The policy of apartheid, as practiced in South West Africa, constituted a grave violation of the “sacred trust” as the “unjustifiable principle of discrimination based on grounds of race, colour or ethnic origin” ran contrary to the development of its inhabitants’ well-being and social progress.Footnote 83 South Africa in its defence feigned ignorance about such international obligations expected by the League or the UN. Koo found this unconvincing. He noted that South Africa participated actively in drafting the UN Charter that reaffirmed those obligations.Footnote 84 South Africa’s refusal to submit its administration of South West Africa to international accountability and its myopic argument therefore constituted a violation of its mandate. While the Court signalled a deference to the political organs of the UN, Koo broke with the judgment to argue that both the UN’s “solemn obligations” and the League’s “sacred trust” with respect to dependent territories constitute enforceable international law. His belief in the trusteeship system did not detract from his anticolonial bona fides. Instead, it constituted the basis of his jurisprudence that allowed for a judicial pathway for contestations of decolonization.
Conclusion
The civilizational rhetoric employed in Koo’s South West Africa dissent provides for an apt angle to consider his jurisprudence as a whole. His commitment to invoking the “sacred trust of civilization,” suggesting that it implied any moral or humanitarian ideals, would appear today as either anachronistic or espousing western colonial chauvinism.Footnote 85 Koo nevertheless talked about civilization in a universal sense. Given his diplomatic career, he was not blind to the hypocrisies and horrors committed in the name of this mission. Yet he truly believed that there was a possibility the international community could use the “sacred trust” for the betterment of all mankind. He also subversively took the phrase that upheld imperial interests in the League and put it in service of a post-imperial UN order. By the latter half of the 1960s, however, liberal international institutions found few believers beyond the North Atlantic. South West Africa had brought attention to the Court and the slim majority galvanized both supporters and detractors of the judgment to seek to alter the bench.Footnote 86 As Koo neared the end of his term in 1967, Taipei failed to secure the votes for his re-election due to the shift in international recognition in favour of the Beijing government.Footnote 87 Perhaps ironically, this swing in favour of Beijing at the UN was mostly thanks to the increasing number of newly independent states. The end of empire which Koo had championed led to the end of his judicial career. Instead of publicly losing the vote, Koo chose to retire citing his age and deteriorating health.Footnote 88 His colleagues regretted that Koo would not return to The Hague. Philip Jessup lamented that, had elections to the Court been based on individual merit, Koo would have been re-elected immediately.Footnote 89 Sir Gerald Fitzmaurice saw this as evidence of excessive politicization and an attempt to “pack” the Court.Footnote 90
Following the Court’s 1966 decision in South West Africa, the General Assembly passed in that year Resolution 2145 (XXI) terminating South Africa’s mandate of South West Africa.Footnote 91 Four years later, the Security Council in Resolution 276 (1970) declared the continued presence of South Africa in South West Africa/Namibia as illegal and ordered South Africa to withdraw.Footnote 92 It then requested in Resolution 284 (1970) an advisory opinion from the ICJ on the legal consequences of South Africa’s continued occupation of Namibia and refusal to comply with General Assembly and Security Council resolutions.Footnote 93 Having departed the bench, Koo followed these deliberations as private person. The Court ruled that South Africa’s continued presence in Namibia was indeed illegal and that it had to immediately withdraw from the territory.Footnote 94 While writing to a former colleague, he applauded the Court’s ruling for the “noteworthy effort under law to remedy the situation” created by the 1966 judgment he had dissented from.Footnote 95
In adjudicating disputes brought by those frustrated with decolonization’s sovereign trajectories, Koo revealed himself as someone who too was discontented — not necessarily with the demise of empire, but with the end of opportunities for anticolonial liberal internationalism. This world after empire reified the telos to the nation-state immune from political and judicial international accountability. Labelling his opinions as “anticolonial” or “imperial” simply based on which country he voted for creates a false binary in looking at the role that international law had during the period of decolonization. Instead, as this paper has shown, the Court chose to avoid entertaining “edge cases”— situations that did not conform with mainstream decolonization and the international system more broadly. This aversion to the unfamiliar was especially clear in the Court’s “non-decisions,” its rulings on jurisdiction. By refusing to judicially decolonize South West Africa in 1966, the Court decided that it would not follow Koo’s attempts to decolonize the substance of international law and the anticolonial reading of the “scared trust.”
But the lack of unanimity on the Court – and particularly Koo’s affinity for “edge cases” – nevertheless reveals alternative international orders that could have emerged from the world of empires. Perhaps a patchwork of Portuguese territories could coexist with Nehru’s dream of a unified Indian subcontinent; that maybe there was more to a boundary dispute than surveying the line drawn on a map; that trusteeship could flip the imperial origins of the mandatory system on its head for the true betterment of its inhabitants. Nevertheless, institutions such as the Court still served as a valuable venue for those discontent with decolonization to make their cases — not only in the sense of litigation, but also in the way that judicial appeals allow for local issues to scale up into contestations about the very nature of the international system. The dissents of a discontented judge also leave behind an afterlife for political aspirations otherwise foreclosed as an appeal to statesmen and jurists of the future.Footnote 96
Acknowledgements
I would like to thank Elisabeth Leake and Erez Manela for organizing the Decolonization’s Discontents workshop hosted at Harvard University and Tufts University and for editing this special issue. I am especially grateful for their careful feedback on multiple drafts of this article. I would also like to thank the contributors and discussants at the Decolonization’s Discontents workshop, especially Lydia Walker and Emma Kluge, for their comments on an earlier version of this article.
Funding statement
I would like to recognize the generous funding that made research for this article possible from the Gerda Henkel Foundation as well as the Department of History, the Carolina Asia Center, and the Graduate School at the University of North Carolina at Chapel Hill.
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